IMPORTANT POINTS
The gravity of an offence under Section 138 of the Act cannot be equated with an offence under the Indian Penal Code or other criminal offences. An offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones (See Kaushalya Devi Massand v. Roopkishore : AIR 2011 SC 2566). Substantive sentence of imprisonment shall not be imposed in such cases except in exceptional circumstances. At the same time, direction to pay compensation to the complainant by way of restitution in regard to the loss on account of dishonour of the cheque shall be made. It would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

JUDGMENT :

The revision petitioner is the accused in the case S.T.No.2327/2010 on the file of the Court of the Judicial First Class Magistrate-II, Pathanamthitta.

2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three months and directed him to pay an amount of Rs.5,00,000/-as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months.

3. The petitioner filed Criminal Appeal No.9/2017 before the Court of Session, Pathanamthitta challenging the conviction entered against and the sentence imposed on him by the trial court. The appellate court confirmed the conviction as well as sentence and dismissed the appeal. The concurrent verdicts of guilty, conviction and sentence made against the petitioner by the courts below are challenged in this revision petition.

4. Heard learned counsel for the revision petitioner and the also the second respondent/complainant.

5. The case of the complainant, as stated in the complaint, is that in discharge of a legally enforceable debt due to him, the accused issued a cheque dated 05.04.2010 for Rs.5,00,000/-. It is stated that when the cheque was presented in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount.

6. During the trial of the case, the complainant got himself examined as PW1 and Exhibits P1 to P6 were marked on his side. The accused got himself examined as DW1 and another witness was examined by him as DW2 and Exts.DI to D3 documents were marked on his side.

7. When examined as PW1, the complainant gave evidence in examination-in-chief that the accused had borrowed an amount of Rs.5,00,000/-from him on 09.03.2010 and that the accused signed and issued Ext.P1 cheque dated 15.04.2010 for that amount in discharge of that debt.

8. On cross-examination, PW1 deposed that there were four cases filed by him against the accused. He also stated that it was from the amount obtained by him by selling his 23 cents of property that he had advanced the loan to the accused.

9. The plea of the accused was that the complainant was an employee under him and that he had terminated the services of the complainant in his establishment and when the complainant left the office, he had stolen the signed blank cheque leaves which were kept by him in his office.

10. The accused got himself examined as DW1. He stated that he had no financial transaction with the complainant. He stated that the complainant was the Manager of his office. He deposed that, on account of some problems created by the complainant in the office, he terminated the services of the complainant and when the complainant left his office, he had taken the signed blank cheques which he (accused) had kept in the office.

11. DW2 is an employee in the establishment of the accused. He gave evidence that the complainant was a staff in the same office.

12. On cross-examination, PW1 denied the suggestion that he was an employee of the accused and that he had stolen the cheque from the office of the accused.

13. The plea of the accused that, the cheque was stolen by the complainant from his office, cannot be accepted as probable. The testimony of the accused in that regard is not reliable. The reasons are the following.

14. In the first place, there is no documentary evidence to show that the complainant was a staff of the office of the accused. Of course, the accused produced Ext.D1, which is a copy of the order issued by him appointing the complainant as the Manager of his office. Ext.D1 is a self-serving document. There is