IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 2270 of 2010 ------------------------------ CRA.505/2008 of ADDL. SESSIONS COURT (FAST TRACK)-II, ALAPPUZHA CC.84/2007 of CHIEF JUDICIAL MAGISTRATE'S COURT, ALAPPUZHA .................... REVISION PETITIONER/APPELLANT/ACCUSED SUBHADRAN, S/O.GOPALAN, GEETHANJALI, KOMANA, AMBALAPUZHA,ALAPPUZHA. BY ADV. SRI.P.VINODKUMAR SRI.T.C.SANTHILAL RESPONDENT: RESPONDENT/COMPLAINANT 1. SIVASANKARA KURUP, S/O.KUTTAPPA PANICKER, ACHA MADOM, AVALOOKKUNNU PO , PALAKKULAM, ALAPPUZHA,. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.MURALEEDHARAN PILLAI & ADV. SRI.P.V.LONACHAN R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R FROM THE ENDORSMENT CONTAINED IN THE FILE, IT APPEARS THAT NEITHER THE REVISION PETITIONER NOR THE COUNSEL IS INTERESTED IN PROSECUTING THE MATTER. THEREFORE, THIS CRL. R.P. IS DISMISSED FOR NON- PROSECUTION. 23.9.2010. SD/- V.K. MOHANAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.2270 of 2010 ---------------------------------------- Dated the 3rd Day of June, 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 submitted that the sentence imposed against the revision petitioner is unreasonable and exorbitant. It is also the submission of the learned counsel that the petitioner requires some time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the submission made by the counsel for the revision petitioner can be considered positively. 3. It is relevant to note that the cheque in question CRL.R.P. 2270/10 2 is dated 13.11.2006, that too for a sum of Rs.1,40,000/-. According to the findings of the courts below, which approved by this Court, the said amount is due to the complainant, but the same is with the revision petitioner for the last 5 years. The Apex Court, in its recent 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. In the light of the facts indicated above and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration but at the same time the interest of the complainant has also to be protected considering the fact that such a huge amount is due to the complainant for the last five years. 4. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner under section 138 CRL.R.P. 2270/10 3 of the NI Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e., till the rising of the court. As the substantial sentence is reduced considerably, the fine amount fixed by the courts below is enhanced and accordingly, the revision petitioner is sentenced to pay a fine of Rs.1,75,000/- (Rs.one lakh and seventy five thousand only) within two months from today, in default, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 3 rd August, 2011 to receive the modified sentence and to deposit the fine amount fixed by this court, on the date of his appearance. If there is any default on the part of the petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against CRL.R.P. 2270/10 4 the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. On reaslisation of the fine amount, a sum of Rs.1,70,000 (Rs.one lakh and seventy thousand only) shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.5000/- shall be deposited in the State ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 3 rd August, 2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/- CRL.R.P. 2270/10 5