IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Crl.Rev.Pet.No. 1699 of 2011 ------------------------------------ CRA.214/2010 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.1289/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVISION PETITIONER/APPELLANT/ACCUSED: BABY.K.T., INDIKKATTIL HOUSE, VAKAYAR.P.O., KONNY, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: 1. CHINNAMMA SKARIAH, KOICKAL HOUSE, NANNUVAKKADU MURI, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY PP SRI.SABU SREEDEHARAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.Satheesachandran, J. ------------------------------------------- Crl.R.P.No.1699 of 2011 ------------------------------------------- Dated this the 12th day of August, 2011 ORDER The revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short the N.I. Act, concurrently by the two inferior courts. Notice was ordered to the first respondent and also to the counsel who appeared for him in the Magistrate's Court. Today, the first respondent is represented by Advocate Sri.V.Sethunath. Learned counsel for the revision petitioner submits that he has no arguments on merits to challenge the conviction, but only as against the sentence imposing imprisonment for a substantive term and also a request for some more time to pay off the fine and thus avoid the default term of imprisonment. 2. Learned Magistrate, on conviction of the accused, has sentenced him to undergo simple imprisonment for a period of seven months and to pay a fine of `.8,40,000/- with default term of further period of imprisonment for three months. The fine amount, if realised, was directed to be paid as compensation to the first respondent/ complainant. Learned Sessions Judge, affirming the conviction, has retained the sentence as aforesaid without any modification. So far as CRRP 1699/2011 2 the conviction imposed against the accused, as there is no challenge, no dilation is called for. With respect to the sentence imposed, though the cheque amount is shown to be substantial, going through the judgments rendered by both the courts below, I find no special circumstance justifying a harsh punishment for incarceration of the accused, an offender found guilty of the offence under Section 138 of the N.I. Act to undergo simple imprisonment for a period of seven months. Though the Statute provides for imposition of a prison term on conviction of the accused found guilty of the offence under Section 138 of the N.I. Act, in the absence of special circumstance, such harsh punishment is not to be invoked, as the dishonour of the cheque giving rise to prosecution and ultimately the conviction of the accused may arise for reasons beyond the contemplation of the drawer at the time of making the instrument and handing it over. In the given facts of the case, I find that the substantive term of imprisonment imposed against the petitioner is to be reduced to one day, till rising of the court. 3. Accordingly, affirming the conviction, the sentence imposed against the accused is modified to imprisonment for a day, till rising of the court retaining the fine amount awarded with the default term. So far as the request made by the accused for further time to pay off the fine, it has to be examined with reference to the date of issue of CRRP 1699/2011 3 the cheque. The cheque in the present case is seen dated 10.2.2007. When that be so, there is no merit in the request made for further extension of time. However, taking note of the submissions made by the learned counsel for the petitioner highlighting the extenuating circumstances in favour of the accused and also the amount involved is substantial, there will be a direction to the learned Magistrate to keep in abeyance the execution of the sentence for a period of ten weeks from today. Petitioner is directed to appear before the Magistrate on 01.11.2011 to serve out the substantive term of imprisonment for a day, till rising of the court, and to report payment of the fine. In default of his appearance and non payment of the fine, learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. The revision is disposed of. (S.S.Satheesachandran, Judge) tkv