IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 Crl.Rev.Pet.No. 2417 of 2011() -------------------------- CRA.51/2009 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N. PARAVUR CC.850/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA .................. PETITIONER/APPELLANT/ACCUSED : ------------------------------------------------------- M.A.NAZAR, AGED 39 YEARS, S/O.ABDUL KHADER, MADAPPATTUPARAMBU HOUSE, VENNALA P.O., KOCHI-28. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENTS / RESPONDENTS / STATE AND COMPLAINANT : ------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SWASRAYA KARSHAKA VIPANY CHALAKKA, REG.NO.1346/01, KUTHIYATHODU POST, PIN-688533, REP. BY THE PRESIDENT, T.G.SATHEESH KUMAR, S/O.GANGADHARAN NAIR, THARAMAL HOUSE, VAYALKARA. R1 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2417 OF 2011 ----------------------------------------- Dated this the 18th day of October 2011 ORDER The revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two courts below. Sentence imposed against the accused, as affirmed by the learned Sessions Judge in appeal, is simple imprisonment for three months with direction to pay compensation of `.50,000/- to the complainant with default term of simple imprisonment for a period of two months more. 2. The learned counsel for the petitioner submits that he has no arguments on merits to assail the conviction and sentence, but, only against the sentence imposing substantive term of imprisonment for a period of three months and also a request to be made for grant of three months time to pay the compensation fixed and awarded and, thus, avoid the default term of imprisonment. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find that no special circumstance has been made out justifying the imposition of a substantive term of imprisonment for the period fixed as part of the punishment for the offence under Section 138 of the NI Act with which the accused was convicted. Complainant is shown to be a registered Crl.R.P No.2417 OF 2011 - 2 - society and the prosecution related to the dishonour of five cheques, each for a sum of `.10,000/-, issued by the accused in relation to the business transaction which he had with that society. Probably on account of the financial difficulties faced by the petitioner/accused, he could not have discharged the liability arising under the cheques even after dishonour of the instruments and intimation thereof. For that reason alone, which no doubt he could not canvassed as a defence in a prosecution under Section 138 of the NI Act, it does not postulate that he is liable to suffer imprisonment for a term. Considering the nature of the offence and also the facts and circumstances presented in the case, I find, substantive term of imprisonment imposed against the petitioner can be reduced to imprisonment till the rising of the court, retaining the compensation awarded with the default term. 4. So far as the request made by the counsel for the petitioner seeking three months time to pay the compensation, It is seen, the cheques were issued, all five of them, in 2004 and when that be the case, prima facie, there is no merit in the request made for further grant of time. However, taking into account the submissions made by the counsel pointing out the extenuating circumstance available in favour of the accused to seek extension of time, I find, some more time as indicated hereunder can be granted for payment of the compensation. Crl.R.P No.2417 OF 2011 - 3 - 5. Affirming the conviction, sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court retaining the sum of compensation with the default term of imprisonment fixed and awarded. Accused is directed to appear before the Magistrate on 03-01-2012 to serve out the imprisonment, 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 sentence till the date fixed as above for his appearance. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge