Modification of sentence under Section 138 of the Negotiable Instruments Act balances punishment with opportunity for compensation.

ORDER

The petitioner is the accused in C.C.No.893/2004 on files of the Judicial First Class Magistrate Court-II, Kottarakkara. He was convicted by the learned Magistrate for the commission of offence under Section 138 of the Negotiable Instruments Act , and was sentenced to undergo Simple Imprisonment for three months with a further direction to pay compensation of Rs.4,00,000/- to the complainant/first respondent. The Appellate Court confirmed the above conviction and sentence. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

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

3. The Trial Court relied on the evidence tendered by the first respondent/complainant as PW1, and the documents marked as Exts.P1 to P6 to arrive at the finding that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act , in connection with the dishonour of a cheque for Rs.4,00,000/-, which he issued to the complainant, and his failure to make payment of the cheque amount despite statutory notice issued by the complainant. Though the petitioner adduced defence evidence through the examination of one witness as DW1, and marking of three documents as Exts.D1 to D3, the Trial Court found that the aforesaid evidence were totally insufficient to displace the presumptions under Sections 139 and 118 of the . The Appellate Court has also made a re-appraisal of the entire evidence and concurred with the findings of the Trial Court. On going through the case records as well as the reasoning in the impugned judgments, I am of the view that there is absolutely no reason to interfere with the concurrent findings of conviction of the courts below in the above regard.

4. However, in the matter of sentence, it appears that the prison term of three months Simple Imprisonment is somewhat excessive, and disproportionate to the gravity of the offence committed by the petitioner. Having regard to the nature of the criminal liability incurred under Section 138 of the Negotiable Instruments Act , I am of the view that the accused should be given an opportunity to avoid incarceration in prison, if he is ready to make good the loss sustained by the complainant, by paying the compensation amount. For the above reason, the Simple Imprisonment for three months awarded by the courts below, is liable to be reduced to imprisonment till the rising of Court. The learned counsel for the petitioner submitted that a reasonable time may be granted to the petitioner to make payment of the compensation amount awarded by the courts below, since the petitioner is under severe financial constraints. Having regard to the above submission of the learned counsel, I feel it necessary in the interests of justice, to grant a period of six months time to the petitioner to make payment of the compensation.

Subject to the above modification, the revision petition 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 confirmed.

2) In supersession of the sentence awarded, the petitioner is sentenced to imprisonment till the rising of Court with a further direction under Section 357 (3) Cr.P.C. to pay compensation of Rs.4,00,000/- (Rupees Four lakh only) to the complainant/first respondent.

3) In default of payment of compensation as directed above, the petitioner will undergo Simple Imprisonment for a period of one month.

4) The petitioner is granted a period of six months from today to surrender before the Trial Court to undergo the revised sentence imposed by this Court, and to make payment of the compensation amount to the complainant.

The Registry shall transmit a copy of this order, along with the case records, to the Trial Court for the enforcement of the revised s