IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 Crl.Rev.Pet.No. 2488 of 2011() ------------------------------ CRA.254/2008 of I ADDL. SESSIONS COURT, KOLLAM CC.9/2007 of JUDICIAL IST CLASS MAGISTRATE COURT-IV, PUNALUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JAYASREE, GOPALAYAN, KUTTINADU, KARUKONE, ANJAL, PATHANAPURAM TALUK. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2. V.CHANDRASEKHARAPILLAI, PUTHENVEEDU, KUTTINADU, KARUKONE, ANJAL, PATHANAPURAM TALUK. PUBLIC PROSECUTOR SMT.SEENA.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pm S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P.No. 2488 of 2011 --------------------------------------------- Dated this the 18th day of October, 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short the N.I.Act, concurrently by the two courts below. Sentence imposed against the accused, as modified by the learned Sessions Judge in appeal is simple imprisonment for one month with direction to pay compensation of Rs.1,00,000/-, the cheque amount, with default term of simple imprisonment for one month more. 2. When the revision came up for consideration, the learned counsel for the revision petitioner/accused submitted that he has no arguments on merits to assail conviction but only against the sentence imposing substantive term of imprisonment to undergo incarceration in prison for a period of one moth, with a request to be made for grant of some more time to pay off the compensation awarded and thus avoid the default term of imprisonment. 3. Having regard to the offence with which the accused stand convicted emerging from the dishonour of a cheque, I find Crl.R.P.No. 2488 of 2011 2 the punishment directing his imprisonment for a term in prison can be justified only if the facts established in the case warrant such severe and harsh treatment as part of the sentence. No such special circumstance has been made out in the case to direct his incarceration for a period of one month in prison. The cheque issued by him on presentation was dishonoured, no doubt, renders him culpable for the offence under Section 138 of the N.I.Act, if the amount has not been paid within the statutory period provided on receipt of notice intimating the dishonour of cheque. True, it is not open to the drawer to canvass any defence that dishonour was never contemplated. However, in awarding punishment against the drawer of such instrument, even where the essential ingredients of the offence are made out, the court cannot be oblivious to the fact that the dishonour of a cheque might have arisen for reasons beyond his control. When that be so, in the absence of exceptional circumstance justifying the imposition of term of imprisonment against the offender, such harsh punishment is not called for. In that view of the matter, I find sentence of imprisonment imposed against the accused has to be modified and reduced till the Crl.R.P.No. 2488 of 2011 3 rising of the court retaining the compensation awarded with the default term. 4. So far as the request made by the counsel for grant of some more time for payment of the compensation, it is seen cheque involved in the case is dated 30.7.2006. The dishonour of that instrument has lead to the prosecution and conviction of the accused. The time lapse taken for the prosecution cannot be ignored in examining the request for time for payment, and that be so, prima facie, there is no merit in the request made. However, considering the submissions made by the learned counsel pointing out the extenuating circumstances available in favour of the accused to seek some more time for payment, I find a short period, as indicated hereunder, can be granted. 5. Affirming the conviction sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court retaining the compensation fixed at Rs.1,00,000/- with default term of simple imprisonment for one moth. Petitioner is directed to appear before the magistrate on 03.01.2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. The Crl.R.P.No. 2488 of 2011 4 magistrate is directed to keep in abeyance the execution of the sentence against the accused till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc