IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Crl.Rev.Pet.No. 2601 of 2011() ------------------------------ CRA.10/2008 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.26/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- UDAYAKUMAR, S/O.SREEDHARAN, AGED 42 YEARS, PEON, COLLEGE OF PHARMACY, MEDICAL COLLEGE CAMPUS, KOZHIKODE DISTRICT. BY ADV. SMT.P.N.SANTHAKUMARI SRI.E.G.GORDEN RESPONDENT(S): APPELLANTS/COMPLAINANT ------------------------------------- 1. ABDUL SALEEM, S/O.MAMMU, AGED 43 YEARS, THAZHE CHATHOTH HOUSE, NAMANDA P.O., KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. ADV. SMT.R.REKHA FOR R1 PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN,J. --------------------------------------- Crl.R.P. No. 2601 OF 2011 ---------------------------------------- Dated this the 4th day of November, 2011 ORDER Revision is by the accused. He has been convicted of the offence under Section 138 of Negotiable Instrument 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 two months and payment of compensation of Rs.60,000/- (rupees sixty thousand only) to the complainant with default term of simple imprisonment for one month more. Feeling aggrieved the accused has preferred this revision. 2. Revision was filed with a petition to condone delay on which notice was ordered to the complainant. Complainant entered appearance through counsel, and after hearing both sides delay was condoned. 3. When the revision came up for consideration today, Crl.R.P. No. 2601 of 2011 -2- the learned counsel for the petitioner/accused submitted that he has no argument on merits to assail the conviction, but only against the sentence imposing substantial term of imprisonment, for its modification, with a request for some more time to pay the compensation fixed and thus avoid the default term of imprisonment. 4. Having regard to the submissions made by the counsel for the accused as aforesaid I find no further notice in the revision to the complainant is warranted, and it is dispensed with. 5. So far as the offence under Section 138 of the Act arising from the dishonour of cheque issued by the drawer towards discharge of a debt or liability the liability covered by the instrument is essentially a civil liability. To provide more sanctity to commercial transaction by use of cheque the dishonour of that instrument subject to the essential conditions laid down for prosecution of the trial, by way of Crl.R.P. No. 2601 of 2011 -3- amendment, the penal provision as under Section 138 has been incorporated in the N.I. Act. No doubt when a prosecution for such offence is launched, the drawer of the dishonoured instrument cannot take up a defence that its dishonour was for any reason which was not under his contemplation when the instrument was executed and handed over. The offender, drawer of the instrument, could not take such a defence is no bar for the court in taking due note of the stark reality that when transactions are entered into with cheques, very often, it is done without any intention to defraud the person to whom such instrument is handed over. When that be so, in the absence of exceptional circumstance made out in the case showing the culpable fraudulent act of the drawer of the instrument in causing the dishonour of the instrument handed over by him, on his prosecution and conviction for the offence under Section 138 of the Act. Substantial term Crl.R.P. No. 2601 of 2011 -4- of imprisonment for a period as part of the sentence against him is not called for. So much so, I find the sentence of imprisonment for a term fixed by the courts below could be reduced to imprisonment till the rising of court retaining the compensation fixed with default term of imprisonment. 6. So far as the request made by the counsel for the accused for further time for payment of the compensation it is seen the cheque involved in the case is dated 08/12/2006 and the sum covered by that instrument, Rs.60,000/-(Rupees Sixty thousand only). No part of the amount covered by that instrument has been paid to the complainant till date. When that be so, there is no merit in the request for further time for payment of compensation. However, taking into account the submissions made by the counsel for the accused seeking indulgence of this Court for providing further time to the accused, who is stated to Crl.R.P. No. 2601 of 2011 -5- be facing severe financial difficulty, I find a short period as indicated hereunder can be granted for payment of compensation. 7. Affirming the conviction, sentence imposed against the petitioner/accused is modified and reduced to imprisonment till the rising of court with direction to pay the compensation of Rs.60,000/-(rupees sixty thousand only) with default term of simple imprisonment of one month. Petitioner is directed to appear before the Magistrate on 12.12.2011 to serve out the imprisonment till rising of Court and to report the payment of compensation. The Magistrate is directed to keep in abeyance the execution of sentence against the accused 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 compensation the Magistrate shall execute the sentence taking appropriate Crl.R.P. No. 2601 of 2011 -6- steps in accordance with law. The revision is disposed of. Sd/- S.S.SATHEESACHANDRAN JUDGE. Kp/-