IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 Crl.Rev.Pet.No. 906 of 2011() ----------------------------- CRA.733/2006 of ADDL. SESSIONS COURT, VADAKARA ST.48/2006 of Judicial First Class Magistrate Court-II .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- D.SUNIL KUMAR,S/O.DIVAKARA PRABHU, KALATHIL MEETTHAL HOUSE,CHELANNUR.P.O, KOZHIKODE DISTRICT. BY ADV. SRI.P.M.HABEEB RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA,REP.BY P.PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. K.P.MOIDU HAJI,S/O.KUNHIMOOSA, 60 YEARS,BASARA HOUSE,MUTTUNGAL AMSOM, RAYAROTH DESOM,MUTTUNGAL(P.O),VATAKARA TALUK. PUBLIC PROSECUTOR SMT.REKHA. C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.906 OF 2011 ------------------------------------------------- Dated this the 1st day of April, 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 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 two cheques involved in this case are dated 20.03.2003 and 28.03.2003 respectively, for an amount of Rs.77,300/- and Rs.50,000/-. Though the courts below have concurrently found that the cheques in question are issued towards the discharge of the liability and though the appellate Crl.R.P.NO.906 OF 2011 2 court has disposed of the appeal on 10.08.2007, so far no amount is seen paid to the complainant and now the petitioners seeks further time. 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. Therefore, according to me, the sentence of imprisonment ordered by the courts below requires re-consideration and while granting some more time to pay the amount, the interest of the complainant is also to be protected especially in the light of the above decision. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act as recorded by the courts below. 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. Since the substantial sentence is reduced substantially, the direction to pay compensation is set aside and the revision petitioner is sentenced to pay a fine of Rs.1,75,500/- within three months from today and in default he is directed to undergo simple imprisonment for a Crl.R.P.NO.906 OF 2011 3 period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 01.07.2011 to receive the modified sentence of imprisonment and to pay the fine as ordered by this court on the above date. If there is any failure on the part of the revision petitioner in complying with any of the above condition, 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. 1,70,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.5,500/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 1st day of July, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm