P.J. JACOB Vs. K.J. BENOY

JUDGEMENT

(1.) THE accused in a prosecution for an offence punishable under section 138 of the NI Act is the revision petitioner as he is aggrieved by the judgment dated 28.11.1997 in C.C. No. 445 of 1995 of the court of Judicial First Class Magistrate -II, Kannur, and the judgment dated 11.10.2002 in Crl. A. No. 422 of 1997 of the court of Sessions, Thalassery. Though the above revision petition was admitted by this Court and received on file by order dated 19.12.2002, so far the service of notice on the respondent, who is the complainant, is not complete. Therefore, the Registry has posted the matter today in the defect list.

(2.) HEARD the counsel for the revision petitioner and I have perused the orders of the courts below.

(3.) AS this Court is not inclined to grant time and to interfere with the concurrent findings of the courts below, the counsel for the revision petitioner submitted that the sentence imposed against the revision petitioner is exorbitant and harsh, and therefore, the same may be set aside and some breathing time may be granted to the petitioner to pay the amount and the petitioner is ready to pay some amount to compensate the complainant. Having regard to the facts and the circumstances referred to above, I am of the view that, the above submission of the counsel for the revision petitioner can be considered positively. 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". Following the dictum laid down by the Honourable Apex court in the decision, according to me, the sentence of imprisonment can be modified and at the very same time, to safeguard the interest of the complainant, the petitioner can be directed to pay some amount as compensation to the complainant. In this juncture it is relevant to note that the cheque in question is dated 1.3.1995, that too for an amount of Rs.40,000/ -. So, according to me, while modifying the sentence of imprisonment, the revision petitioner can also be sentenced to pay a fine of Rs.74,000/ - and out of that fine amount, the complainant can be ordered to pay the compensation.