O R D E R

This Revision arises against the Judgement of the learned VI Additional Sessions Judge, City Civil Court at Chennai

2. The petitioner faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in C.C.No.1869 of 2010 on the file of the learned Metropolitan Magistrate, Fast Track Court No.4, George Town, Chennai – 600 001. The prosecution case is that the petitioner had borrowed a sum of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) from the Respondent to meet his urgent business needs and agreed to repay the said amount. Towards discharge of the said debt, the petitioner issued two post dated cheques drawn on Lakshmi Villas Bank Ltd., Tirupur for a sum of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only). The complainant presented the cheques for collection and upon the same having returned for the reason “Funds Insufficient”, issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act.

3. Before the Trial Court, the Respondent examined himself and marked eleven Exhibits. The petitioner examined himself and marked two Exhibits on his side.

4. The Trial Court rendered a finding of conviction and sentenced the petitioner in Section 138 of N.I.Act to undergo one year S.I and to pay a compensation of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) to the complainant. Against the same, the petitioner moved an Appeal in C.A.No.167/2015, which came to be dismissed by the learned VI Additional Session, City Civil Court, Chennai.

5. Heard, Mr.A.Balasingh Ramanujam, learned counsel for the petitioner and Mr.V.S.Dixit, learned counsel for the Respondent.

6.On perusal of the Judgement of the Courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. The Petitioner has not dislodged the said presumption either by cross examination or by adducing evidence on his side. The defence of the petitioner that the cheque was not issued in discharge of debt or liability to the respondent has not been established by the petitioner. Therefore, this Court finds no reason to interfere with the findings of the Courts below.

7. The learned counsel for the petitioner submitted that the entire cheque amount of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) was paid as early as on 30.10.2018 to the Respondent. The learned counsel for the Respondent fairly admits that the entire cheque amount was received by the Respondent during the pendency of the proceedings. However, he would submit that the Respondent has not agreed for compounding the offence.

8. The learned counsel for the petitioner submitted that the petitioner was unable to make payment earlier in view of his poor financial condition and prayed for modification of sentence. In view of the above factual position, this Court is of the view that the sentence imposed on the petitioner can be modified, keeping in mind that the proceedings under Section 138 of NI Act is primarily compensatory in nature than being punitive as held by the Apex Court in several decisions including in K.A.Abbas H.S.A vs. Sabu Josephand another reported in (2010) 6 SCC 230 and in Meters and Instruments Private Limited and Another vs. Kanchan Mehta reported in (2018) 1 SCC 560. Further the Hon'ble Apex Court in Kumaran vs. State of Kerala and another reported in (2017) 7 SCC 471 considered the question as to whether the compensation can be recovered in the manner provided under Section 421 of Cr.P.C, even if the accused has undergone the default sentence for non payment of compensation. The Honourable Apex Court after considering all the relevant provisions and its earlier judgements held as follows:-

“...

27...Despite this Section 357(3), Section 431, Section 70 IPC and Section 421 (1) proviso would make it clear that by a legal fiction,