IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 Crl.Rev.Pet.No. 177 of 2011() ---------------------------------- CRA.63/2008 of SESSIONS COURT, THIRUVANANTHAPURAM ST.998/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT -IX, THIRUVANANTHAPURAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------- O.GIRIJA KUMARI, D/O.OMANAMMA, MELVILAYIL VEEDU, INDIRA NAGAR, PERORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): RESPONDENTS/ STATE & COMPLAINANT: --------------------------------------------------------------------- 1. V.SUKU, GRACE VILLA, POWDIKONAM P.O., THIRUVANANTHAPURAM - 695 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P. No.177 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24 th day of January, 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 her conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. I have heard learned counsel for the revision petitioner as well as counsel for the respondents. 3. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is highly arbitrary and exorbitant and therefore, some leniency may be shown in the matter of sentence. Considering the facts and Crl. R.P. No.177/2011 2 circumstances involved in the case, I am of the view that the said submission requires positive consideration. The Hon'ble Apex Court in the decision reported in Damodar S.Prabhu v. Sayed Babalal .H. (JT 2010 (4) SC 457) has held that, in case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the light of the above decision and considering the fact that, the cheque in question is dated 02.04.2005, for an amount of `.70,000/- and as per the findings of the court below, the said amount is due to the complainant for the last five years and the petitioner is a lady, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be set aside and the sentence can be confined to fine only. At the very same time it is to be noted that, though the cheque is pertained to the year 2005, there is no payment, and hence the interest of the complainant has also to be Crl. R.P. No.177/2011 3 protected and therefore, the fine amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the court below is set aside and the revision petitioner is sentenced to pay fine only and accordingly, she is sentenced to pay a fine of `.87,500/-(Rupees Eighty seven thousand five hundred only) within three months from today. In case of any default in paying the fine amount within the above time, the revision petitioner is directed to undergo simple imprisonment for four (4) months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 25.04.2011, if there is any default on the part of the revision petitioner in depositing the above enhanced fine amount within the above period, the trial Crl. R.P. No.177/2011 4 court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and for realisation of the fine amount. On realization of the fine amount, sum of `.85,000/- (Rupees Eighty five thousand only) shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. The coercive steps, if any, pending against the revision petitioner shall be deferred till 25.04.2011. Sd/- (V.K.MOHANAN), Judge. ss/. //True Copy// P.A to Judge