Criminal liability under Section 138 is primarily punitive yet involves quasi-civil considerations, allowing for modified sentencing if payment is made.

ORDER

The petitioner is the accused in CC No.882/1999 on the files of the Judicial First Class Magistrate Court, Thiruvalla, a case relating to the commission of offence under Section 138 of the Negotiable Instruments Act . The learned Magistrate convicted the petitioner and sentenced him to Simple Imprisonment for three months with a further direction to pay compensation of Rs.55,000/- to the complainant under Section 357 (3) Cr.P.C. In the appeal, the learned Additional Sessions Judge, Pathanamthitta, confirmed the conviction and modified the sentence by reducing the compensation amount to Rs.50,000/-, while retaining the substantial sentence of Simple Imprisonment for three months awarded by the learned Magistrate. Aggrieved by the above findings of the Trial Court and the Appellate Court, the petitioner is here before this Court with this revision.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

3. The Trial Court relied on the oral evidence of the complainant/2nd respondent as PW1 and the documents marked as Exts P1 to P6, and also considered the defence evidence adduced by DW1 and the document marked as Ext.D1 for arriving at the conclusion about the commission of offence under Section 138 of the Negotiable Instruments Act by the petitioner. The evidence adduced from the part of the complainant in the above regard has been subjected to re-evaluation by the Appellate Court. On going through the evidence on record as well as the reasoning adopted by the courts below in the impugned judgments, I am of the view that the conviction of the petitioner for the commission of offence under of the is not liable to be interfered with. The compensation fixed by the Appellate Court is also perfectly reasonable. But at the same time, the substantial sentence of Simple Imprisonment for three months awarded by the courts below appears to be too harsh when the nature of the offence is taken into account. It is to be borne in mind that the offence under of the is, to a great extent, of quasi civil nature. An offender is fastened with the criminal liability in the above regard only due to his inability to mobilise the amount and to make payment to the complainant/creditor, to whom he is indebted. In such cases, it is highly necessary to avoid the prison term of imprisonment if the accused is ready to make payment of the amount due to the complainant.

4. Having regard to the above principles of law, I am of the view that the sentence of Simple Imprisonment awarded by the courts below is liable to be limited to imprisonment till the rising of the Court, if the petitioner is ready to make payment of the compensation ordered by Appellate Court.

5. Subject to the above modification in the sentence, the revision stands disposed of as follows:

1. The concurrent findings of the courts below, convicting the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act , are hereby upheld.

2. In supersession of the sentence awarded by the Appellate Court, the petitioner/accused is sentenced to imprisonment till the rising of the Court with a further direction to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant/2nd respondent under Section 357 (3)

Cr.P.C.

3. The petitioner/accused is granted a period of three months’ time to make payment of compensation to the complainant/2nd respondent as directed above.

4. In default of payment of compensation as directed in this order, the petitioner will undergo Simple Imprisonment for a period of three months.

5. The petitioner shall surrender before the Trial Court on