Judgment :- 1. The petitioner is the accused in C.C.No.657 of 2002 on the file of the learned Judicial Magistrate No.V, Vellore and the respondent is the complainant in the said case. It was a case instituted on a private complaint filed by the respondent alleging that the petitioner had committed an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate by judgment dated 17.06.2005, convicted the petitioner under Section 138 of the Act and sentenced her to undergo simple imprisonment for two years and to pay a sum of Rs.9,97,400/- as compensation to be paid by the petitioner to the respondent. 2. Challenging the said conviction and sentence, the petitioner preferred an appeal in C.A.No.92 of 2005 before the learned Principal Sessions Judge, Vellore. By judgment dated 23.11.2005, the learned Principal Sessions Judge dismissed the said appeal thereby confirming the conviction, sentence as well as the compensation awarded by the trial Court. Aggrieved over the same, the petitioner is before this Court with this revision. 3. The case of the respondent/complainant is as follows:- The respondent is a company. On six occasions, the petitioner borrowed a total sum of Rs.3,80,000/- from the respondent during the year 1997-1998 and executed a promissory note, thereby promising to repay the same with interest @26.40% per annum. When the respondent demanded the said amount as promised under the promissory note, the petitioner failed to pay the said amount in cash and instead, on 27.10.1999, she issued a cheque bearing No.364459 for a sum of Rs.4,48,700/-drawn on the Indian bank, Vellore Branch to the respondent. Thereafter, the respondent presented the said cheque in his account in Federal Bank, Vellore for realising the said amount. When the said cheque was forwarded by the Federal Bank to the Indian Bank, the Indian Bank declared that the said cheque was dishonoured on the ground that there was no sufficient funds available in the account of the petitioner. Thereafter, the respondent issued a legal notice on 09.11.1999 as required under Section 138 of the Act, demanding the petitioner to pay the amount due under the cheque. But the said notice could not be served because the petitioner evaded the same. Therefore, the said notice sent through Registered Post was returned on 12.11.1999 by the Postal Authorities. Thereafter, the respondent issued a legal notice on 09.11.1999 as required under Section 138 of the Act, demanding the petitioner to pay the amount due under the cheque. But the said notice could not be served because the petitioner evaded the same. Therefore, the said notice sent through Registered Post was returned on 12.11.1999 by the Postal Authorities. After expiry of the statutory period, the respondent preferred the above private complaint before the learned Judicial Magistrate No.IV, Vellore, alleging that the petitioner had committed offence punishable under Section 138 of the Act. 4. During the trial of the case, on the side of the respondent, he was examined as P.W.1 on 16.06.2000. As many as 7 documents, including the cheque in question, the legal notice etc., were marked in evidence. But the petitioner did not chose to cross examine P.W.1 on the date of examination. Therefore, the learned Judicial Magistrate recorded that there was no cross examination on the side of the petitioner. Thereafter, the Manager of the Federal Bank was examined as P.W.2 on 23.02.2001. The said witness has spoken to about the dishonour intimation given by him to the respondent. Subsequently, the Manager of the Indian Bank was examined as P.W.3 who has spoken to about the dishonour of the cheque. P.Ws.2 and 3 were also not cross examined by the petitioner on the date of examination. Thereafter, the learned Judicial Magistrate examined the petitioner as required under Section 313 Cr.P.C., on 15.06.2001 in respect of the incriminating materials against her, during which, the petitioner disputed the evidence of P.W.1. She explained that she had given the unfilled but, signed cheque slip to the respondent which came to be misused by the respondent by filling up the same according to his own whims and fancies. She also denied the execution of the promissory note as well as borrowal of money from the respondent. 5. When the case thus stood adjourned for hearing the arguments of both sides, the petitioner filed a Miscellaneous Petition in C.M.P.No.4311 of 2002 seeking to discharge her from the said case on the ground that there was no evidence against her. The said petition was pending for quite some time and though the same came up for hearing on several times, the matter was dragged on by the petitioner to some extent. The said petition was pending for quite some time and though the same came up for hearing on several times, the matter was dragged on by the petitioner to some extent. Finally, the learned Judicial Magistrate by a detailed order dated 04.01.2002 dismissed the said petition, thereby declining to discharge the petitioner from the said case. 6. After the above order, the petitioner filed another Miscellaneous Petition on 31.01.2002 seeking to recall P.Ws.1 to 3 for the purpose of cross examination. It was alleged in her petition that as against the earlier order in C.M.P.No.4311 of 2002, the petitioner had filed a revision before the learned Principal Sessions Judge in Criminal Revision Case No.4 of 2002. However, no stay was granted by the Revisional Court. The petitioner further stated that she could not cross examine P.Ws.1 to 3 for want of certain documents. Considering the said averment, on the same day, the learned Judicial Magistrate allowed the said petition and recalled P.Ws.1 to 3 for the purpose of cross examination. 7. Accordingly, on the next hearing date, namely on 18.02.2002, P.Ws.1 to 3 were present in Court. But instead of cross examining P.Ws.1 to 3, the petitioner filed yet another Miscellaneous Petition under Section 91 Cr.P.C., to summon P.W.1 to produce the constitution of the entity of Ashirvad Enterprises including its members and their addresses and to summon P.W.3, to produce the cheque issuance register relating to the cheque in question. The learned Judicial Magistrate recorded that P.Ws.1 to 3 were present in Court. Then he allowed the said Miscellaneous Petition and directed the said witnesses to produce the registers mentioned in the petition filed by the petitioner. Even thereafter, the petitioner declined to cross examine P.Ws.1 to 3. On that date, the matter was therefore adjourned to 22.02.2002. Thereafter, it appears that the petitioner filed a Transfer Petition in Transfer O.P.No.245 of 2002 before the learned Sessions Judge, Vellore making allegations against the learned Judicial Magistrate No.IV. In connection with the same, the original records were sent to the learned Sessions Judge by the trial Court. 8. In the mean while, the petitioner filed yet another Miscellaneous Petition before the learned Judicial Magistrate No.IV, Vellore in C.M.P.No.3496 of 2002 on 05.09.2002 under Section 91 Cr.P.C., to send for four more documents. That petition was pending for several hearings. The respondent herein, resisted the said petition. 8. In the mean while, the petitioner filed yet another Miscellaneous Petition before the learned Judicial Magistrate No.IV, Vellore in C.M.P.No.3496 of 2002 on 05.09.2002 under Section 91 Cr.P.C., to send for four more documents. That petition was pending for several hearings. The respondent herein, resisted the said petition. Though, it was yet another attempt on the part of the petitioner to drag on the proceedings, the learned Judicial Magistrate took a lenient view and by order dated 13.09.2002, allowed the said petition and sent for the documents. The learned Judicial Magistrate has further made an observation that “even after the said petition allowed, if the petitioner fails to cross examine P.W.1, it will be presumed that she is trying to prolong the proceedings”. 9. Thereafter, the learned Sessions Judge transferred the case of the petitioner to the file of the learned Judicial Magistrate No.V, Vellore by order dated 25.09.2002. Accordingly, the learned Judicial Magistrate No.IV, transmitted the case records to the file of the learned Judicial Magistrate No.V, Vellore on 26.09.2002. 10. Before the learned Judicial Magistrate No.V also, the petitioner did not chose to cross examine P.Ws.1 to P.W.3. Finally, after having considered the materials available on record, the learned Judicial Magistrate No.V, delivered judgment on 17.06.2005, thereby finding her guilty and imposing appropriate sentence and also ordering compensation. The same was confirmed by the Appellate Court. 11. In this revision, it is submitted by the learned counsel for the petitioner that sufficient opportunity was not given to the petitioner to cross examine P.W.1. Therefore, according to the learned counsel, the conviction and sentence imposed on the petitioner is against the doctrine of fair trial and therefore, the conviction, sentence and compensation imposed on the petitioner should be set aside and the matter should be remanded back to the learned Judicial Magistrate for fair trial with a direction to afford further opportunity to the petitioner to cross examine P.Ws.1 to 3 and to let in defence evidence. 12. The learned counsel for the respondent would submit that the petitioner has been very successful in dragging on the proceedings from the year 1999 onwards. 12. The learned counsel for the respondent would submit that the petitioner has been very successful in dragging on the proceedings from the year 1999 onwards. The learned counsel would point out that though several opportunities were given to the petitioner to cross examine P.Ws.1 to 3, she did not utilise the same and therefore, she is not entitled for cross examining P.W.1 by getting the matter remanded back to the trial Court. The learned counsel would further point out that there is sufficient evidence on record to show that the petitioner has committed the offence punishable under Section 138 of the Act. 13. 4.As I have narrated above, it is not the case where the petitioner was not afforded sufficient opportunity to cross examine P.W.1, but it is a case where the petitioner had failed to utilise the several opportunities given to her to cross examine P.W.1. The narration of events which, I have made above, would clearly go to show that the petitioner used one method or the other, by filing one petition or the other under one provision or the other to drag on the proceedings for so many years. 14. Though in pursuance of the recall order passed on the Miscellaneous Petition filed by her, P.Ws.1 to 3 were present, she did not chose to cross examine them. She filed petition after petition seeking for certain documents. She filed revision and ultimately, she also filed Petition for transfer of the case by making allegations on the learned Judicial Magistrate No.IV. Lower Court records show that P.W.1 was all along in Court for almost all hearings, but the petitioner did not chose to cross examine him. Of course fair trial is a fundamental right guaranteed under Article 21 of the Constitution of India, but in this case, it cannot be said that fair trial was not afforded to the petitioner. Under the guise of seeking fair trial, the petitioner cannot unduly prolong the proceedings for more than a decade. Actually, the petitioner has been very successful in dragging on the matter for more than a decade without cross examining P.W.1. The records would go to show that the petitioner has not co-operated with the trial Court to do justice. She has wantonly omitted to utilise the opportunity given to her as a part of fair trial afforded by the trial Court. The records would go to show that the petitioner has not co-operated with the trial Court to do justice. She has wantonly omitted to utilise the opportunity given to her as a part of fair trial afforded by the trial Court. Therefore, it is too late in the day for the petitioner to say that she was not afforded opportunity to cross examine P.W.1. Thus, the foremost contention of the learned counsel for the petitioner that sufficient opportunity was not afforded to the petitioner to cross examine P.W.1, deserves only to be rejected. 15. Now, coming to the evidence available on record, there is no denial that the signature found in the cheque was made by the petitioner. In the explanation offered under Section 313 Cr.P.C., she has only stated that she gave only a blank but signed cheque to the respondent. She has not explained as to what was the occasion under which she was forced to give such a blank signed cheque to the respondent. In the absence of such an explanation, it is too difficult to believe that the petitioner gave only a blank cheque signed by her. Therefore, I hold that the cheque was issued only by the petitioner which had been duly filled up by her. 16. Now, coming to the legally enforceable liability on the part of the petitioner, though, it is stated by the respondent that the promissory note was executed by the petitioner, the same was not produced. But that is immaterial in this case because, the original transaction of extending loan to the petitioner by the respondent has been proved by the oral evidence of P.W.1. Only in the statement made under Section 313 Cr.P.C., the petitioner has denied the fact that she borrowed money from the respondent. Such a mere denial which is belated, indicating afterthought cannot go to the rescue of the petitioner at all so as to make the defence as true. 17. Yet another fact is that the statutory notice under Section 138 of the Act issued by the respondent was returned by the Postal Authorities as un-served since the petitioner evaded the same. The petitioner has not denied the same. It is not known as to why she has not explained as to why she did not receive the said notice. Yet another fact is that the statutory notice under Section 138 of the Act issued by the respondent was returned by the Postal Authorities as un-served since the petitioner evaded the same. The petitioner has not denied the same. It is not known as to why she has not explained as to why she did not receive the said notice. This, itself, would go to show that the petitioner is not straight forward in the transaction in question. Thus, from the evidence of P.Ws.1 to 3 coupled with the documentary evidences, the Courts below have correctly come to the conclusion that the petitioner has committed offence under Section 138 of the Act, which does not require any interference at the hands of this Court at all. 18. Now coming to the quantum of punishment, the learned counsel for the petitioner would submit that during the pendency of this case, the petitioner has made the following payments to the respondent:- Thus, a total sum of Rs.1,73,700/- has been paid by the petitioner to the respondent. 19. Apart from that, a sum of Rs.2,50,000/- has been deposited before the trial Court by the petitioner on 06.01.2006. Thus, a total sum of Rs.4,23,700/- has been paid by the petitioner to the respondent. The said payment is admitted by the learned counsel for the respondent. Thus, the balance amount to be paid by the petitioner to the respondent towards the cheque amount is only Rs.25,000/-. Therefore, referring to the said payments made, the learned counsel for the petitioner would pray for setting aside the sentence imposed on the petitioner. In support of his contention, he would rely on the following judgments:- “(i)Narsingh Das Tapadia v. Goverdhan Das Partani ( 2000 (7) SCC 183 ) and (ii) Basavarajv. Dhanalaxmi Finance Company (R)Terdal, ( 2010(1) SCC 602 ).” 20. But the learned counsel for the respondent would vehemently oppose the said plea of the petitioner. According to him, the litigation has been pending from the year 1999. Having dragged on the same for more than a decade, the petitioner is not entitled for any leniency in the matter of sentence, he contended. The learned counsel for the respondent would rely on a judgment of the Hon'ble Supreme Court in R.Vijayanv. Baby and Anr. According to him, the litigation has been pending from the year 1999. Having dragged on the same for more than a decade, the petitioner is not entitled for any leniency in the matter of sentence, he contended. The learned counsel for the respondent would rely on a judgment of the Hon'ble Supreme Court in R.Vijayanv. Baby and Anr. ( 2012 (1) SCC 260 ) and another judgment in KausalyaDevi Massand v. Roopkishore Khore ( 2011 (4) SCC 593 ), in support of his contentions. 21. In KausalyaDevi Massand v. Roopkishore Khore’s case (cited supra), in paragraph No.11, the Hon'ble Supreme Court has held that the “gravity of an offence under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.” In view of the above observations, in my considered view, the vigour of sentence which is expected of to be imposed in respect of the other offences cannot be imposed for an offence under Section 138 of the Act. 22. Now I may refer to R.Vijayanv. Baby and Anr case (cited supra) upon which, the learned counsel for the respondent places much reliance. In that case, the Hon'ble Supreme Court has held that there is no uniformity among various Courts in the matter of granting compensation in respect of the offence under Section 138 of the Act. The Hon'ble Supreme Court has further held that “inconsistency though perfectly acceptable in the eye of law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of Courts. Citizens will not be able to arrange or regulate their affairs in a proper manner as they will not know whether they should simultaneously file a civil suit or not.” Having regard to the said position, the Hon'ble Supreme Court has finally held as follows:- “While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency, with other courts dealing with similar cases.” 23. Thereafter, the Hon'ble Supreme Court proceeds to bring to the notice of the Law Commission of India for consideration, the following:- “18.One other solution is a further amendment to the provision of Chapter XVII so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the Act, which is to increase the credibility of the instrument.” 24. The learned counsel for the respondent would submit that as per the above observation of the Hon'ble Supreme Court, atleast interest @ 9% per annum should be calculated and imposed as compensation to be paid by the petitioner to the respondent. 25. But, the learned counsel for the petitioner would submit that the above observation of the Hon'ble Supreme Court is only recommendatory in nature for the Law Commission of India to consider and it is not a law laid down. I find force in the said submission of the learned counsel for the petitioner. In my considered opinion too, the above observations of the Hon'ble Supreme Court do not lay down any law binding on this Court. If the recommendations of the Hon'ble Supreme Court for fixing an interest @9% per annum is accepted by the Parliament and the Negotiable Instruments Act, is so amended, it will be binding on the Court. Until then, the question of granting interest @ 9% per annum for the cheque amount by way of compensation cannot be resorted to invariably in all cases. 26. Now, let us refer to the judgment of the Hon'ble Supreme Court in NarsinghDas Tapadia v. Goverdhan Das Partani ( 2000 (7) SCC 183 ). That was a case where for an offence under Section 138 of the Act, the trial Court had imposed punishment of simple imprisonment for 6 months. The cheque amount was Rs.2,30,000/-. During the pendency of the case, the accused had paid a sum of Rs.3,94,243.33/- which includes the cheque amount and the interest payable thereon. That was a case where for an offence under Section 138 of the Act, the trial Court had imposed punishment of simple imprisonment for 6 months. The cheque amount was Rs.2,30,000/-. During the pendency of the case, the accused had paid a sum of Rs.3,94,243.33/- which includes the cheque amount and the interest payable thereon. On considering the above factual aspects, while deciding the quantum of punishment, the Hon'ble Supreme Court has held as follows:- “14. So far as awarding of sentence is concerned, we are inclined to take a lenient view in the light of the subsequent developments in the case. The respondent has filed an affidavit on 24.08.2000 submitting that the appellant has been paid a sum of Rs.3,94,243.33 which includes the cheque amount and the interest payable thereon. In support of his submission he has filed Annexures R-1 and R-2 along with the affidavit. Learned counsel for the appellant has admitted the payment of the amount. Thus, we feel that no useful purpose would be served by sending the respondent back to jail as the interests of justice would be served by imposing a penalty of fine along in the circumstances adverted to above. Accordingly, upon conviction under Section 138 of the Act, the sentence of imprisonment awarded to the respondent in substituted with the imposition of fine of Rs.5,000 to be deposited within two months. In case the amount of fine is not deposited within the time stipulated, the respondent shall suffer imprisonment of three months in default thereon.” 27. Similarly, in Basavarajv. Dhanalaxmi Finance Company (R)Terdal, ( 2010(1) SCC 602 ) also, the Hon'ble Supreme Court has held as follows:- “5.Upon consideration of the entire matter we are of the considered opinion that in the facts and circumstances of this case, ends of justice would be served by suitably reducing the sentence. The appellant has been facing criminal prosecution for the last 7 years. He is a petty businessman. He has paid the hefty amount of compensation as a penalty for dishonour of the cheque issued by him. No material has been placed on the record to indicate that the appellant had earlier committed any such or similar offence. 6. In view of the foregoing, the conviction under Section 138 of the Act is maintained. The substantive sentence of imprisonment is set aside. No material has been placed on the record to indicate that the appellant had earlier committed any such or similar offence. 6. In view of the foregoing, the conviction under Section 138 of the Act is maintained. The substantive sentence of imprisonment is set aside. However, the sentence of a fine of Rs.1,000/- is maintained and imposition of compensation in the sum of Rs.35,000 is also maintained. The order of the trial Court confirmed by the Fast Track Court is modified to that extent.” 28. Keeping in mind that an offence under Section 138 of the Act, cannot be equated to any other offence under any other criminal law, and having regard to the views expressed by the Hon'ble Supreme Court on the mitigating factors, if we look into the facts of the present case, though the litigation has been pending for more than a decade, the petitioner has paid a sum of Rs.4,23,700/- to the respondent. As I have stated earlier, only Rs.25,000/- has to be paid by the petitioner towards the balance of the cheque amount to the respondent. Apart from that, some reasonable amount should be paid by the petitioner to the respondent towards interest by way of compensation. But at the same time, interest @9% per annum cannot be granted as it is submitted by the learned counsel for the respondent. In my considered opinion, apart from the amount which has already been paid by the petitioner including the amount deposited, if the petitioner is directed to pay a sum of Rs.1,50,000/- as compensation to the respondent, it will meet the ends of justice. The total compensation comes to Rs.5,73,700/-. As I have already stated, a sum of Rs.1,73,700/- has been paid by the petitioner during the pendency of this case and a sum of Rs.2,50,000/- has been deposited by the petitioner before the trial Court in connection with this case. Therefore, the respondent will be at liberty to withdraw the said amount of Rs.2,50,000/-with accrued interest from the trial Court. The petitioner shall pay the remaining amount of Rs.1,50,000/- to the respondent within a period of six weeks from today. If the said amount is not paid within the stipulated time, the petitioner shall undergo simple imprisonment for two months. The substantive sentence of imprisonment imposed by the trial Court needs to be set aside. 29. The petitioner shall pay the remaining amount of Rs.1,50,000/- to the respondent within a period of six weeks from today. If the said amount is not paid within the stipulated time, the petitioner shall undergo simple imprisonment for two months. The substantive sentence of imprisonment imposed by the trial Court needs to be set aside. 29. In the result, the Criminal Revision Case is allowed in part in the following terms:- (i)The conviction of the petitioner under Section 138 of the Act imposed by the learned Judicial Magistrate No.V, Vellore and confirmed by the learned Principal Sessions Judge, Vellore is confirmed; (ii)The sentence of imprisonment imposed by the Courts below is set aside; (iii)The petitioner is ordered to pay compensation to the respondent to the tune of Rs.5,73,700/-. Since the petitioner has already paid a sum of Rs.4,23,700/- including the amount deposited before the trial Court, she shall pay the balance of Rs.1,50,000/-within a period of six weeks from today and if she fails to pay the same, within the time stipulated, she shall under go simple imprisonment for two months; (iv)The respondent shall be entitled to withdraw Rs.2,50,000/- which has been deposited by the petitioner before the trial Court with accrued interest and the trial Court shall pay the said amount to the respondent which does not require any notice to the petitioner. (v)The bail bond, if any executed by the petitioner shall stand discharged.