IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.Rev.Pet.No. 799 of 2011() ----------------------------- CRA.303/2009 of ADDL.SESSIONS COURT, (FAST TRACK NO.II), PATHANAMTHITTA ST.40/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- AMINA BEEVI, W/O.ABDULLA, ANEESHA MANZIL, THYKKAVU, PATHANAMTHITTA P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.SETHUNATH SRI.PRAKASH KESAVAN RESPONDENT(S): COMPALAINANT: ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SHAHUL HAMEED.P.K., PARANKAMTHOTTATHIL HOUSE, LAHA P.O., PERUNAD VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.799 OF 2011 ----------------------------------------------- Dated this the 18th 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 03.10.2007, that too, for an amount of Rs.1,00,000/-. Though the courts below have concurrently found that the said amount is due to the complainant, but so far no amount is seen paid to the complainant. Thus, as per the record and findings of the courts Crl.R.P.NO.799 OF 2011 2 below, which upheld by this Court, the said amount is with the revision petitioner for the last three 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. Therefore, according to me, the sentence of imprisonment ordered by the courts below requires modification and while granting some time to pay the fine amount, the interest of complainant is also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the amount is due for the last three years. 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 sentence of imprisonment imposed by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e. till the rising of the court. While modifying the sentence, in addition to that the direction to pay compensation is set aside and the revision petitioner is directed to pay a fine of Rs.1,15,000/- within two months from today and in case of any default, the revision petitioner is directed to undergo simple imprisonment for a Crl.R.P.NO.799 OF 2011 3 period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on 18.05.2011 to receive the modified sentence of imprisonment and fine as ordered by this court. 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 fine amount a sum of Rs.1,12,500/- shall be paid to the complainant under Section 357(1)(b) Cr.P.C and the remaining of Rs.2,500/- shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 18th May, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm