IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.Rev.Pet.No. 762 of 2011() ----------------------------- CRA.148/2010 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.773/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- RASIYA, W/O. HANEEFA, HOUSE NO.131, KOTTEKKADU POST, PALAKKAD. BY ADV. SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2. HAJIRA, 1/77, PARATHIBHA NAGAR, KALMANDAPAM, PALAKKAD-678003. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.762 OF 2011 ------------------------------------------------- Dated this the 15th 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 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 10.02.2007, that too, for an amount of Rs.80,000/-. 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. Thus, as per the record and findings of the courts below, which Crl.R.P.NO.762 OF 2011 2 upheld by this Court, the said amount is with the revision 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. Having regard to the facts indicated above and in view of the above decision of the Apex Court, I am of the view that, especially the petitioner being a lady, the sentence of imprisonment ordered against the petitioner can be set aside and the sentence can be confined to fine only. At the very same time it is also to see that the interest of the complainant is protected especially in the light of the above decision of the Apex Court. 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 revision petitioner being a lady the sentence of imprisonment ordered by the courts below is set aside and she is sentenced to pay a fine of Rs.92,000/- within three months from today and default she is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to deposit a sum of Rs.92,000/- being the fine on or before 15.6.2011 and if there is any failure Crl.R.P.NO.762 OF 2011 3 from the part of the petitioner in depositing the amount on or before the above date on realisation of fine amount, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence a sum of Rs.90,000/- shall be paid to the complainant as compensation under Section 357 (1)(b) of Cr.P.C and the remaining of Rs.2,000/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 15th June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm