Compensation under Section 138 of the N.I. Act should be proportional to the cheque amount, potentially inclusive of interest, aligning with precedents for adequate reparation.

O R D E R

Sri.Sukesh filed S.T.C.No.1550 of 2005 before the Judicial First Class Magistrate-I, Kannur alleging that Dr.K.K.Bhargavi committed an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The learned Magistrate after trial convicted the accused and sentenced her to undergo simple imprisonment for six months. She was further ordered to pay Rs.1,50,000/- as compensation to the complaint. The accused appealed. The appellate court confirmed the conviction, but modified the sentence. The accused was sentenced to undergo imprisonment till the rising of the court. The order to pay compensation of Rs.1,50,000/- was maintained. Aggrieved by the same, the accused filed Crl.R.P.No.571 of 2023. The complainant filed Crl.R.P.No.768 of 2023 and his grievance is that the compensation ordered was insufficient and twice the amount of cheque should have been ordered as compensation.

2. Heard the learned counsel for the complainant, the learned counsel for the accused and the learned Public Prosecutor.

3. The learned counsel for the accused submitted that the accused had already undergone sentence and paid the amount of compensation of Rs.1,50,000/-. The said fact is affirmed by the learned counsel for the complainant. It is submitted by the learned counsel for the accused that having the accused undergone sentence and paid the amount of compensation, she does not pursue her revision. In the light of the said submission, Crl.R.P.No.571 of 2023 is to be dismissed as withdrawn.

4. The learned counsel for the complainant places reliance on the direction issued by the Apex court inVijayan R. v. Baby another [ (2012) 1 SCC 260 ] that in all cases of conviction for an offence under Section 138 of the N.I.Act, the courts shall lean in favour of ordering compensation by imposing fine upto twice the cheque amount keeping in mind the cheque amount and the interest thereon at the rate of 9%

per annum. The learned counsel would submit that the amount covered by the cheque fell due on 25.10.2004 and the compensation ordered by the court is the cheque amount only. When that amount was paid recently alone, there occurred denial of the compensation the complainant legitimately entitled. It is accordingly contended that the order of the courts below allowing compensation of Rs.1,50,000/- alone is incorrect and illegal requiring interference by this Court.

5. In the light of the direction of the Apex court contained inVijayan (supra), the court while imposing fine or compensation, interest at the rate of 9% per annum shall ordinarily form its part. Of course, if there is sufficient reason the said rule can be departed from. InSasikumar v. Ushadevi [ 2023 (6) KHC 444 ] this Court, while considering a revision petition where a question of inadequacy of compensation was raised, held that the Criminal Court while sentencing an accused for the offence under Section 138 of the N.I. Act has to keep the compensatory part in mind, which has to be commensurate with the cheque amount and not to exceed twice the amount, so that it can be appropriated towards the compensation payable to the complainant under Section 357 of the Code.

6. The learned counsel for the accused submitted that having the accused undergone the sentence and paid the amount of compensation, it is quite unjust and inappropriate to interfere with the order regarding payment of compensation. It is also submitted that the accused is now living in penury and fastening her with liability to pay a further amount of compensation will bring about untold miseries to her. Since the revision petition filed by the accused is still pending, the order of sentence had not become final and therefore there is no prohibition in interfering with order of sentence by the court below, especially when the appellate court altered the sentence. Having considered the facts and circumstances of the case including the amount of the cheque and the present condition of the accused, I am of the view that