Boby George vs State of Kerala and K.P. George

V.K. Mohanan, J.—The accused in a prosecution for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the revision petitioner as he is aggrieved by the judgment dated 20.6.2011 in C.C. No. 146 of 2010 of the court of Judicial First Class Magistrate-II, Perumbavoor and the judgment dated 6.7.2012 in Crl.A. No. 380 of 2011 of the court of the Additional District and Sessions Judge (Adhoc-III), North Paravur. As per the appellate court judgment, the conviction, finding and sentence recorded by the trial court are confirmed and accordingly, the accused is sentenced to undergo simple imprisonment for three months for the offence u/s 138 of the N.I. Act and the accused is directed to pay compensation of Rupees Three Lakhs u/s 357(3) of the Cr.P.C. and in default of payment of compensation, he shall undergo simple imprisonment for three months.

As this Court is not inclined to interfere with the concurrent finding of the courts below on merit, learned counsel for the revision petitioner submitted that the sentence imposed against the revision petitioner is exorbitant and unreasonable and the same may be set aside. It is also the submission of the learned counsel that the petitioner requires breathing 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 can be considered positively and according to me, notice to the second respondent can be dispensed with particularly, in the light of the safeguard which is proposed to be incorporated in the order to save the interest of the second respondent/complainant. In the present case, the cheque in question is dated 25.1.2003, that too for an amount of Rs. 3 lakhs/-. Though the courts below have concurrently found that the cheque in question was issued towards the discharge of the liability that is due to the complainant, so far no amount is seen paid in spite of the fact that the appeal was disposed of on 6.7.2012 and now again, the petitioner seeks time. Learned counsel for the petitioner submitted that the petitioner is facing acute financial crisis and the daughter of the petitioner is undergoing treatment. The Honourable Apex Court in the decision reported in Damodar S. Prabhu Vs. Sayed Babalal H., has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, considering the above settled legal position and having regard to the mitigating circumstances, I am of the view that the sentence of imprisonment ordered against the revision petitioner by the trial court and confirmed by the appellate court requires modification and the same can be reduced to one day simple imprisonment. But, at the same time, the compensation amount fixed by the courts below can be converted into fine considering the fact that the cheque in question pertains to the year 2003.

In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner u/s 138 of the N.I. Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is further modified and reduced to one day simple imprisonment, i.e., till the rising of the court. In addition to that, as the sentence is reduced substantially, the direction to pay compensation is set aside and the revision petitioner is sentenced to pay fine and accordingly, the revision petitioner is directed to deposit a sum of Rs. 4,20,000/- (Rupees Four Lakhs Twenty Thousand only) in the trial court within three months from today and in case of default in depositing the fine amount within the time limit, the petitioner is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on 5th April, 2013 to receive the modified sentence ordered by this Court and to deposit the above fine amount. Counsel for the petitioner submitted that the petitioner has already deposited a sum of Rs. 50,000/- in the trial court in terms of the order passed by the lower appellate court at the time of suspending the execution of sentence. If so and the said amount is retained in the trial court, the petitioner need to deposit the balance amount of Rs. 3,70,000/- (Rupees Three Lakhs Seventy Thousand only) towards the fine. In case of any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the modified sentence fixed by this Court and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the fine. On realisation of the fine amount, a sum of Rs. 4,15,000/- shall be paid to the complainant as compensation u/s 357(1)(b) of the Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 5th April, 2013.