IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 Crl.Rev.Pet.No. 1341 of 2011() ------------------------------ CRA.552/2008 of II ADDL.SESSIONS COURT, KOLLAM ST.220/2007 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... REVN. PETITIONER: ----------------------------- MUJEEB REHMAN S/O. ABDUL REHMAN KOYA RESIDING AT LATHEEFA MANZIL, MUNDAKKAL VILLAGE UDAYA MARTHANDAPURAM CHERRY, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. GABRIEL RAJ, S/O. AROGYA SWAMI, ASHA NIVAS, HOUSE NO.26. MUSALIR NAGAR KANNIMEL CHERRY, MANGADU,KOLLAM. R1 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------------------- Crl.R.P. No.1341 of 2011 ----------------------------------------------- Dated the 15th Day of June, 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 submitted that a breathing time may be granted to the the revision petitioner to compensate the the complainant. 3. While considering the above request of the learned counsel, it is relevant to note that the cheque in question is dated 18.2.2006, that too for a sum of Rs.1,36,000/- and that the courts below have concurrently found that the said amount is due to the complainant. Thus it can be seen that the above 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 CRRP 1341/2011 -2- punitive aspect. Having regard to the facts indicated above and the settled legal position, I am of the view that while granting time to the petitioner to pay the fine amount, interest of the complainant has also to be protected. 4. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below and the sentence of imprisonment ordered against the petitioner by the trial court and modified by the appellate court is confirmed. While granting further time, I am of the view that, the fine amount fixed by the courts below can be enhanced considering the fact that the amount is due for the last 5 years. Accordingly, in modification of the sentence of fine, the revision petitioner is sentenced to pay a fine of Rs.1,70,000/-. within three months from today, in default, the petitioner 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 15th September, 2011 to receive the modified sentence of imprisonment as ordered by the appellate court and to pay the modified fine amount fixed by this court. If there is any default CRRP 1341/2011 -3- on the part of the petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, a sum of 1,65,000/- shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.5,000/- shall be deposited in the State ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 15th September, 2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-