IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 Crl.Rev.Pet.No. 891 of 2011() ----------------------------- CRA.258/2007 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.387/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONERS: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- BHANUMATHY RAMACHANDRAN, W/O.RAMACHANDRAN, PANCHAJANYAM, IMALI, OMALLUR P.O., PATHANAMTHITTA. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. M.K.JOHN, MUTTATHIL HOUSE, OMALLOOR P.O. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.T.SURESHKUMAR FOR R1 SRI.V.V.RAJA FOR R1 R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.891 of 2011 ---------------------------------------- Dated the 31st 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 submitted that the sentence imposed against the revision petitioner is unreasonable and exorbitant and the same may be set aside. It is also the submission of the learned counsel that the petitioner requires some time to compensate the complainant. Having regard to the facts and circumstances involved in the case, and considering the fact that the petitioner is a lady, who is a retired teacher, I am of the view that the sentence of imprisonment ordered CRRP 891/11 2 against the revision petitioner requires reconsideration. 3. In this juncture, it is relevant to note that the cheque in question is dated 7.11.2005, that too for a sum of Rs.75,000/-. The courts below have concurrently found that the cheque in question was issued towards the discharge of a legally enforceable debt that due to the complainant, but so far no amount is seen paid to the complainant. Now the petitioner seeks time for payment of the same. It is also relevant to note that 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, in view of the above settled legal position and considering the fact that the petitioner is a lady, the sentence of imprisonment can be set aside and the sentence can be confined to fine only. While granting CRRP 891/11 3 time to pay fine, according to me, fine amount can be fixed considering the fact that the amount is due to the complainant right from 2005, so as to protect the interest of the complainant also. 4. In the result, the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below is confirmed. Accordingly, the sentence of imprisonment ordered by the trial court and modified by the appellate court is set aside and the sentence is confined to fine only. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.93,750/-(Rs.Ninety three thousand seven hundred and fifty only) within three months form today and in default, she is sentenced to undergo simple imprisonment for two months. Accordingly the revision petitioner is directed to deposit the fine amount in the trial court on or before 31 st June, 2011. If there is any default on the part of the petitioner CRRP 891/11 4 in complying with the above direction, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the fine amount. On reaslisation of the fine amount, a sum of Rs.90,000/- (Rs.Ninety thousand only) shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.3750/- shall be deposited in the State ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 31st June, 2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/- CRRP 891/11 5