IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 Crl.Rev.Pet.No. 820 of 2011() ----------------------------- REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOY, S/O.CHANDRAKANTHAN, C.R.SADANAM, KOTTAKY PURAM, KLAPPANA, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): COMPLAINANT -------------------------- 1. SAJAN PETER, S/O.PATHROSE, THADATHIL HOUSE, MYLAPRA TOWN P.O., PATHANAMTHITTA DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.820 OF 2011 ------------------------------------------------- Dated this the 21st 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 05.09.2005, that too, for an amount of Rs.1,95,000/-. Though the courts below have concurrently found that the said amount is due to the complainant, so far no amount is seen paid to the complainant. Thus, as per the record and findings of the courts below, which upheld by this Court, the said amount is with the revision Crl.R.P.NO.820 OF 2011 2 petitioner for the last 5 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 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. 4. 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. In addition to that while confirming the sentence of fine imposed against the revision petitioner, the fine amount is enhanced to the tune of Rs.2,43,750/- and he is further directed to deposit the above fine amount within three months from today and in default he is directed to undergo simple imprisonment for a period of 6 months. On realisation of the fine amount a sum of Rs.2,40,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C and the remaining of Rs.3,750/- shall be deposited in the State Exchequer. Crl.R.P.NO.820 OF 2011 3 5. The learned counsel for the revision petitioner submitted that the revision petitioner has already been arrested and he is in custody from 18.03.2011 onwards and therefore, he may be granted time to pay the fine amount after releasing him on bail. If that be so, and if the petitioner is under custody there will be a direction to the trial court to release the petitioner on bail on executing a bond for Rs.25,000/-(Rupees Twenty Five thousand only) with two solvent sureties each for the like amount to the satisfaction of the learned magistrate and on further condition, the petitioner deposits a sum of Rs.1,00,000/- within one month from the date of his release on bail. The petitioner is directed to deposit the remaining amount of the total fine amount fixed by this Court within three months from today. If there is any failure on the part of the revision petitioner in depositing the fine amount as indicated above, the trial court is free to take steps to execute the sentence as fixed by this Court. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm