IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 Crl.Rev.Pet.No. 937 of 2011() ----------------------------- CRA.147/2009 of SESSIONS COURT, KALPETTA ST.184/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHANBATHERY .................... REVN. PETITIONER: -------------------------- SUDARSAN,S/O.NARAYNAN AGED 35 YEARS, KONNACKAL HOUSE, CHOOTHUPARA P.O., PURAKKADI VILLAGE, SULTHANBATHERY TALUK. BY ADV. SRI.ANEESH JOSEPH RESPONDENTS: ------------------- 1. M/S.DHANASHILPI CHITS PVT.LTD, MANAGING DIRECTOR, SRI.P.M.VENUNATHAN,S/O.MADHAVAN BY POWER OF ATTORNEY HOLDER SRI.N.MADHAVAN, S/O.NARAYANAN, SULTHANBATHERY P.O., SULTHANBATHERY VILLAGE AND TALUK. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. KOCHI-31. R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.937 of 2011 ---------------------------------------- Dated the 31st 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 and the same may be set aside. It is also the submission of the learned counsel that the petitioner may be granted breathing time to compensate the complainant. Having regard to the facts and circumstances involved in the case, the said submission can be considered positively. 3. In this juncture, it is relevant to note that the CRRP 937/11 2 cheque in question is dated 26.11.2006 that too for a sum of Rs.72,025/-. In spite of the judgments of the courts below, so far no amount is seen paid. 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. In the light of the above decision of the Apex Court, the sentence of imprisonment ordered against the revision petitioner requires modification. Having regard to the facts indicated above, I am of the view that while granting time to pay the amount, the interest of the complainant is also to be protected, particularly when the amount is due for the last 4 years. 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 CRRP 937/11 3 imprisonment, i.e., till the rising o the court. ordered by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment. As the substantial sentence is reduced substantially, the direction to pay compensation is set aside and the revision petitioner is also sentenced to pay a fine of Rs.86,429/- (Rs.Eighty six thousand four hundred and twenty nine only) within three months from today, and in default, he is directed to undergo simple imprisonment for three months. Accordingly the revision petitioner is directed to appear before the trial court on 31 st June, 2011 to receive the modified sentence of imprisonment and to deposit the fine amount on that day. If there is any default on the part of the petitioner in complying with the above direction, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. On CRRP 937/11 4 reaslisation of the fine amount, a sum of Rs.83,000/- (Rs.Eighty three thousand only) shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.3429/- shall be deposited in the State ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 31st June, 2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/-