IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 52 of 2003() ---------------------------- CC.1069/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): COMPLAINANT: --------------------------------- BASHEER, S/O. MOIDEEN. V. MUHAMMED, VADAKKEKATHU VEEDU, KAVUMKARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA. (MASNAGING PARTNER, KEERTHI AUTO FINANCE, MUVATTUPUZHA.) BY ADV. SRI.V.PHILIP MATHEW RESPONDENT: ACCUSED: ----------------------- K.V. RAMESH, KANDATHIPARAMBIL HOUSE, KALAMUKKU, AAZHEEKKAL P.O., VYPIN, KOCHI. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.K.P.MAJEED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON 25/11/2010 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 52 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2010 O R D E R This revision petition is filed by the complainant in C.C.No. 1069 of 1997 on the file of the J.F.C.M. Court -I, Muvattupuzha. That was a case filed by the complainant against the respondent herein alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.96,700/- In the Trial Court, the accused was convicted under Section 138 of the N.I. Act and he was sentenced to undergo S.I. for one month and to pay a fine of Rs.5,000/- and out of that fine amount Rs.3,000/- shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. This revision petition is filed by the complainant for enhancement of the sentence. Crl.R.P.No. 52 of 2003 2 2. Heard the learned counsel for the revision petitioner. 3. The revision petitioner is not challenging the conviction of the accused under Section 138 of the N.I. Act. The learned Magistrate, on considering the evidence on record, held that the cheque in question was drawn by the accused in favour of the complainant and when that cheque was presented for encashment it was dishonoured due to insufficiency of funds in the account of accused and the complainant has validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the accused failed to make the payment within 15 days of receipt of the statutory notice. The learned Magistrate considered and rejected the defence set up by the accused while entering the conviction. The said conviction has been recorded after careful evaluation of the oral and documentary evidence. Therefore, the Crl.R.P.No. 52 of 2003 3 conviction of the accused under Section 138 of the N.I. Act has to be confirmed. 5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.97,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within three months from today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three Crl.R.P.No. 52 of 2003 4 months by way of default sentence. The amount, if any, deposited in the trial court by the accused can be given credit to. 6. This revision petition is allowed modifying the sentence. (M.L. JOSEPH FRANCIS) Judge tm