The court upheld the conviction under Section 138, emphasizing that a sentence can be modified if the appellant is willing to pay compensation.

ORDER

The petitioner is the accused in S.T.No.637 of 2016 on the files of the Judicial First Class Magistrate Court, Kadakkal. He was convicted and sentenced by the learned Magistrate for the commission of the offence under Section 138 of the Negotiable Instruments Act to undergo Simple Imprisonment for a period of three months, and to pay fine Rs.3 lakh with the default clause of Simple Imprisonment for three months. The entire fine amount was directed to be paid as compensation to the complainant. In the appeal preferred before the Sessions Court, Kollam, the learned Sessions Judge confirmed the conviction as well as the sentence of imprisonment awarded by the learned Magistrate. However, it was clarified that the amount of Rs.3 lakh awarded by the learned Magistrate will be treated as compensation under Section 357(3) Cr.P.C. With the above modification, the appeal was dismissed by the learned Sessions Judge. Aggrieved by the above concurrent findings of the courts below, the petitioner is here before this Court with this revision petition.

2. Heard the learned counsel for the petitioner, the learned counsel for the complainant / 1^st respondent and the learned Public Prosecutor representing the State of Kerala.

3. Before the Trial Court, the complainant and two witnesses tendered evidence as PWs 1 to 3, and brought on record seven documents as Exts.P1 to P7 in support of the allegations in the complaint. It is after the evaluation of the aforesaid evidence that the learned Magistrate found the petitioner guilty of commission of the offence under Section 138 of the Negotiable Instruments Act , and convicted him thereunder. The Appellate Court made a re-appraisal of the entire evidence and concurred with the findings of the learned Magistrate. On going through the case records as well as the impugned judgments of the courts below, I am of the view that there is absolutely no illegality, impropriety or irregularity in the conviction, warranting interference of this Court in revision in exercise of the powers under Section 397 Cr.P.C.

4. The learned counsel for the petitioner submitted that the petitioner had already deposited an amount of Rs.30,000/- out of the compensation amount in compliance with the directions of this Court while admitting this revision. It is further submitted that the petitioner may be given a period of three months time for making payment of the balance amount of Rs.2,70,000/- to the respondent.

5. The offence under Section 138 of the Negotiable Instruments Act is, to a certain extent, of quasi civil nature. The criminal liability in connection with the aforesaid offence would arise due to the inability of the debtor to make payment of the amount, which he is indebted to pay the creditor. Normally, in such offences, the courts would be loath to award a prison term, if the accused is willing to make payment of the amount due to the complainant and mitigate the loss sustained by him. Having regard to the above principle of law, I am of the view that the sentence of Simple Imprisonment for three months awarded by the courts below has to be excluded, if the petitioner is ready to make payment of the balance amount due to the complainant out of the compensation ordered by the Appellate Court. Therefore, the revision petition has to be disposed of, subject to the above modification in the sentence portion.

In the result, the revision petition stands allowed in part as follows :-

(i) The concurrent findings of the courts below, convicting the petitioner for the commission of the offence under Section 138 of the Negotiable Instruments Act , are hereby confirmed.

(ii) In supersession of the sentence awarded by the courts below, the