IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 2879 of 2011() ------------------------------ CRA.354/2010 2010 COURT OF ADDL.SESSIONS JUDGE, OTTAPALAM. ST.102/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPALAM .................... REVN. PETITIONER: --------------------- A.K.RAJAGOPALAN S/O.M.K.THIRUMULPAD, 'LATHIKA',CHERUPULASSERY, OTTAPALAM TALUK, PALAKKAD DIST BY ADV. SRI.DEVAN RAMACHANDRAN RESPONDENTS: --------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 2. SUKUMARAN, S/O.MADHAVAN NAIR, SECRETARY OTTAPALAM PRIMARY CO-OPERATIVE AGICULTURAL RURAL DEVELOPMENT BANK, OTTAPALAM-679101 R1 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.2879 of 2011 ---------------------------------------- Dated the 3rd day of December, 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 punishable 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 submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant. It is also the submission of the learned counsel that the petitioner requires some time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the submission made by the counsel for the revision petitioner requires positive consideration. 3. It is relevant to note that the cheque in question pertains to the year 2006, that too for a sum of Rs.1,91,753/- . The courts below concurrently found that the cheque in question was issued towards the discharge of a legally enforceable debt that due to the complainant. Though the appellate court CRRP 2879/11 2 disposed of the appeal on 30.9.2011, so far no amount is seen paid. It is also relevant to note that 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 the settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be set aside and the sentence can be confined to fine only, but at the same time the interest of the complainant is also to be protected considering the fact that such a huge amount is due to the complainant for the last five years. 4. In the result, the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below is confirmed. Accordingly, the sentence of imprisonment and the direction to pay compensation ordered by the courts below are set aside, but the petitioner is sentenced to pay a fine of Rs.2,39,690/- which shall be deposited in the trial court within three months from today, in default, he is directed to undergo simple imprisonment for a period of 3 months. CRRP 2879/11 3 5. Counsel for the Revision petitioner submitted that , a sum of Rs.38,350/- has already been deposited in the trial court on the basis of the order passed by the lower appellate court while suspending the execution of the sentence, and that amount may be given credit. If that be so, and if the said amount is retained in the trial court, I am of the view that, the petitioner need deposit only a sum of Rs.2,01,340/-. On reaslisation of the fine amount, a sum of Rs.2,35,000/-(Rs.Two lakhs thirty five thousand only) shall be paid to the complainant as compensation under section 357(1(b) Cr.P.C and the remaining amount of Rs.4690/- (Rs.four thousand six hundred and ninety only) shall be deposited in the State ex chequer. Accordingly, the petitioner is directed to deposit the fine amount on or before the 5th March 2012, and if there is any default on the part of the petitioner in depositing the fine amount within the time stipulated, the trial court is free to take coerce steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. Coercive steps if any pending against the revision petitioner shall be deferred till 5th March, 2012. CRRP 2879/11 4 This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. Kvm/-