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. 4511 of 2006() ------------------------------ CRA.710/2002 of ADDL.DISTRICT & SESSIONS JUDGE (ADHOC-III), N.ARAVUR ST.2957/1999 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------------------------- KOUSALYA, AGED 51, W/O.LATE RAJU, KOYIPPILLY HOUSE, MUNABHAM MURI, KUZHUPPILLY VILLAGE, KOCHI TALUK, ERNAKULAM. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.N.SURESH RESPONDENTS/ COMPLAINANT & FORMAL PARTY: ------------------------------------------ 1. K.D.SANTHOSH, S/O.DAMODARAN, KULANGARA VEEDU, MUNABHAM MURI, KUZHUPPILLY VILLAGE, KOCHI TALUK, ERNAKULAM, 2. STATE OF KERALA TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.T.R.RAJESH ADV. SRI.T.R.ASWAS SRI.ANIL KUMAR SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P.No. 4511 of 2006 --------------------------------------------- Dated this the 18th day of October, 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, (for short the N.I.Act), concurrently by the two courts below. Sentence imposed against the accused, as modified and fixed by the learned Sessions Judge in appeal, is simple imprisonment for two months with direction to pay compensation of Rs.2,36,000/- to the complainant with default term of simple imprisonment for three months more. 2. Notice given the first respondent/complainant has entered appearance. I heard the counsel on both sides. 3. The learned counsel for the revision petitioner/accused submitted that he has no arguments on merits to assail the conviction, but only against the sentence imposed directing incarceration of the revision petitioner/accused for a term for two months, apart from the default term of imprisonment in the event of nonpayment of compensation. Sentence imposing substantive term of imprisonment may be modified and reduced, is the submission of the counsel, stating that the revision Crl.R.P.No. 4511 of 2006 2 petitioner is a lady and the prosecution over the dishonour of cheque related to a liability from a transaction between the complainant and her deceased husband. 4. Going through the judgments rendered by the learned magistrate and also the learned Sessions Judge, it is seen, compensation fixed by the magistrate was enhanced to the sum as stated above, pursuant to a challenge raised by way of a revision by the complainant against the sentence imposed as regards the inadequacy of the compensation fixed. As there is no challenge against the conviction and also the propriety and correctness of enhanced compensation awarded by the learned Sessions Judge, scrutiny thereof is not called for in this revision. 5. So far as the request made by the counsel for the revision petitioner/accused for modification of the sentence awarding substantive term of imprisonment as part of the punishment for the offence under Section 138 of the N.I.Act, after going through the judgments rendered by the two courts below, I am satisfied that no exceptional circumstance has been made out in the case to justify such harsh and severe punishment against the accused. So far as the sentence to be awarded against the drawer of the instrument on its dishonour, Crl.R.P.No. 4511 of 2006 3 for the offence under Section 138 of the N.I.Act the outlook of the court must be to compensate the complainant and not to be punitive. Sentencing the offender found guilty under Section 138 of the N.I.Act for a term in prison will be justified, if exceptional circumstances are involved in the case justifying such harsh and severe punishment. It may not be open for the drawer of the instrument to raise a plea as a defence that as and when the cheque was issued it was not in his contemplation that it would be dishonored on its presentation. Such defence could not be taken by him is not a ground interdicting the court from considering the reality that drawing of the instrument and its issue might have been without any foreboding as to its dishonour on presentation. The petitioner who is a lady issued the cheque in relation to a transaction which her deceased husband had with the complainant is the submission of the counsel. Taking into account the circumstance that the petitioner is a lady, and her husband is no more, I find, the substantive term of imprisonment imposed as part of the sentence can be reduced and modified to imprisonment till rising of the court, retaining the compensation with the default term. Crl.R.P.No. 4511 of 2006 4 6. Affirming the conviction, sentence imposed against the revision petitioner/accused is modified and reduced to imprisonment till rising of the court with direction to pay compensation of Rs.2,36,000/- with default term of simple imprisonment for three months. If any amount has been paid on the compensation by the petitioner/accused, by deposit before court below, it shall be given credit to in the compensation awarded. Petitioner is directed to appear before the learned magistrate on 18.1.2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. magistrate is directed to keep in abeyance the execution of the sentence against her till the date fixed as above for her appearance. In default of her appearance and non payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc //True Copy// PA to Judge