O R D E R

This revision arises against the judgment of the learned I Additional District Sessions Judge, Erode, passed in C.A.No.68/2016 on 28.11.2016.

2. The petitioner faced prosecution for offence under Section 138 of the Negotiable Instruments Act in S.T.C.No.420/2014 on the file of the learned Judicial Magistrate, Fast Track Court No.I, Erode. The prosecution case was that the petitioner borrowed a sum of Rs.2,00,000/-(Rupees Two Lakhs only) from the respondent on 02.06.2014 to meet his urgent expenses, agreeing to repay the said amount. Towards discharge of the said debt, the petitioner issued a post dated cheque drawn on Axis Bank, Periyar Nagar, Erode Branch in a sum of Rs.2,00,000/- (Rupees Two Lakhs only). The complainant presented the cheque for collection on 16.06.2014 and upon the same having returned for the reason “Funds Insufficient“, followed the procedure under Section 138 of the Negotiable Instruments Act.

3. Before the trial Court, the respondent examined himself and marked 4 exhibits. One witness was examined on behalf of the defence and no exhibits were marked on the side of the petitioner.

4. The trial Court rendered a finding of conviction and sentenced the petitioner to undergo six months S.I and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) in default to suffer fifteen days S.I. Against the same, the petitioner moved an Appeal in C.A.No.68/2016, which came to be dismissed by the learned I-Additional District and Sessions Judge, Erode.

5. Heard, Mr.D.Balachandran, learned counsel for the petitioner and Mr.M.Guruprasad, 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 any 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 petitioner was unable to make payment in view of his poor financial condition and prayed for modification of sentence.

8.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 Hon-ble 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, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421 (1). This would, however, be without the necessity for recording any special reasons. This is because Section 421 (1) proviso contains the disjunctive “or” following the recommendation of the Law Commission, that the proviso to old Section 386 (1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commis