IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 19TH DAY OF DECEMBER 2011/28THAGRAHAYANA 1933 CRRP.No. 2941 of 2011 © ---------------------------------- (AGAINST THE JUDGMENT DTD: 30.10.2010 IN CRA.244/2008 OF THE SESSIONS JUDGE, WAYANAD, KALPETTA IN S.T.NO.1035/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, SULTHAN BATHERY) ....................................... REVISION PETITIONER(S)/APPELLANT/ACCUSED : K.P.PRATHEESHAN, S/O.KUMARAN, AGED 45 YEARS, KALLERIPOYIL HOUSE, MUTTIL POST, VYTHIRI TALUK. BY ADV.SMT.CELINE JOSEPH RESPONDENT/COMPLAINANT(S) & STATE : 1. K.P.THAMPI, S/O.KUTTAPPAN, AVAYATHUMKUDI HOUSE, VEETTIMOOLA, P.O.POOTHANAM KOLONY, PULPALLY – 673 579. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. R2 BY BY SRI.T.R.RAJESH, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2941 OF 2011 ----------------------------------------- Dated this the 19th day of December 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently by the two courts below. Sentence imposed against the accused, as modified by the sessions judge in appeal, is simple imprisonment for three months with direction to pay compensation of `.1,40,000/- to the complainant with default term of simple imprisonment for three months more. 2. When the revision came up for consideration today, the learned counsel for the petitioner/accused submitted that she has no challenge against the conviction, but, only against the sentence awarding substantive term of imprisonment with a request to be made for grant of some more time to pay the compensation and, thus, avoid the default term of imprisonment. The liability arising under the cheque is primarily a civil liability. That being so, in the absence of exceptional circumstances, incarceration of the drawer of the cheque, on his conviction, for the offence under Section 138 of the NI Act is not warranted to meet the ends of justice. Crl.R.P No.2941 OF 2011 2 3. Going through the judgments rendered by the learned magistrate and also the sessions judge, I find that no exceptional circumstance has been made out in the case justifying the imposition of a harsh punishment directing imprisonment of the petitioner/accused for the term fixed. Sentence imposed against the accused directing his incarceration for a period of three months, can be reduced and modified as indicated hereunder. 4. So far as the request made for further time, prima facie there appears to be no merit as it is seen the cheque involved in the case was drawn and issued in 2006. However, having regard to the submissions made by the counsel pointing out the extenuating circumstances available in favour of the accused to seek for such extension, I find, a short period can be provided for payment, to avoid his incarceration. 5. Affirming the conviction of the accused, sentence of imprisonment imposed against him is reduced and modified to imprisonment till the rising of the court retaining the compensation fixed with the default term of imprisonment. Petitioner shall appear before the magistrate on 14-03-2012 to serve out the imprisonment till the rising of the court, and to report payment of compensation. Crl.R.P No.2941 OF 2011 3 Magistrate is directed to keep in abeyance the execution of 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 nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge