IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 Crl.Rev.Pet.No. 1820 of 2011() ------------------------------------------- CRA.170/2009 of SESSIONS COURT, KASARAGOD CC.429/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD. .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ---------------------------------------------------------- PRADEEP.V,S/O.LAKSHMI,AGED 29 YEARS, KOLOT HOUSE, KOLATHUR POST, CHENGALA VIA, KASARAGOD TALUK,KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT --------------------------------------------------------------------------------------- 1. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.SHRI RAM TRANSPORT FINANCE COMPANY LIMITED,IST FLOOR,THALANGARA GATE,OPP.IBP PETROL PUMP, NULLIPADY,KASARAGOD,REP.BY ITS GENERAL POWER OF ATTORNEY HOLDER K.RAJAN,S/O.K.KANNAN LEGAL CONSULTANT,SHRI RAM TRANSPORT FINANCE CO.LTD KANNUR BRANCH,KANNUR,PIN 670 001. R1 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR. R2 BY ADV. SRI.RAJESH NAMBIAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1820 OF 2011 ----------------------------------- Dated this the 17th day of August, 2011 O R D E R Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. The revision being filed with a petition to condone delay, notice was ordered to the 2nd respondent, and after hearing both sides, delay was condoned. Today when the revision was taken up, counsel on both sides are present and the learned counsel for the 2nd respondent submits that no further notice is required in the revision. 2. The learned counsel for the revision petitioner/accused submitted that he has no challenge on merits against the conviction but only with respect to the sentence imposed awarding a substantive term of imprisonment for a period of 15 days over and above directing him to pay the fine fixed with Crl.R.P.No.1820/2011 2 the default term. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no exceptional circumstances warranting the imposition of a prison term as against the petitioner - an offender found guilty of the offence under Section 138 of the N.I.Act. No doubt, penal provisions have been brought in to the aforesaid Act to give more sanctity to commercial transactions by use of cheque, a negotiable instrument. But that is not the sole criteria in considering the question whether as against the offender, whose cheque was dishonoured on presentation, and payment was not made by him after issuing of the statutory notice, his incarceration as part of the punishment if found guilty is warranted. That is to be decided with reference to the totality of the facts and circumstances involved in the case relating to the dishonour of the cheque and also non-payment of the sum covered by the instrument. Since there is no exceptional circumstance warranting a prison term as against the petitioner Crl.R.P.No.1820/2011 3 in the present case, I find the substantive term of imprisonment imposed against him can be reduced and modified to imprisonment for a day. 4. Confirming the conviction of the petitioner/accused for the offence under Section 138 of the N.I.Act, sentence imposed against the petitioner shall stand modified and reduced to imprisonment for a day till the rising of the court, with the liability to pay a fine of Rs.88,000/- with default term of simple imprisonment for three months as fixed by the learned Sessions Judge in appeal. 5. Petitioner is directed to appear before the learned Magistrate on 03.10.2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report payment of the compensation. The learned Magistrate is directed to keep in abeyance the execution of the sentence against the petitioner till the date fixed as above for his appearance. In default of the petitioner to appear and to report Crl.R.P.No.1820/2011 4 the payment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. With the above directions, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.1820/2011 5