If a default sentence imposed is undergone, does that extinguish the liability to pay compensation ordered to be paid under Section 357 (3) Cr.P.C.? Are efforts to recover the amount liable to be continued under the proviso to Section 421 Cr.P.C. even after the accused undergoes the default sentence? These are the interesting questions that arise in this Revision Petition which arises from a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The sentence imposed by the trial court was modified by the appellate court in that a default sentence was imposed if the compensation amount were not paid.

2. There is no challenge against verdict of guilty and conviction. In these circumstances it is unnecessary for me to advert in detail to the relevant facts. Suffice it to say that I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable.

3. The cheque is for an amount of Rs.4,74,145.50. The trial court imposed a sentence of simple imprisonment for a period of 6 months. There was a further direction to pay an amount of Rs.4,75,140/- (only the actual cheque amount) as compensation). The trial court did not impose any default sentence.

4. Before the appellate court, it would appear that the petitioner bargained and invited a default sentence under Section 357 (3) Cr.P.C. the petitioner/accused has already undergone the substantive sentence of simple imprisonment for a period of 6 months, it is submitted at the bar. The petitioner prayed that a default sentence may be imposed if there was non payment of the compensation. The learned Sessions Judge appears to have obliged the petitioner. The default sentence of simple imprisonment for a period of 2 months was imposed.

5. Evidently, the petitioner had sought such a default sentence under the impression that if he undergoes the default sentence, his property will not be proceeded against for recovery of the compensation amount under Section 421 Cr.P.C. The learned Sessions Judge who accepted the request of the petitioner for a default sentence proceeded to observe that the fact that the default sentence was undergone will not in any way absolve the petitioner of his liability to be proceeded against for recovery of the amount under Section 421 Cr.P.C The petitioner in these circumstances has come to this Court to challenge the sentence imposed on him including the observations made by the learned Sessions Judge.

6. I have already adverted to the principles governing imposition of a sentence in a prosecution under Section 138 of the N.I. act in the decision reported in Anilkumar v. Shammi [2002 (3) KLT 852]. In the facts and circumstances of this case, I do not find any compelling reasons which can persuade me to insist on imposition of any deterrent substantive sentence of imprisonment. But the petitioner has already undergone the substantive sentence of imprisonment for 6 months, it is submitted at the bar by the learned counsel for the petitioner. I am however satisfied that the sentence can be modified and a deterrent substantive sentence of imprisonment can be avoided. In doing so, I note that the petitioner will be entitled to claim set off of the period already undergone to the default sentence imposed by the learned Sessions Judge. Set off is not of period in custody prior to the conviction. It is set off of sentence undergone subsequent to the conviction. So the period undergone already can certainly be set of towards the default sentence to be undergone.

7. The problem does not end there. The learned counsel for the petitioner contends that he is willing even to undergo the default sentence imposed now in addition to the substantive sentence which has already been undergone. He does not want any further proceedings for recovery of the compensation amount to be initiated against him. He contends that the observations of the learned Sessions Judge that proceedings for recovery of