IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 392 of 2006() ----------------------------- CRA.420/2003 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.37/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... REVN. PETITIONER: APPELLANT/1ST ACCUSED: ------------------------------------------- S. SUDHAKARAN PILLAI, S.S. ELECTRONICS, MARKET ROAD, KARUNAGAPPALLY P.O., KOLLAM DISTRICT. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: COMPLAINANT & STATE: ----------------------------------- 1. RADHAKRISHNAN, MANNARATHALA PUTHEN VEEDU, ATHIYANOOR VILLAGE, ATHIYANOOR DESOM, FOR THUSHARA TRADERS, NEYYATTINKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.M.RAMASWAMY PILLAI FOR R1 SRI.P.M.JOSEPH FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 392 of 2006 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2010 O R D E R This Revision petition is filed by the accused in C.C. No. 37 of 1998 on the file of the Judicial First Class Magistrate Court -I, Neyyattinkara challenging the conviction and sentence passed against him for the offence punishable under Section 138 of N.I. Act. The cheque amount was Rs.77,170/-. In the Trial Court, the accused was convicted and sentenced to undergo simple imprisonment for a period of six months under Section 138 of the N.I. Act. He was also directed to pay compensation of Rs.75,000/- to the complainant under Section 357(a) of Cr.P.C., in default to undergo further imprisonment for a period of two months. The appeal filed against that conviction and sentence was allowed in part and in supercession of the sentence passed the accused was sentenced to undergo imprisonment for one Crl.R.P.No. 392 of 2006 2 day till the rising of the court and he was ordered to pay compensation of Rs.78,000/- as provided by Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for three months. 2. I heard the learned counsel for the revision petitioner, learned counsel for the complaint and the public prosecutor. 3. The learned counsel appearing for the revision petitioner reiterated the same contention raised before the Trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below. 4. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the Revision petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts Crl.R.P.No. 392 of 2006 3 have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.78,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The Revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within six months from today Crl.R.P.No. 392 of 2006 4 and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount, if any, deposited in the trial court by the accused can be given credit to. 6. In the result, this Revision petition is disposed of confirming the conviction entered and by modifying the sentence imposed on the revision petitioner. (M.L. JOSEPH FRANCIS) Judge tm