IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 Crl.Rev.Pet.No. 701 of 2005() ----------------------------- CRA.1030/2004 of SESSIONS COURT, ERNAKULAM CC.1366/1999 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): --------------------- JOY.K.O., S/O.PAPPACHAN, KALAMBATTUKUDY HOUSE, ELAMBAKAPPILLY P.O., KOOVAPPADY VILLAGE. BY ADV. SRI.S.U.NAZAR SRI.MANSOOR.B.H. SRI.P.M.HARIS (POOTHULIL) RESPONDENT(S): --------------- 1. SHAJI.P.K., S/O.KUMARAN, PUTTADA HOUSE, ELAMBAKAPPILLY P.O., KOOVAPPADY VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR M.K.PUSHPALATHA, HIGH COURT OF KERALA. ADV. SRI.N.ANILKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No: 701 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December 2010 O R D E R This Revision petition is filed by the accused in C.C. No. 1366 of 1999 on the file of Judicial First Class Magistrate Court, Perumbavoor challenging the conviction and sentence passed against him for the offence punishable under Section 138 of N.I. Act. The cheque amount was Rs.90,000/-. In the Trial Court, the accused was sentenced to undergo simple imprisonment for 3 months and also to pay an amount of Rs.91,000/- as compensation to the complainant, in default to undergo simple imprisonment for 45 days. In the appeal the conviction was confirmed and the sentence was modified to undergo imprisonment till rising of court and to pay compensation of Rs.1,10,000/- in default to undergo simple imprisonment for three months. 2. I heard the learned counsel for the revision petitioner, learned counsel for the complainant and the public prosecutor. 3. The learned counsel appearing for the revision petitioner reiterated the same contention raised before the Trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below. 4. The courts below have concurrently held that the cheque in question Crl.R.P. No: 701 of 2005 2 was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the Revision petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was 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 and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.1,10,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The Revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within eight months from today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple Crl.R.P. No: 701 of 2005 3 imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to. 6. In the result, this Revision petition is disposed of confirming the conviction entered by modifying the sentence imposed on the revision petitioner. Sd/- M. L. JOSEPH FRANCIS ( Judge) /True copy/ PA to Judge pm/