The compensatory nature of proceedings under Section 138 of the Negotiable Instruments Act and the recoverability of compensation even after default sentence as provided in Section 357(3), 421, and 431.

JUDGMENT :

SUNDER MOHAN, J.

Prayer: Criminal Revision petition filed under Sections 397 and 401 Criminal Procedure Code, to call for the records in C.A. No. 146 of 2015 on the file of Principal Sessions Judge Salem dated 02.11.2016 confirming the order of conviction passed by the learned Judicial Magistrate No. 4 Salem in STC No. 1679 of 2013 dated 15.10.2015 set aside the same and set the petitioner at liberty.

1. This revision arises against the judgment of the learned Principal Sessions Judge, Salem, passed in C.A. No. 146/2015 on 02.11.2016.

2. The petitioner faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in S.T.C. No. 1679/2013 on the file of the learned Judicial Magistrate No. IV, Salem. The prosecution case is that the petitioner had borrowed a sum of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only) from the Respondent on 03.04.2013 to meet his urgent business needs and agreed to repay the said amount within a month. Towards discharge of the said debt, the petitioner issued a post dated cheque drawn on Federal Bank Ltd. Attayampatty Branch, Salem for a sum of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only). The complainant presented the cheque for collection and upon the same having returned for the reason “Payment stopped by Drawer” issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act.

3. Before the Trial Court, the respondent examined himself and marked 6 exhibits. The petitioner did not examine any witnesses or mark exhibits on his side.

4. The trial Court rendered a finding of conviction and sentenced the petitioner to undergo one year S.I and to pay a compensation of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only) to the complainant in one month and in default to suffer three months S.I. Against the same, the petitioner moved an Appeal in C.A. No. 146/2015, which came to be dismissed by the learned Principal Sessions Judge, Salem.

5. Heard, Mr. M. Devaraj, learned counsel for the petitioner and Mr. K.S. Karthik Raja, learned counsel for the respondent.

6. On perusal of the judgment of the courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. The Petitioner has not dislodged the said presumption either by cross examination or by adducing evidence on his side. The defence of the petitioner that the cheque was not issued in discharge of debt or liability to the respondent has not been established by the petitioner. Therefore, this Court finds no reason to interfere with the findings of the Courts below.

7. The learned counsel for the petitioner submitted that during the pendency of the above revision the entire cheque amount was paid to the respondent. The learned counsel also filed a memo to that effect which reads as follows:

“......2. The Petitioner was convicted by the trial Court by judgment dated 15.10.2015 and imposed a sentence of one year simple imprisonment and compensation of Rs. 4,33,000/- to be paid in one month with a default sentence of 3 months simple imprisonment. The Appellant had filed the appeal against the same in C.A. No. 146 of 2015 and the appeal was dismissed by the learned Principal Sessions Judge Salem by order dated 02.11.2016. Challenging the same the above revision has been filed.

3. The petitioner states that pending the revision petition, the appellant had negotiated with the respondent for settlement of Rs. 2,00,000/- and had paid a sum of Rs. 1,50,000/- by way of DD dated 07.12.2021 bearing No. 739582 the same was handed over to the counsel in the court on 14.12.2021 which has been recorded in this Hon'ble Court. Further a sum of Rs. 1,50,000/- finally a sum of Rs. 1,33,000/- was paid by way of DD No. 739597 dated 28.12.2021 as such the entire payment has been made.”

The learned counsel for the respondent fairly admits that the entire cheque amount was received by the respondent