IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.Rev.Pet.No. 561 of 2011() ----------------------------- CRA.586/2008 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.1033/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S): --------------------- 1. FOR DOSTHY KURIES & INSTALMENTS (P) LTD., MUNDUR DESOM, ANJUR VILLAGE, THRISSUR TALUK, REP. BY ITS MANAGING DIRECTOR, P.O. MUNDUR. 2. A.F.THOMAS, MANAGING DIRECTOR, DOSTHY KURIES AND INSTALMENTS (P) LTD., MUNDUR DESOM, ANJUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): --------------- 1. SUNNY, S/O. KANJIRAPARAMBIL PORINCHU, P.O. MUNDUR, ANJUR VILLAGE, THRISSR DISTRICT - 680 549. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.561 OF 2011 ------------------------------------------------- Dated this the 22nd 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 first revision petitioner is involved in the conduct of chitty. The second petitioner is the Managing Director of the first petitioner concern. The cheque in question is dated 05.03.2004, that too, for an amount of Rs.1,00,000/- which is due to the complainant, who is one of the subscribers of the chitty conducted in the revision petitioner. Though the trial court as Crl.R.P.NO.561 OF 2011 2 well as the appellate court has concurrently found that the cheque in question was issued towards the discharge of the liability due to the complainant out of the chitty transaction. But the amount covered by the cheque in question is not paid so far. 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. Considering the facts indicated above and the legal position, I am of the view that the substantial sentence imposed against the second revision petitioner requires modification and it is equally important to note that while modifying the sentence, the interest of the complainant has to be protected. 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, while confirming the sentence to pay fine of Rs.5,000/- imposed against the first revision petitioner, the sentence of imprisonment ordered against the second revision petitioner is modified and reduced into one day simple imprisonment i.e, till the rising of the court. While reducing the sentence of imprisonment, the order to pay fine against the second revision petitioner is modified and he is directed to Crl.R.P.NO.561 OF 2011 3 deposit a sum of Rs.1,25,000/- being the fine amount within three months from today and in default he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, both the accused are directed to deposit the fine amount on or before 22.06.2011. The second revision petitioner is directed to appear before the trial court on 22.06.2011 to receive the sentence of imprisonment as modified and fixed by this Court and to see that the fine amount as ordered against both the accused are paid at least on the date of his appearance. 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 entire fine amount a sum of Rs.1,25,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining Rs.5,000/- shall be deposited in the State Exchequer. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm