IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH MARCH 2011/ 4TH CHAITHRA 1933 Crl.Rev.Pet.No. 874 of 2011() ----------------------------- (CRA.111/2009 of ADDL. SESSIONS COURT ADHOC FAST TRACK- III, PATHANAMTHITTA . C.C.113/2009 OF THE JFCM-II, ADOOR) .................... REVN. PETITIONERS: APPELLANT/ACCUSED -------------------------------------- ASRAF RAWTHER, AGED 68, S/O.SAIDU BABA RAWTHER, R/AT PUTHEN VEEDU, (SHANAVAS MANZIL), NEAR KADAKKADU FISH MARKET, PANDALAM P.O., PIN 689501. BY ADV. SMT.T.S.MAYA (THIYADIL) SMT.PRINCY XAVIER RESPONDENTS: RESPONDENTS/COMPLAINANT -------------------------------------- 1. GEORGE DANIEL, AGED 68, S/O.DANIEL, R/AT PUNNAKKATTU HOUSE, POOZHIKKADU, KUDASSANADU P.O., PIN 689501. 2. KERALA STATE REPRESENTED BY THE GOVERNMENT PLEADER HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.874 of 2011 ---------------------------------------- Dated the 25th Day of March, 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 requires positive consideration. 3. It is relevant to note that the cheque in question crrp 874/11 2 is dated 1.112006, that too for a sum of Rs.5,10,600/- . The courts below concurrently found that the cheque in question was issued towards the discharge of a legally enforceable debt that due to the complainant. Though the appellate court disposed of the appeal on 20.12.2010, so far no amount is seen paid. It is also relevant to note that 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. Having regard to 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 modification but at the same time the interest of the complainant is also to be protected considering the fact that such a huge amount is due to the complainant for the last four years. crrp 874/11 3 4. In the result, the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below is confirmed. 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. In the light of the modification with respect to the substantial sentence, the direction to pay compensation is set aside and the petitioner is sentenced to pay a fine of Rs.6,10,814/- which shall be deposited within three months from today, in default, he is directed to undergo simple imprisonment for a period of 6 months, Accordingly, the revision petitioner is directed to appear before the trial court on 27 th June,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 crrp 874/11 4 coercive steps against 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.6,05,000/- (Rs.Fifty thousand only) shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.5814/- shall be deposited in the State ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 27 th June, 2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/- crrp 874/11 5