IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 CRRP.No. 953 of 2011 ( ) -------------------------- CRA.644/2009 OF III ADDL. SESSIONS COURT, KOZHIKODE ST.NO.555/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY ------------------------- REVISION PETITIONER / APPELLANT / ACCUSED : ------------------------------------------------------------------------- MOINKUTTY, S/O. AHAMMED KOYA, THOTTUNKARA HOUSE, KODUVALLY, KOZHIKODE DISTRICT. BY ADV.SRI.O.D.SIVADAS RESPONDENTS / RESPONDENTS /COMPLAINANT & STATE : -------------------------------------------------------------------------------------- 1. VIMAL CHAND, S/O. MAHAVIR CHAND, PROPRIETOR, M/S. KANKALIYA FINANCE LTD. VEERAPPAN STREET, CHELLANI PLAZA SOWEARPET, CHENNAI-600079 AGENTS OFFICE AT AMRUTHA AUTO CONSULTANCY CHUNGAM, THAMARASSERY, KOZHIKODE-673 001. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. R1 BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA R2 PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.953 of 2011 ----------------------------------------------- Dated this the 20th day of December, 2011 O R D E R Challenge in the revision is against the conviction of the accused, who has been prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’}, concurrently by the two courts below. Sentence imposed against the accused as affirmed by the Sessions Judge in appeal is simple imprisonment for three months, with direction to pay compensation to the complainant of Rs.2,00,000/-, with default term of simple imprisonment for three months more. 2. Notice in the revision given, the 1st respondent/complainant has entered appearance. 3. On the submissions made by the learned counsel for the petitioner that there is Crl.R.P.No.953 of 2011 :: 2 :: a fair chance of settlement, hearing of the revision has been adjourned from time to time. The revision coming up for consideration today, learned counsel for the petitioner/accused submitted that a substantial portion of the amount awarded as compensation has already been paid and what remains is only a meagre sum covered by the dishonoured cheque. Learned counsel for the 1st respondent/complainant submits that she cannot vouchsafe what is the actual amount that is outstanding after part payments were made. This court in exercise of revisional jurisdiction will be slow to go into questions relating to part payments made and whatever disputes between the parties, if so found necessary, could be raised before the magistrate. Learned counsel for the petitioner submitting that he is not assailing the Crl.R.P.No.953 of 2011 :: 3 :: conviction urged for modification of the substantive term of imprisonment so that the parties may record the settlement effected before the magistrate. 4. Going through the judgments rendered by the learned magistrate and also the learned Sessions Judge, I find no exceptional circumstances have been made out in the case to impose a harsh punishment against the accused to award a substantive term of imprisonment for three months as part of the sentence awarded. Liability arising under the cheque being a civil liability, in the absence of exceptional circumstance, the outlook of the court in awarding punishment against an offender found guilty of the offence under Section 138 of the Act should be more to compensate the complainant than be punitive. In that view of Crl.R.P.No.953 of 2011 :: 4 :: the matter, I find, the substantive term of imprisonment imposed against the accused can be modified and reduced to imprisonment till the rising of the court, retaining the compensation as fixed. Amount, if any, paid and settlement if any arrived between the parties, no doubt, can be canvassed before the magistrate. 5. Affirming the conviction, the sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court, retaining the compensation fixed with the default term of imprisonment. Petitioner/accused shall appear before the magistrate on 27.01.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. Amount, if any, deposited by the petitioner shall be given credit to in the compensation fixed. The Crl.R.P.No.953 of 2011 :: 5 :: magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.