JUDGMENT : This appeal is at the instance of the complainant in C.C. No. 894 of 2005 on the file of Judicial First Class Magistrate Court, Kayamkulam, challenging acquittal of the accused under Section 138 of the Negotiable Instruments Act (for short, the NI Act), vide judgment dated 12.12.2006. 2. The case of the complainant is that, the accused borrowed Rs.2 lakh from him, and issued Ext.P1 cheque dated 10.10.2005, assuring that it would be honoured on presentation before the bank. But the cheque was returned dishonoured for the reason ‘insufficient funds’. Though lawyer notice was sent intimating dishonour of the cheque and demanding the cheque amount, the amount was not repaid. Since the complainant was working abroad, his brother filed the complaint on the strength of his power of attorney. 3. On taking cognizance, and on appearance of the accused before the trial court, particulars of offence were read over and explained, to which he pleaded not guilty, and claimed to be tried. Thereupon, PWs.1 and 2 were examined, and Exts.P1 to P8 were marked from the side of the complainant to prove his case. 4. On closure of the complainant’s evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and stated that a blank cheque given by him to the complainant for business purposes, was misused for filing this complaint. No defence evidence was adduced. 5. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court acquitted the accused finding that the power of attorney holder had no authority to present the cheque before the bank or to issue lawyer notice under Section 138(b) of the NI Act. Aggrieved by the acquittal of the accused, this appeal has been preferred by the power of attorney holder of the complainant. 6. Heard learned counsel for the appellant/complainant and learned State Brief for the 2nd respondent/accused. 7. Learned counsel for the appellant would contend that, there was clear admission from the part of the 2nd respondent/accused, in Ext.P7 reply notice that, he had borrowed Rs.2 lakh from the complainant on 05.04.2004, and he had admitted issuance of Ext.P1 cheque to the complainant. Even then the trial court acquitted the accused. 7. Learned counsel for the appellant would contend that, there was clear admission from the part of the 2nd respondent/accused, in Ext.P7 reply notice that, he had borrowed Rs.2 lakh from the complainant on 05.04.2004, and he had admitted issuance of Ext.P1 cheque to the complainant. Even then the trial court acquitted the accused. Since the complainant was abroad, Ext.P1 cheque was handed over by the accused to PW1 - the brother of the complainant, and he presented that cheque before bank, to be encashed through the account of the complainant. The complainant himself arranged a lawyer for sending notice to the accused, on dishonour of the cheque. So learned counsel for the appellant asserted that the trial court went wrong in acquitting the accused, finding that the power of attorney holder had no authority to present the cheque, or to send the lawyer notice. Hence the impugned judgment is liable to be set aside. 8. Ext.P7 reply notice sent by the accused clearly says that, he had borrowed Rs.2 lakh from the complainant on 05.04.2004, on a specific understanding that the said amount will be repaid on or before 05.04.2006. As a security for repayment of that amount, he had issued Ext.P1 cheque to the complainant without putting the date. It was further averred in that reply, that an agreement also was executed, agreeing the terms and conditions of repayment of the amount. But no such collateral documents were produced from the part of the accused, showing any such conditions for repayment. 9. The accused is admitting receipt of Rs.2 lakh from the complainant on 05.04.2004, and also issuance of Ext.P1 cheque in order to secure repayment of that amount. So, if at all it was issued without putting any date, when the repayment was defaulted, the complainant had every authority to fill up the date, and to present it before the bank. Otherwise, that cheque is nothing but a worthless paper. When amount is borrowed giving a blank cheque as security for repayment, on default of repayment, the holder of the cheque gets authority to fill it up and to present it before the bank. Otherwise, there is no purpose in receiving the cheque as a security for repayment. 10. The case of the complainant is that the accused borrowed Rs.2 lakh from him and when it was demanded back, he issued Ext.P1 cheque dated 10.10.2005. Otherwise, there is no purpose in receiving the cheque as a security for repayment. 10. The case of the complainant is that the accused borrowed Rs.2 lakh from him and when it was demanded back, he issued Ext.P1 cheque dated 10.10.2005. There is no evidence from the part of the accused, to show that there was an agreement to the effect that, the amount will be returned on or before 05.04.2006 only. In such situation, the case of the complainant is to be believed that, when the amount was demanded back, the accused issued Ext.P1 cheque dated 10.10.2005. 11. In Bir Singh v. Mukesh Kumar [2019 (1) KLT 598(SC)], Hon’ble Apex Court held that, even if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars, and this in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 12. This Court, in Moideen v. Johny ( 2006 KHC 1055 ), held that even if a blank cheque is issued as a security, the person in possession of the blank cheque, can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another, it gives an authority on the person, to whom it is issued, to fill it up, at the appropriate stage, with the necessary entries regarding the liability, and to present it to the bank. 13. In the case on hand, there is nothing to show that Ext.P1 cheque was issued by the accused under any threat or coercion and Ext.P7 reply notice clearly shows that, he voluntarily issued that cheque to the complainant. There is nothing to show that there was an understanding to the effect that, the amount would be repaid on or before 05.04.2006 only, so as to say that, presentation of the cheque before the bank in October 2005 was premature. 14. Now regarding the authority of PW1- the power of attorney holder for presenting the cheque before the bank, there is clear evidence from the part of PWs 1 and 2, that the accused handed over Ext.P1 cheque to PW1, who is the brother of the complainant, as the complainant was working abroad. 14. Now regarding the authority of PW1- the power of attorney holder for presenting the cheque before the bank, there is clear evidence from the part of PWs 1 and 2, that the accused handed over Ext.P1 cheque to PW1, who is the brother of the complainant, as the complainant was working abroad. That cheque was presented before the bank by PW1 and it was dishonoured. According to the accused, power of attorney in favour of PW1 was executed by the complainant, after dishonour of the cheque, and so PW1 had no authority to present that cheque before the bank, or to issue the lawyer notice. 15. For presenting the cheque before the bank of the payee, for encashment through his account, physical presence of the payee is not necessary. There is no provision in the NI Act which says that, only the payee can present the cheque before the bank. The Reserve Bank of India guidelines also do not prescribe any such restriction in presenting/depositing the cheque before the bank for encashment/collection. Even Kiosks for depositing cheques are seen installed in banks for depositing cheques, for convenient and efficient way of encashing cheques. These self service machines known as Cheque Deposit Machines (CDMs) allow users to deposit cheques at any time, without the assistance of bank staff. The bank may not and cannot verify who deposited that cheque, the payee himself or any other person, on his behalf. That itself will show that physical presence of the payee is not necessary for presenting/depositing a cheque before his bank for encashment/collection. 16. In the case on hand, brother of the complainant presented the cheque before the bank of the complainant for encashment, on his instructions, and not on the strength of any power of attorney. No illegality or impropriety could be attributed against PW1, for presenting/depositing the cheque before the bank of the complainant, for encashment through his account. Being the brother of the complainant, PW1 presented/deposited the cheque before the bank of the complainant, as he was away at his workplace. So the power of attorney executed later, by the complainant in favour of PW1, for filing the complaint, has nothing to do with the presentation/deposit of the cheque before the bank, and PW1 while presenting/depositing the cheque before the bank, was acting only as a representative of his brother. 17. So the power of attorney executed later, by the complainant in favour of PW1, for filing the complaint, has nothing to do with the presentation/deposit of the cheque before the bank, and PW1 while presenting/depositing the cheque before the bank, was acting only as a representative of his brother. 17. PW1 categorically deposed before court that, when Ext.P1 cheque was dishonoured for the reason insufficient funds, he himself arranged a lawyer for sending the statutory notice to the accused. Ext.P4 notice will not show that the said notice was issued under the instructions of the power of attorney holder. So it has to be held that the notice was issued under the instructions of the complainant himself. Ext.P8 power of attorney was executed on 28.11.2005, authorising PW1 to initiate legal action against the accused, with respect to Ext.P1 cheque. On the basis of Ext.P8 power of attorney, PW1 filed the complaint before court on 06.12.2005. So, PW1 had every authority to file the complaint, on the strength of Ext.P8 power of attorney, executed in his favour. Since there was no illegality or impropriety in presenting Ext.P1 cheque before bank by PW1, and since the statutory notice was issued on the instructions of the complainant, the trial court went wrong in acquitting the accused, and hence the impugned judgment is liable to be set aside. 18. There was clear admission from the part of the 2nd respondent / accused in Ext.P7 reply notice that he had borrowed Rs.2 lakh from the complainant, and issued Ext.P1 cheque, though according to him, no date was put in that cheque. He has no case that he ever re-paid that amount. When there was default from the part of the accused, to repay that amount, the complainant had every authority to fill up the date and to present the cheque before bank. Accused had no case that he issued the cheque under any threat or coercion from the part of the complainant. No evidence was there from the part of the accused, to show that there was an understanding or rather agreement, that the amount would be due only by 05.04.2006. The complainant sent lawyer notice to the accused on his own instructions. He executed Ext.P8 power of attorney in favour of his brother, for initiating legal action against the accused on the basis of Ext.P1 cheque. The complainant sent lawyer notice to the accused on his own instructions. He executed Ext.P8 power of attorney in favour of his brother, for initiating legal action against the accused on the basis of Ext.P1 cheque. So the complainant succeeded in proving an offence punishable under Section 138 of the NI Act against the accused, and hence he is found guilty and convicted thereunder. 19. Regarding the sentence, learned counsel for the 2nd respondent / accused pleaded for leniency as the transaction was in the year 2004. This is a case where the accused himself admitted his liability of Rs.2 lakh which he had borrowed from the complainant in the year 2004. He has no case that he repaid that amount to the complainant after receipt of lawyer's notice. He got an acquittal on mere technicalities. In the appeal, though notice was directly served on the 2nd respondent through District Police Chief Alappuzha, he opted to remain absent. Hence State Brief was appointed to defend his case in the appeal. So he is not deserving any leniency in the matter of sentence also. The appeal is of the year 2007. But it was taken up for hearing only in the year 2024 after a long gap of about 17 years. Undertaking the moral responsibility of this much of delay, this Court is not inclined to send the accused behind the bars after a long delay, of about 20 years of the transaction. But the compensatory aspect has to be given priority. 20. In Damodar S. Prabhu v. Sayed Babalal H. [2010 (2) KHC 428] , the Hon’ble Apex Court observed that it is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. 21. The Hon’ble Apex Court in Kaushalya Devi Massand v. Roopkishore Khore [2011 KHC 281] , held that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under S.138 of the Negotiable Instruments Act, 1881 , is almost in the nature of a civil wrong, which has been given criminal overtones. 22. An offence under S.138 of the Negotiable Instruments Act, 1881 , is almost in the nature of a civil wrong, which has been given criminal overtones. 22. Imbibing the spirit of these decisions, this Court is inclined to sentence the accused to simple imprisonment for one day till rising of court and to pay compensation of Rs.4 lakh. In default of payment of compensation, he has to undergo simple imprisonment for six months. 23. The 2nd respondent/ accused has to appear before the trial court on or before 17.03.2025 to receive the sentence and to pay the compensation amount to the appellant/complainant. If the appellant/complainant is absent on that day to receive the compensation amount, the 2nd respondent/accused can deposit the amount before the trial court. If he fails to appear before the trial court within the period as stipulated above, the trial court has to execute the sentence without further delay. 24. Registry to forward a copy of this judgment along with the trial court records to the trial court, to comply with the directions aforesaid without delay. Accordingly, the appeal stands allowed.