IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.Rev.Pet.No. 843 of 2011() ----------------------------- CRA.256/2003 of Addl.Sessions Court (Adhoc II), Kasargod CC.62/2003 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): REVN.PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ P.MOHAMMED SHAFI, AGED 40 YEARS, S/O. ABDULLA, PARA HOUSE, POST PATLA, KASARGOD TALUK AND DISTRICT. BY ADV. SRI.S.JIJI RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. SATHEESHAN K., POWER OF ATTORNEY HOLDER OF M/S. KASARGOD SELF EMPLOYEES FINANCING COMPANY LTD., KASARGOD-671 121. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.843 OF 2011 ------------------------------------------------- Dated this the 23rd day of March, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is unreasonable and exorbitant and therefore a lenient view may be taken and the petitioner may be granted sufficient time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel requires positive consideration. 3. The cheque in question is dated 13.03.1997, that too, for an amount of Rs.40,000/-. Inspite of the concurrent findings of the court below and though the sentence of imprisonment reduced into one day simple imprisonment, so far no money is seen paid to the complainant. The apex court, in its recent Crl.R.P.NO.843 OF 2011 2 decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, according to me, the sentence of imprisonment ordered by the court below requires modification and when granting some time to pay the fine amount the interest of complainant is also to be protected. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. Accordingly, the sentence of imprisonment as modified and fixed by the appellate court and the default sentence are confirmed. But the fine amount is enhanced and the petitioner is directed to pay a fine of Rs.68,000/- within 45 days time from today and in default he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 09.05.2011 to receive the modified sentence of imprisonment fixed in the appellate court and to pay the fine as ordered by this Court. If there is any failure on the part of the revision petitioner in complying with any of the above condition, the trial court is free to take steps to execute the sentence and for Crl.R.P.NO.843 OF 2011 3 realisation of fine amount. On realisation of the fine amount a sum of Rs.65,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.3,000/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 9th May, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm