IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2912 of 2010()
1. ALEXANDER FRANCIS,
... Petitioner
Vs
1. SUJOY CHERIAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.J.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :07/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P. No.2912 of 2010
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Dated this the 7th day of October, 2010.
O R D E R
The petitioner is the accused in a prosecution for an offence
punishable u/s.138 of Negotiable Instruments Act. The trial court
found him guilty and sentenced to undergo simple imprisonment
for 4 months and to pay a fine of Rs.2 lakhs and the default
sentence is fixed as simple imprisonment for 2 months. Though
an appeal was filed, by judgment dated 30.4.2010 in
Crl.A.No.685/08, the Court of Addl. District and Sessions Judge
(Ad hoc)-II, Kottayam, dismissed the appeal confirming the
conviction and sentence.
2. The learned counsel for the revision petitioner submitted
that, he has no contention on merit but the revision petitioner
require some time to pay the fine amount ordered by the courts
below and the revision petitioner is prepared to pay the amount
within one month. The learned counsel for the revision petitioner
submitted that, infact the revision petitioner has already paid the
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entire amount to the complainant and therefore it is submitted
that the above payment may be recorded and the revision
petitioner may be relieved of further payment as directed by the
courts below.
3. The Apex Court in a recent decision reported in
Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457)
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, I am of the view that the
sentence of imprisonment ordered by the courts below can be
modified and reduced to one day simple imprisonment and at the
very same time, the fine amount can be enhanced to the tune of
Rs.2,05,000/- and in case of default in paying the fine amount,
the revision petitioner shall undergo simple imprisonment for 2
months.
4. The learned counsel submitted that, as the amount has
already paid to the complainant, the revision petitioner may be
relieved from paying Rs.2 lakhs as fine and instead of that, a
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direction may be issued only to deposit Rs.5,000/- as fine in the
court below, by the revision petitioner.
5. This court, in this revisional stage is not expected to go
into the transaction between the complainant and the revision
petitioner but it is made clear that, if the revision petitioner is able
to convince the learned Magistrate of the trial court regarding the
payment of Rs.2 lakhs to the complainant, by filing a memo or a
statement from the part of the complainant, the trial court need
not insist for the payment of Rs.2 lakhs being the fine amount
and he need to deposit only Rs.5000/- being the balance amount
towards fine and if there is any failure on the part of the revision
petitioner or the complainant, to appraise the court regarding the
payment of the fine amount, the trial court is free to take coercive
steps against the revision petitioner for the realisation of the
entire fine amount ordered. Accordingly, the revision petitioner is
directed to appear before the trial court on 8.11.2010 to receive
the modified sentence and to convince the trial court regarding
the payment of Rs. 2 lakhs to the complainant as compensation
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out of the fine amount and for the payment of Rs. 5000/- towards
the balance of fine amount. If the petitioner fails to appraise the
trial court regarding the payment of the entire fine amount, the
trial court is free to take steps for the execution of the sentence
and realisation of the fine amount.
V.K.MOHANAN,
Judge.
ami/