IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.Rev.Pet.No. 1192 of 2011() ------------------------------ CRA.138/2010 of SESSIONS COURT, KASARAGOD STC.40/2009 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- AKBAR BEKAL HAMSA, AGED 26 YEARS, S/O.HAMZA KOTTA PALLA, RESIDING AT MOUVALPAIL, PALLIKKARA - II VILLAGE, HOSDURG TALUK, KASARAGOD DIST. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. NOUSHAD THIDIL IBRAHIM, AGED 60 YEARS, S/O.THIDIL IBRAHIM, JUNEETHA MANZIL, RESIDING AT THAIKADAPPURAM, P.O.THAIKADAPPURAM, HOSDURG TALUK, KASARAGOD DIST, REP. BY HIS POWER OF ATTORNEY HOLDER THIDIL IBRAHIM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------------------- Crl.R.P.No.1192 of 2011 --------------------------------------- Dated this the 13th day of June, 2011 ORDER The accused in a prosecution for the offence Under Section 138 of the NI Act is the revision petitioner. The challenge is against her conviction and sentence for the said offence. 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 this case, I am of the view that the said submission requires positive consideration. 3. The cheque in question is dated 30.06.2008 and that too for an amount of Rs.5,00,000/-. As per the findings of the courts below which approved by this Court, the said amount is due to the complainant and the same is with the revision Crl.R.P.No.1192 of 2011 2 petitioner for the last 3 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. In the light of the above facts and the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires modification and while granting some time to compensate the complainant, the interest of the complainant has also to be protected. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the NI Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced into one day simple imprisonment i.e., till the rising of the court. As the substantial sentence is reduced substantially, I am of the view that the direction to pay compensation can be set aside and the petitioner can be sentenced to pay fine. Thus the Crl.R.P.No.1192 of 2011 3 petitioner is sentenced to pay a fine of Rs.5,75,000/- within 3 months from today and in default he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 13.09.2011 to receive the modified sentence and to pay the fine amount. If there is any failure on the part of the revision petitioner in complying with the above direction, 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.5,70,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C and the remaining amount of Rs.5000/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 13th September, 2011. The Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE pm/