Conviction under Section 138 confirmed; modification of sentence emphasizes options to mitigate imprisonment by compensation payment.

O R D E R

The petitioner is the accused in C.C No.632/2000 on the files of the Judicial First Class Magistrate Court, North Paravur. The learned Magistrate convicted the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act , 1881 (in short, ‘NI Act’) and sentenced him to undergo simple imprisonment for a period of one year with a further direction to pay compensation Rs.50,000/- to the complainant/first respondent. In the appeal preferred before the Additional Sessions Court, North Paravur as Crl.A No.168/2004, the learned Additional Sessions Judge confirmed the conviction but modified the sentence to simple imprisonment for six months, while retaining the compensation portion as such. It was further directed that in default of payment of compensation, the petitioner will undergo simple imprisonment for a further term of three months. Aggrieved by the above verdicts of the courts below, the petitioner is here before this Court with this revision petition.

2. Since there was no representation from the part of the petitioner, notice was issued to the petitioner intimating the adjournment of the case, and also informing him that the case would be decided in his absence, if there is no representation on the adjourned posting date. The learned counsel who had been appearing for the petitioner had reported no instructions. In the above circumstances, Adv.Mr.K.Aravind Menon was appointed as Amicus Curiae to represent the petitioner. 3. Heard the learned Amicus Curiae representing the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

4. The Trial court relied on the evidence tendered by the complainant/first respondent as PW1 and the documents marked as Exts.P1 to P6 to arrive at the finding that the complainant has successfully established the commission of offence under Section 138 of the Negotiable Instruments Act by the petitioner. The learned Magistrate observed that the petitioner failed to establish the contention about the issue of Ext.P1 cheque as a security even though one witness and the petitioner had tendered evidence as DW1 and DW2 respectively. The Appellate Court made a re-appraisal of the aforesaid evidence and concurred with the findings of the Trial Court about the commission of offence under of the NI Act by the petitioner.

5. The learned Amicus Curiae argued that neither the complaint nor Ext.P4 notice issued to the petitioner would disclose the precise date when the first respondent is said to have advanced the amount to the petitioner herein. The aforesaid aspect cannot be taken as a ground vitiating the criminal prosecution launched against the petitioner. The evidence tendered by the first respondent would convincingly establish that the petitioner issued Ext.P1 cheque in discharge of a legally enforceable debt which he owed the first respondent/complainant. Exts.P4 to P6 documents would show that the statutory requirements under Clause (b) of Section 138 of the N.I Act had been complied by the first respondent. Therefore, the concurrent findings of the courts below about the commission of offence under of the NI Act by the petitioner, are not liable to be interfered with in this revision proceedings.

6. As regards the sentence awarded by the Appellate Court, it has to be stated that the simple imprisonment for six months is excessive, and disproportionate to the gravity of the offence involved in this case. It is well settled that in cases of this nature, the accused are to be mulcted with the liability to undergo prison term only in case of their failure to pay the amount directed to be remitted by the Courts concerned as fine or compensati