IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 Crl.Rev.Pet.No. 730 of 2011() ----------------------------- CRA.292/2008 of I ADDL. SESSIONS COURT, KOLLAM ST.59/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT IV, KOLLAM. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------------------- A.ASHARAF, S/O.ABDUL RAHAMAN, ANCHALAMOODU JUNCTION, PERINAD P.O., KOLLAM, NOW AT KANNACHAMVILA VEEDU, NEERAYIL CHERRY, PERINAD P.O., THRIKKADAVOOR, KOLLAM. BY ADVS. SRI.ARUN.B.VARGHESE, SRI.JAYKAR K.S. RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. K.V.SHAJI, KADAPPAYIL, PERINAD P.O., KOLLAM-673 307. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SMT. ANEY PAUL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 730 of 2011 --------------------------------------------- Dated this the 10th day of March, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the fine amount as ordered by the appellate court. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively and while granting time, the interest of the complainant has also to be protected. The Honourable Apex Court in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] Crl.R.PNO.730 of 2011 :-2-: has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. 3. In this juncture, it is relevant to note that the cheque in question is dated 18.10.2002, that too for an amount of `.50,000/-. As per the findings of the trial court as well as the appellate court, the said amount is due to the complainant. The appellate court judgment is dated 17.2.2011 whereas the trial court judgment is dated 2.5.2008. But, so far no amount is seen paid. Therefore, according to me, while granting some time to the revision petitioner to pay the fine, the fine amount can be enhanced slightly, considering the fact that the cheque in question is dated 18.10.2002 and the interest of the complainant has also to be protected. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of Crl.R.PNO.730 of 2011 :-3-: imprisonment as modified and fixed by the appellate court, the sentence of fine ordered by the appellate court is modified and accordingly, the revision petitioner is sentenced to pay fine of `.72,500/- (Rupees Seventy Two Thousand Five Hundred only) which shall be deposited within three months from today and in default, he is directed to undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on 10th June, 2011 to receive the modified sentence ordered by the appellate court and to deposit the above enhanced fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the modified sentence fixed by the appellate court and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the fine. On realisation of the fine amount, a sum of `.70,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and Crl.R.PNO.730 of 2011 :-4-: the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 10th June,2011. V.K.MOHANAN, Judge. MBS/