IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.Rev.Pet.No. 911 of 2011() ----------------------------- CRA.668/2009 of ADDLO. SESSIONS COURT (ADHOC-II), ERNAKULAM CC.64/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.B.ROBY,AGED 36 YEARS,S/O.BABY, NIRAPPEL HOUS,IRINGOL.P.O,PERUMBAVOOR. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENT(S): RESPONDENT NO.1 & STATE/COMPLAINANT -------------------------------------------------- 1. K.P.GEORGE,S/O.PAULOSE,KAKKATTUKUDY HOUSE,THRUTHY.P.O,PIN-683545. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT. REKHA.C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.911 OF 2011 ------------------------------------------------- Dated this the 30th 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, the same may be set aside and 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 02.06.2006, that too, for an amount of Rs.6,00,000/-. 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, in spite of the appellate court has disposed of the appeal on Crl.R.P.NO.911 OF 2011 2 31.12.2010. 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. Accordingly, while granting some time to pay the fine amount the interest of complainant is also to be protected since the amount is due for the last four years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment i.e, till the rising of the court. In view of the substantial modification with respect to the sentence of imprisonment, the direction to pay compensation is set aside and the petitioner is sentenced to pay fine also and he is directed to deposit a sum of Rs.7,20,000/- in the trial court within three months from today in default he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.06.2011 to receive the modified sentence of imprisonment and to pay the enhanced fine, Crl.R.P.NO.911 OF 2011 3 as ordered by this court. If there is any failure on the part of the revision petitioner in appearing before the courts below and depositing the fine amount, the trial court is free to take steps to execute the sentence and for realisation of fine amount. On realisation of the fine amount, a sum of Rs.7,15,000/- shall be paid to the complainant as compensation under Section 357(1) (b) Cr.P.C and the remaining of Rs.5,000/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 30th June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm