Imprisonment under Section 138 of the N.I. Act is not mandatory and can be mitigated based on circumstances surrounding the offence.

ORDER

The revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the N.I. Act, concurrently by the two inferior courts. Notice given, the second respondent/complainant has entered appearance through counsel.

2. When the revision came up for consideration, learned counsel for the petitioner/accused submitted that he has no arguments on merits against the conviction, but only over the sentence imposed with request for extension of time to pay the amount fixed as fine, thus avoid the default term of imprisonment.

3. The learned Magistrate, on conviction of the accused, has sentenced him to undergo simple imprisonment for four months and to pay a fine of `.1,50,000/- with default term of simple imprisonment for two months. The fine amount, if realised, was directed to be paid as compensation to the complainant. In appeal, affirming the conviction, learned Sessions Judge retained the sentence without any modification.

CRRP 1838/2011 2

4. Looking into the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no special circumstance in the case warranting imposing of a prison term as aforesaid against the petitioner/accused, the offender found guilty of the offence under Section 138 of the N.I. Act. Though the penal provision as under Section 138 of the N.I. Act has been incorporated in the Statute to give more sanctity to the commercial transaction by using cheques, it does not follow that the offender, found guilty of such offence, should necessarily suffer a prison term once he is found guilty and convicted of such offence. The dishonour of the cheque giving rise to the prosecution and ultimately leading to the conviction of the drawer, may very often arise for reasons beyond his contemplation at the time of making the instrument and handing it over. That also being taken into account, I am of the view that in the absence of exceptional circumstances warranting punishment by a prison term, for the offence under Section 138 of the N.I. Act, modulation of the sentence satisfying the ends of justice is warranted from the court. In that view of the matter, the sentence imposed against the accused is reduced to imprisonment for a day, till rising of the court, retaining the fine amount with the default term as concurrently ordered by the courts below. So far as the request made by the counsel for extension of time to pay off the fine amount and CRRP 1838/2011 3 thus avoid the default term of imprisonment, necessarily, it has to be looked into with reference to the date of the cheque. The cheque involved in the case is dated 17.7.2007. When that be so, no further extension of time can be granted to the accused. However, taking into account the submissions made by the learned counsel for the petitioner/accused highlighting the extenuating circumstances in favour of the accused, to seek for further extension of time, there will be a direction to the learned Magistrate to keep in abeyance the execution of the sentence for a period of two months from today. Petitioner is directed to appear before the Magistrate on 24.10.2011 to serve out the substantive term of imprisonment for a day, till rising of the court, and to report payment of the fine. In default of his appearance and non payment of the fine, learned Magistrate shall execute the sentence taking appropriate steps in accordance with law.

The revision is disposed of.

(S.S.Satheesachandran, Judge)

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