K.M. Safeer vs Sreejith and Kerala State

V.K. Mohanan, J.—The accused in a prosecution for an offence punishable u/s 138 of the NI Act is the revision petitioner as he is aggrieved by the judgment dated 30.8.2010 in S.T. No. 69 of 2009 of the court of Judicial First Class Magistrate-III, Mavelikara, and the judgment dated 18.6.2012 in Crl. A. No. 482 of 2010 of the court of Additional Sessions Judge, Fast Track (Ad hoc) court, Mavelikara. Heard the counsel for the revision petitioner and I have perused the orders of the courts below.

As this Court is not inclined to interfere with the concurrent findings of the courts below, the counsel for the revision petitioner submitted that the petitioner is undergoing treatment for ischemic heart disease, cervical spondylosis, diabetes mellitus, hypertension and benign paroxysmal positional vertigo, and hence he is not in a position to appear before the court below. Therefore, it is the submission of the counsel that, a lenient view may be taken in the matter of sentence and some breathing time may be granted to the petitioner to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that, the above submission of the counsel requires positive consideration and at the very same time, the interest of the complainant has to be protected, particularly considering the dictum laid down by the apex court in a recent decision reported in Damodar S. Prabhu Vs. Sayed Babalal H., , which has held that, "In the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects". In the present case, the cheque in question is dated 30.11.2007 that too for an amount of Rs. 1,50,000/- but so far, no amount is seen paid. It appears that though the trial court imposed a sentence of simple imprisonment for a period of 5 months and directed to pay compensation of Rs. 1,52,000/- by its judgment dated 30.8.2010, the lower appellate court reduced the compensation amount and also reduced the substantial sentence, but still then no payment is effected. In the light of the above facts and in view of the submission made by the counsel for the revision petitioner, the sentence of imprisonment can be set aside and the revision petitioner can be sentenced to pay fine and the fine amount can be fixed considering the fact that the cheque in question is dated 30.8.2010 that too for an amount of Rs. 1,50,000/- and the revision petitioner can be granted two months'' time to pay the fine to be fixed by this Court.

In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner for the offence u/s 138 of the NI Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the trial court and modified by the appellate court is set aside and the petitioner is sentenced to pay a fine of Rs. 1,87,500/- within 2 months from today and in default, the petitioner is directed to undergo simple imprisonment for a period of 6 months. On realisation of the fine amount, a sum of Rs. 1,85,000/- shall be paid to the complainant as compensation u/s 357(1)(b) of the Cr. P.C. and the remaining amount of Rs. 2,500/- shall be remitted in the State Exchequer. In case of any failure on the part of the revision petitioner to pay the fine amount, within the time stipulated, 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. Coercive steps, if any, pending against the revision petitioner shall be deferred till 07.03.2013.

The criminal revision petition is disposed of as above.