IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 Crl.Rev.Pet.No. 581 of 2011 -------------------------------------- [CRL.A.NO.910/2007 OF I ADDITIONAL SESSIONS COURT, TRIVANDRUM CC.NO.2/2006 OF J.F.M.C. IV. NEYYATTINKARA] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SUNIL, S/O. DAIVADANAM @ DEVADANAM, SUNIL BHAVAN, OLATHANNI, POOVANVILA, THIRUPURAM.P.O, NEYYATINKARA. BY ADV. SRI.R.T.PRADEEP RESPONDENT/RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHIJU S. KRISHNAN, S/O. KRISHNAN, BHARARTHI NIVAS, VILANGA MURI, KARINADA, NEYYATINKARA – 695 121. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.581 OF 2011 --------------------------------------------------- Dated this the 24th day of February, 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 mother of the revision petitioner passed away recently and therefore, some breathing time may be granted to the petitioner to pay the compensation amount fixed by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that 45 days time can be granted to the petitioner to pay the compensation amount. 3. The cheque in question is dated 01-01-2005, that too for an amount of Rs. 5,00,000/-. Thus as per the record and findings of the courts below, which upheld by this court, the said amount is with the revision petitioner for the last five years. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of Crl.R.P.NO.581 OF 2011 2 dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the facts indicated above and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration and at the very same time, the interest of the complainant has also to be protected. 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, while confirming the sentence of imprisonment is directed to pay the compensation and the amount, and the default sentence, as fixed by the appellate court, the revision petitioner is granted 45 days time to pay the compensation amount. It is made clear that the default sentence fixed by the appellate court will attract only in case of failure on the part of the revision petitioner in paying the compensation amount within 45 days time from today. Accordingly, the revision petitioner is directed to appear before the trial court on 8th April, 2011 to receive the modified sentence and to deposit the compensation amount. It is made clear that the revision petitioner is free to pay the compensation either directly to the complainant or by Crl.R.P.NO.581 OF 2011 3 remitting the same in the trial court whichever subject to the satisfaction of the learned Magistrate. If there is any failure on the part of the revision petitioner in appearing before the trial court to receive the sentence and to pay the compensation amount on the date of his appearance, the trial court is free to take coercive steps to secure his presence and to execute the sentence and for realization of compensation amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 8th April, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm