IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 Crl.Rev.Pet.No. 542 of 2011 --------------------------------------- CRA.28/2010 of V ADDL.SESSIONS COURT, ERNAKULAM CC.2411/2008 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S):APPELLANT/ACCUSED ------------------------------------------------------------------ P.D.PRAVEEN, S/O.DAMODARA PRABHU, AGED 35 YEARS, RESIDENT OF PRABHU NIVAS, PUTHENTHODU, ANDIKADAVU PO, KOCHI-8. BY ADV. SRI.K.V.SABU RESPONDENT(S):RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KANDAKADAVU UNIT,KANDAKADAVU PO, KOCHI -8, REP BY ITS PRESIDENT SALIM MARSHAL,S/O.MARSHAL, RESIDENT OF ARAKKAL HOUSE,KANDAKADAVU,KOCHI-8. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REKHA C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 542 of 2011 --------------------------------------------- Dated this the 23rd day of February, 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 the sentence ordered by the court below to the revision petitioner is highly arbitrary and exorbitant. It is further submitted that some breathing time may be granted to the revision petitioner to pay the fine. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission requires consideration. Crl.R.P.No.542 of 2011 :-2-: 3. In this juncture, it is relevant to note that firstly, the accused issued a post dated cheque of 21.4.2008 for an amount of Rs.46,720/- and thereafter, he issued a letter requesting the complainant to postpone presentation of the cheque and thereafter, the cheque is presented in June 2008. Since it was dishonoured, thereafter, the complainant presented the cheque again on 29.7.2008 which was also dishonoured. Thus, it can be seen that so far, no amount is paid to the complainant. Having regard to the facts and circumstances involved in the case and in the light of the decision of the Apex Court reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] wherein it was held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires modification and while granting some time to pay the fine, the fine amount can be enhanced slightly so as to serve the interest of the complainant also Crl.R.P.No.542 of 2011 :-3-: especially in the light of the above decision of the Apex Court. 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 trial court which is confirmed by the appellate court. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is modified and reduced to one day simple imprisonment i.e., till the rising of the court whereas the sentence to pay fine is confirmed and the fine amount is enhanced to the tune of Rs.50,000/- (Rupees Fifty Thousand only) which shall be deposited within three months from today and the revision petitioner is directed to undergo simple imprisonment for a period of three months in case of default in paying the fine amount within the stipulated time. Accordingly, the revision petitioner is directed to appear before the trial court on 23rd May,2011 to receive the modified sentence and to pay Crl.R.P.No.542 of 2011 :-4-: the fine amount fixed by this Court. If there is any failure on the part of the revision petitioner to receive the sentence and to pay 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. On realisation of the fine amount, a sum of Rs.49,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 23rd May,2011. V.K.MOHANAN, Judge. MBS/ Crl.R.P.No.542 of 2011 :-5-: 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 revision petitioner to pay the compensation amount. In the light of the facts and circumstances of the case, I am of the view that the said submission requires positive consideration. The cheque in question is dated 2.4.2004 that too for an amount of Rs.43,000/-. The trial court though sentenced the revision petitioner to undergo six months simple imprisonment, the appellate court reduced the same to one day simple imprisonment. Having regard to the above facts and Crl.R.P.No.542 of 2011 :-6-: circumstances and in the light of the decision reported ........., I am of the view that while granting some time, the compensation amount can be enhanced. 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 imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of RS.60,500/- to the complainant as compensation under Section 357(3) of the CrP.C. within three months from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to