S. Ramachandran Prasanthi, Kureepuzha, Kollam vs State of Kerala and Krishnan Unni Pillai

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 8.6.2010 in S.T. No. 138 of 2008 of the court of Judicial First Class Magistrate-III, Kollam, and the judgment dated 18.10.2012 in Crl. A. No. 238 of 2010 of the court of 1st Additional Sessions Judge, Kollam. Heard the counsel for the revision petitioner and I have perused the orders of the courts below.

Though this Court is not inclined to interfere with the concurrent findings of the courts below, the counsel for the revision petitioner submitted that some breathing time may be granted to the petitioner for paying the compensation amount, since the revision petitioner is a senior citizen and a sick person, and is depending his daughter for his livelihood. 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 accordingly 45 days'' time can be granted to pay the compensation amount fixed by the lower appellate court. The apex court in a recent 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". According to me, the lower appellate court while considering the question of sentence and the compensation amount, the sentence of imprisonment is reduced from 6 months to one day simple imprisonment and at the same time, the compensation amount is enhanced and fixed as `1,30,000/-. If that be so, in the light of the above decision, according to me, no interference is warranted with respect to the sentence as well as the compensation amount fixed by the appellate court and the revision petitioner can be granted 45 days'' time to pay the compensation amount, especially in the light of the submission of the counsel for the petitioner that the petitioner has already been arrested and produced before the court below on 7.1.2013 and he had kept in the court for the day.

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, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the compensation amount fixed by the appellate court is also confirmed and 45 days'' from today is granted to pay the compensation amount, and while confirming the default sentence, it is made clear that the default sentence fixed by the appellate court will attract in case of failure on the part of the petitioner in paying the compensation amount within 45 days from today. Accordingly, the petitioner is directed to appear before the trial court on 23.02.2013 to receive the sentence as modified and fixed by the appellate court and confirmed by this Court, and to pay the compensation amount. The counsel for the revision petitioner submitted that, the petitioner has already deposited a sum of `25,000/- in the trial court in terms of the order passed by the lower appellate court while suspending the execution of sentence. If that be so, and if the amount is retained in the trial court, the petitioner need to deposit a further sum of `1,05,000/- within the time stipulated. On realisation of the compensation amount, the trial court is directed to disburse the entire compensation amount to the complainant. 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 sentence and to pay the compensation 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 compensation amount. It is made clear that the petitioner has already arrested and detained in the court on 7.1.2013, as submitted by the counsel and if the same is correct, it is for the learned Magistrate to record his satisfaction about the execution of that part of the sentence, otherwise it is left open to the Magistrate to take steps towards the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 23.02.2013.

The criminal revision petition is disposed of as above.