IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 Crl.Rev.Pet.No. 563 of 2011() ----------------------------------------- CRA.NO.72/2009 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (AD-HOC) FAST TRACK COURT-III, PATHANAMTHITTA ---------------------------- S.T.NO.824/07 OF JUDICIAL 1ST CLASS MAGISTRATE COURT-1, PATHANAMTHITTA --------------------------------------- REVISION PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------------- SHIBU, S/O. PATHROSE, SHIBU BHAVANAM, THEMPAUNMANNIL, GANDHI JUNCTION, KOODAL.P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S)/RESPONDENTS/ COMPLAINANT ------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.JOHN, S/O. VARGHESE, KUMPLOTTU PUTHEN VEEDU, GANDHI JUNCTION, KOODAL.P.O., PATHANAMTHITTA DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.563 OF 2011 ------------------------------------------------- Dated this the 3rd 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 for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is unreasonable and exorbitant and therefore a lenient view may be taken and the petitioner may be granted sufficient time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel requires positive consideration. 3. The cheque in question is dated 15.01.2007, that too, for an amount of Rs.60,000/-. As per the findings of the trial court as well as the appellate court which approved by this Court the said amount is due to the complainant for the last 3 years. The apex court, in its recent decision in Damodar S.Prabhu v. Crl.R.P.NO.563 OF 2011 2 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. Therefore, according to me, the sentence of imprisonment ordered by the courts below requires modification and when granting some time to pay the fine amount the interest of complainant is also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the amount is due for the last three years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. Accordingly, the sentence of imprisonment imposed by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e. till the rising of the court. While modifying the sentence of imprisonment as indicated above, the sentence to pay fine is also modified and the revision petitioner is directed to pay a fine of Rs.75,000/- within three months from today and in case of any default, the revision petitioner 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 03.06.2011 to Crl.R.P.NO.563 OF 2011 3 receive the modified sentence of imprisonment and fine as ordered by this court. If there is any failure on the part of the revision petitioner in complying with the above condition, the trial court is free to take steps to execute the sentence and for realisation of fine amount. On realisation of the fine amount a sum of Rs.72,500/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.2,500/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 3rd June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm