The court emphasized that conviction under Section 138 can be affirmed while modifying the severity of the punishment where no special circumstances justify a harsh penalty.

ORDER

Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently, by the two courts below. Sentence imposed against the accused, as modified by the sessions Judge in appeal, is imprisonment for one month, with direction to pay the compensation fixed, with default term.

2. The revision was admitted to file directing the petitioner to take steps for issuing notice to the respondent/complainant. Noticing that steps for service on the respondent has not be taken, by order dated 05-09-2002, petitioner was directed to cure defects within two weeks making it clear that if that order is not complied with the revision shall stand dismissed. Till date, steps have not been taken as directed, and notice not served on the complainant. When that be so, the revision challenging the conviction of the petitioner is only to be turned down. However, having regard to the submissions made by the counsel for the revision petitioner for modification of the substantive term of imprisonment urging that the offence with which he stands convicted under Section 138 of the NI Act as such does not warrant such a harsh punishment, I am inclined to modify the sentence imposed against the accused.

3. Going through the judgments rendered by the learned magistrate and also the learned sessions Judge, I find, no special circumstance has been made out to impose imprisonment of the petitioner for a term as fixed by the courts below for the offence under Section 138 of the NI Act. True, he has taken false defence to wriggle out of the offence imputed against him. But, that is not a ground to impose against him a prison term. In the circumstance, affirming the conviction, sentence imposed against the petitioner is modified to imprisonment till the rising of the court, retaining the compensation awarded, with default term and also the cost directed to be paid. Petitioner shall appear before the magistrate on 12-12- 2011 to serve out the imprisonment till the rising of the court, and to report payment of the compensation and the cost. The magistrate is directed to keep in abeyance the execution of sentence till the date fixed as above for his appearance, to enable him to pay the compensation and cost within such period. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law.

Revision is disposed of.