IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.Rev.Pet.No. 513 of 2011() ----------------------------- CRA.139/2009 of SESSIONS COURT, KASARAGOD CC.75/2007 of the Judicial First Class Magistrate-II(Additional Munsiff), Kasargod. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- HAMEED, AGED 31 YEARS, S/O.LATE MOOSA HAJI, PRATHAPA NAGAR, MANGALAPADY POST, MANGALAPADY VILLAGE, HOSDURG TALUK. BY ADV. SRI.M.SASINDRAN SRI.BIJU GEORGE (ERNAKULAM) RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE ----------------------------------------------- 1. I.SADASHIVA ALVA, S/O.LATE I.MADANA ALVA, AYYARKATTE, MANJESWHAR, MANJESWHAR P.O. - 671 121, KASARAGOD TALUK & DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.513 OF 2011 ------------------------------------------------- Dated this the 14th 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 01.12.2005, that too, for an amount of Rs.1,20,000/-. 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 Crl.R.P.NO.513 OF 2011 2 upheld by this Court, the said amount is with the revision 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. In the result, this revision petition is disposed of confirming the conviction recorded by the courts below. Accordingly, in modification of the sentence of imprisonment ordered by the courts below, the same is reduced into one day simple imprisonment, i.e, till the rising of the court. The direction to pay compensation is set aside. Besides the sentence of imprisonment the revision petitioner is also sentenced to pay fine of Rs.1,30,000/- within three months from today and in default, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 14th June, 2011 to receive the modified sentence of imprisonment and to pay the Crl.R.P.NO.513 OF 2011 3 fine amount. If there is any failure on the part of the revision petitioner in complying with the above condition, the trial court is free to take steps to execute the sentence and for realisation of fine amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 14.06.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm