IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Crl.Rev.Pet.No. 2517 of 2011() ------------------------------ CRA.361/2010 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.684/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- MUHAMMED MUSTHAFA, AGED 45 YEARS, S/O.CHEKKU, KARIMPANAKKAL HOUSE, BEHIND K.M.S. TEXTILES, ALANALLUR P.O., PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------------- 1. AMINA P.K., D/O.POCKER, AGED 37 YEARS, PANNIYANKUZHI HOUSE, KOODATHIL BAZAR (PO), KOZHIKODE-673 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2517 OF 2011 ----------------------------------------- Dated this the 21st day of October 2011 ORDER The revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two courts below. Sentence imposed against the accused, as affirmed by the learned Sessions Judge in appeal, is simple imprisonment for three months with direction to pay compensation of `.75,000/-, the cheque amount, to the complainant, with default term of simple imprisonment for one month. 2. When the revision came up for consideration, the learned counsel for the petitioner/accused submits that he has no arguments on merits to assail the conviction, but, only as against the sentence with a request to be made for grant of some more time for payment of the compensation awarded and, thus, avoid the default term of imprisonment. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find that no exceptional circumstance has been made out for imposition of a substantive term of imprisonment, as awarded to the accused, the offender, found guilty under Section 138 of the NI Act. True, it is not open for the drawer of a cheque to take a defence that the dishonour Crl. R.P No.2517 OF 2011 - 2 - of the cheque arose for reasons beyond his contemplation at the time of issue of the instrument. Still, in considering and awarding the sentence, where he is found guilty of the offence, a court cannot be oblivious of the fact that the reason for dishonour of the cheque, sometimes, could be for reasons beyond his contemplation at the time of issue of the instrument. That being so, I find, in awarding sentence as against an offender under Section 138 of the NI Act, the nature and approach of the court should be more compensating the complainant than to be punitive. That being so, I find, the sentence of substantive term of imprisonment imposed against the petitioner can be reduced to imprisonment till the rising of the court. 3. So far as the request made by the counsel for grant of further time to pay the compensation, it is noted that the cheque, which on dishonour gave rise to the prosecution and ultimately the conviction of the accused, is dated 30-03-2008, and the sum covered by that instrument is `.75,000/-. The learned counsel for the petitioner submits that a part of the cheque amount, ie, `.75,000/- had been deposited pursuant to orders passed by the appellate court as a condition precedent for suspension of the sentence when the appeal was entertained. Taking note of the submissions made by the counsel as above and also the circumstances projected in favour of the accused to seek extension of time, I find, a short period, as Crl. R.P No.2517 OF 2011 - 3 - indicated hereunder, can be granted for payment of the compensation. 4. Affirming the conviction, sentence imposed against the revision petitioner/accused is modified and reduced to imprisonment till the rising of the court with direction to pay compensation of `.75,000/- to the complainant with default term of simple imprisonment for one month. The revision petitioner/accused is directed to appear before the Magistrate on 02-01-2012 to serve out the imprisonment till the rising of the court, and to report payment of the compensation. Any amount paid by him by way of deposit during the pendency of the appeal, shall be given credit to in the compensation awarded. The learned Magistrate is directed to keep in abeyance the execution of sentence against the accused till the date fixed as above for his appearance, to enable him to pay the amount within such period. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge