KURIAN JOSEPH J.

An interesting novel question of general importance arises for consideration in this criminal revision petition. Is a magistrate justified in awarding rigorous imprisonment under section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") ? It is profitable to extract the said section as such before analysing the above question :

"S. 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :

Provided that nothing contained in this section shall apply unless :

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation. - For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability."

It may be seen that the section only provides that the offenders shall be "punished with imprisonment for a term which may extend to one year".

For answering the above-mooted question, it may be necessary to trace the history behind section 138 of the Act. The said provision was enacted by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988), inserting a new Chapter, viz., Chapter XVIL comprising sections 138 to 142 in the Negotiable Instruments Act, with effect from April 1, 1989. The said Chapter was introduced with a view to enhance the acceptability of cheques in the settlement of liabilities by making the drawer liable for penalties in the case of bouncing of cheques due to insufficiency of funds in the account or for the reason that it exceeds the arrangement made by the drawer, with adequate safeguards to prevent harassment of honest drawers. In short, dishonour of cheques under the above-mentioned circumstances was criminalised by the said amendment.

Section 138 of the Act excludes mens rea taking away the hurdles under section 420 of the Indian Penal Code. While fastening absolute liability, it is now well settled by a catena of decisions of the apex court the provision has to be construed strictly, since absolute liability offences entail conviction on the mere proof that the accused committed the act and it is not a defence even if the accused is entirely without fault and morally innocent. But is it in tune with the fundamental principles of justice that a person is punished with rigorous imprisonment for his poverty ?The apex court in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470; 1982 52 Comp Cas 70 considered the question regarding the justifiability of arrest and detention in civil prison of a person in proceedings under section 51 read with Order 21, rule 37 of the Civil Procedure