RECENT TRENDS IN SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT

Negotiable Instruments have been used in commercial world for a long period of
time as one of the convenient modes for transferring money. Development in
Banking sector and with the opening of new branches, cheque becomes one of the
favourite Negotiable Instruments. When cheques were issued as a Negotiable
Instruments, there was always possibility of the same being issued without
sufficient amount in the account. With a view to protect drawee of the cheque
need was felt that dishonour of cheque he made punishable offence. With that
purpose Sec.138 to 142 are inserted by Banking Public Financial Institutions and
Negotiable Instruments clause (Amendment) Act, 1988. This was done by making
the drawer liable for penalties in case of bouncing of the cheque due to
insufficiency of funds with adequate safeguards to prevent harassment of the
honest drawer.
The object of this amendment Act is:
1. To regulate the growing business, trade, commerce and Industrial activities.
2. To promote greater vigilance in financial matters.
3. To safeguard the faith of creditors in drawer of cheque. (Krishna vs.
Dattatraya 2008(4) Mh.L.J.354 (Supreme Court)

However, it was found that punishment provided was inadequate, the procedure
prescribed cumbersome and the courts were unable to dispose of the cases
expeditiously and in time bound manner. Hence, the Negotiable Instruments
(Amendment and Miscellaneous provisions Act 2002) was passed. The provisions of
Section 143 to 147 were incorporated and provisions of section 148, 141, 142 were
amended.

The ingredients of the offence as contemplated under Sec.138 of the Act are as
under:

1. The cheque must have been drawn for discharge of existing debt or liability.
2. Cheque must be presented within 6 months or within validity period
whichever is earlier.
3. Cheque must be returned unpaid due to insufficient funds or it exceeds the
amount arranged.
4. Fact of dishonour be informed to the drawer by notice within 30 days.
5. Drawer of cheque must fail to make payment within 15 days of receipt of
the notice.
A mere presentation of delivery of cheque by the accused would not amount to
acceptance of any debt or liability. Complainant has to show that cheque was
issued for any existing debt or liability. Thus, if cheque is issued by way of gift and
it gets dishonoured offence u/s. 138 of the will not be attracted.

There are presumptions under Section 118 and 139 of the Negotiable Instruments
Act in favour of holder of the cheque. Until contrary is proved, presumption is in
favour of holder of cheque that it was drawn for discharge of debt or liabilities.
However, it is rebuttable one and accused can rebut it without entering into
witness box, through cross examination of the prosecution witnesses. Complainant
is not absolved from liability to show that cheque was issued for legally
enforceable debt or liability. Burden on accused in such case would not be as light
as it is in the cases under sec.114 of the Evidence Act. In case of Goa Plast Pvt.
Ltd. vs. Shri Chico Ursula D' Souza, 1996 (4) All MR 40, relations between accused
and complainant were of employee and employer. No evidence led to show that
accused was liable to pay any due or part thereof and thus liability was not
proved. Similarly, it was not proved that the cheque was given towards those
liabilities. Accused much earlier to presentation of cheques to the Bank had
apprised the complainant that he is not liable to pay any amount, and therefore,
stopped payment. The Hon'ble Bombay High Court had observed that complainant
failed to prove that the cheque was issued for discharge of legal liabilities.

Section 139 of the Act merely raises a presumption in regard to the second aspect
of the matter. Existence of legally recoverable debt is not a matter of presumption
u/s 139. It merely raises a presumption in favour of holder of the cheque that the
same has been issued for discharge of any debt or other liability.

Many times cheques are issued bearing no date or post-dated cheques. The holder
of the cheque enters the date, and thereafter, cheques are presented. The Hon'ble
Bombay High Court in case of Purushottamdas Gandhi vs. Manohar Deshmukh, 2007
(1) Mh.L.J. 210, observed that inserting such date does not amount to tampering or
alteration but by delivery of such undated cheque the drawer authorizes the
holder to insert date and the period of 6 months for presentation of such cheque
to the Bank would start from the date which bears on the cheque. (Ashok Badwe
vs. Surendra Nighojkar A.I.R. 2001, S.C. 1315)

The return of cheque is itself an indication that funds are not forthcoming. The
words “refer to drawer” or “account closed” are covered under the term
“insufficient funds”. Thus, the liability of the drawer cannot be avoided if he
closes the account and cheque is dishonoured. A safeguard has been made to
prevent hasty action is that the payee or holder in due course of the cheque shall
make a demand for payment of amount covered by the cheque by giving notice in
writing to the drawer within 30 days.

Offence u/s. 138 is computed only when payment is not made by drawer on expiry
of 15 days after service of the notice as prescribed by proviso (c) of Sec. 138.

Jurisdiction

Considering the ingredients of sec.138 referred above the Hon'ble Apex Court in
case of K. Bhaskaran vs. Shankaran, AIR 1999, SC 3762, had given jurisdiction to
initiate the prosecution at any of the following places.

1. Where cheque is drawn.

2. Where payment had to be made.
 3. Where cheque is presented for payment
4. Where cheque is dishonoured.
5. Where notice is served up to drawer.

However, recently in case of Dashrath Rupsingh Rathod vs. State of Maharashtra,

MANU /SC/ 0655/ 2014, interpreted various provisions of Sec.138 of Negotiable
Instruments Act and held,
i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is
committed no sooner a cheque drawn by the accused on an account
being maintained by him in a bank for discharge of debt/liability is
returned unpaid for insufficiency of funds or for the reason that the
amount exceeds the arrangement made with the bank.
ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or
holder of the cheque in due course within a period of one month from
the date the cause of action accrues to such payee or holder under
clause (c) of proviso to Section 138.
iii) The cause of action to file a complaint accrues to a complainant /payee/
holder of a cheque in due course if,
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque amount
within thirty days of receipt of information by him from the bank
regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amount within fifteen
days of receipt of such notice.
iv) The facts constituting cause of action do not constitute the ingredients
of the offence under Section 138 of the Act.
v) The proviso to Section 138 simply postpones/ defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
vi) Once the cause of action accrues to the complainant, the jurisdiction of
the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
vii) The general rule stipulated under Section 177 of Cr.P.C. applies to cases
under Section 138 of the Negotiable Instruments Act. Prosecution in such
cases can, therefore, be launched against the drawer of the cheque only
before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
 184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.

NOTICE

Notice must be in writing informing that cheque is returned unpaid also a demand
of cheque amount must be made and it should be within 30 days from receipt of
information of dishonour. When notice by registered post returned unclaimed
there is presumption of service.

1. Rahul vs. Arihant Fertilizers 2008(4) Mh.L.J. 365 (SC)

2. K. Bhaskaran vs. Shankaran Vidhyabalan 1999 AIR SCW, 3809.

Initially, it was held by various High Courts and Apex court that cheque may be
presented severally within period of its validity or within 6 months. However, once
notice is served and amount is not paid within stipulated period, the cause of
action to prosecute starts. Thereafter the complaint is to be filed within period of
30 days. However, in case of MSR Leathers vs. Palaniappan and others, 2013,
Cr.L.J. S.C. 1112. The Apex court held that failure to prosecute on basis of first
default in payment does not result in forfeiture of right of holder/ payee to
prosecute. Nothing in the N.I. Act that prohibits holder / payee of cheque from
issuing fresh demand notice and then launching prosecution. Limitation of one
month from accrual of cause of action for taking cognizance u/s. 142 does not
militate against accrual of successive cause of action.

The payee is not prevented from combing the causes of action by covering multiple
instances of dishonour of cheques in single notice; in such a case all the
transactions covered by notice would be regarded as a single transaction
permitting a single trial. However, in a case where cheques were issued on
different dates, presented on different dates and separate notices are issued in
respect of each default. The transactions cannot be held to be a single
transaction. Section 219 of Cr.P.C. will not be attracted to such cases. Rajendra
Vs. State of Maharashtra, 2007, (1) Mh L.J. 370.

The apex court in case of K. Bhaskaran vs. Shankaran, 2000 (1) Mh.L.J. 193,
observed that giving notice is not the same as receipt of notice. Giving is a process
of which receipt is accomplishment. It is for the payee to perform formal process
by sending notice to the drawer at correct address...... the payee can send notice
for doing his part of giving the notice. Once it is dispatched, his part is over and
next depends on what sendee does. It is well settled that notice refused to be
accepted by addressee can be presumed to have been served on him. Where notice
is returned as unclaimed and not as a refused, it can be deemed to have been
served on sendee unless he proves that it was not really served and that he was
not really responsible for such no service.
The Hon'ble Supreme Court in case of Saket India Ltd. vs. India Securities Ltd. AIR
1999, SC 1090, held that the period of one month is to be reckoned according to
British Calender as defined in the General Clauses Act and the date on which cause
of action arose must be excluded for this purpose. When neither postal
acknowledgement nor postal cover is received back by payee the presumption is
that notice is served. (Central Bank of India vs. Saxena Pharma, AIR 1999 SC 3607.)

WHO CAN FILE COMPLAINT

Payee or holder in due course is a competent person to file complaint. Complaint

must by corporal person capable of making physical appearance in the court. In
case of company and firm natural person should represent it. Complaint can be
filed by Power of Attorney Holder. It is not requirement that the person whose
statement was taken on oath at the first instance should alone represent the
company till the proceeding has ended. Even if the person sent earlier had no
authority, the company can at subsequent stage send a person competent to
represent the company. (Associated Cement Company Ltd. vs. Keshavanand (1998)
91 company cases 3619 SC.)

It is further observed in the above case that a complaint which is made in the
name and behalf of company can be made by any officer of that company and that
the section does not require that complaint must be signed and presented only by
authorized agent or a person empowered under the Articles of association or by
any resolution of the Board of Directors.

LIABILITY OF DIRECTORS / PARTNERS

Section 141 of Negotiable Instruments Act shows that person who is in charge or
responsible to the company is ipso facto liable and deemed to be guilty. Only if
offence is committed with his consent connivance or due to any neglect on his
part. Similar is the case with any Director, Manager, Secretary or other officer of
the company. If such person shows that offence was committed without his
knowledge or that he had exercised on due diligence to prevent the commission of
such offence, he may be immune from prosecution. Similarly, Directors nominated
by Central Government or State Government by virtue of their holding any office
or employment in such Government or Financial Corporation owned or controlled
by such Government are kept outside the purview of such section.

It is primary duty of the Magistrate to find out whether the complainant has shown
that accused persons falls into one of the categories of persons envisaged in sec.
141. What is required is the specific accusation against each Director of the role
played by him. Onus is on the complainant to make out prima facie case i.e. to
show that accused was at the time of commission of the offence, in charge of and
responsible to the company. Such person need not be a Director, Manager,
Secretary or other officer of the company. In case of A.K. Singhania vs. Gujrat
State Fertilizers Company Ltd. 2014, Cr.L.J. 340 (SC). The apex court further
observed that it is not necessary that complaint should contain averments as to
who were in charge and responsible for conduct of the business of company. Court
held that it is sufficient if reading of complaint shows substance of accusation
disclosing necessary averments.

In case of K. Shrikant Singh vs. North East Security Ltd. and others, J.T. 2007 (9)
SC 449. The Hon'ble Apex court observed that vicarious liability on the part of a
person must be pleaded and proved and not inferred.

In case of Aparna A. Shaha vs. Sheth Developers Pvt. Ltd. 2014 (1) Mh L.J. The
apex court took a view that Joint Account holder cannot be prosecuted unless
cheque is signed by each and every person who is Joint Account holder. In this case
the cheque was signed by husband of the appellant. The apex court quashed the
proceeding against the appellant. Court observed that as a natural corollary each
and every joint account holder must sign the cheque before they are considered
for criminal action under sec. 138 of the N.I. Act.

In case of “ Shushatna J. Sarkar & other v State of Maharashtra 2014(1) MhLJ 214 ”
complaint was not showing as to what role played by petitioner Directors in the
alleged offence. The allegations were vague and were not specifying role of each
of the petitioners. It was observed that averments in complaint were not sufficient
enough to make them vicariously liable for offence u/s 138. It was further
observed that ' It is necessary for the complainant to make specific averments
disclosing role of Directors in the alleged offence. Criminal offence, Criminal
liability can be fastened only on those who at the time of commission of offence
were in charge of and were responsible for conduct of business of company....... It
is obligatory on the part of complainant to state in brief as to how and in what
manner the directors, who are sought to be made accused be responsible for the
conduct of business of company at relevant time.

Earlier it was observed that prosecution of the company is not sine qua non for the
prosecution of the either persons who are in charge of and responsible for the
business of company or any Director, Manager, Secretary or other officers of
company. However, finding that offence was committed by company is sine qua
non for convicting those other persons (Anil Hada vs. Indian Acrylic Ltd. (2002) of
1999 Comp. Cases 36 (SC). However, recently in case of Anil Gupta vs. Star India
Pvt. Ltd. Co. & another 2014 Cr.L.J.3884 the Hon'ble Supreme Court laid down that
only drawer of cheque falls within ambit of sec.138 of the Act whether human
being or a body corporate or even a firm ..... The Hon'ble Apex court further
observed that “we arrived at the irresistable conclusion that for maintain the
prosecution u/s 141 of the Act, arraigning of the company as a accused is to
imperative”. The Hon'ble Apex court overruled the decision in Anil Khada's case
referred above.
Cause of action arises when notice is served on the drawer and drawer fails to
make payment of the amount of cheque within 15 days. Limitation to file
complaint is one month from the date of cause of action. However, by Amendment
Act of 2002 court is empowered to take cognizance of the offence even if
complaint is filed beyond one month by condoning the delay if sufficient cause is
shown.

It has been held in various other cases that offence is not made out

1. When cheque returned as defective one (Babulal vs. Khilji 1998 (3) Mh L.J.
762 )
2. When no notice is given to company and cheque is drawn by company ( P.
Raja Rathinalm vs. State of Maharashtra 1999 (1) Mh.L.J. 815)
3. Cheque is given as a gift.
4. Complainant was not a payee.
5. Signature of drawer on the cheque is incomplete. (Vinod vs. Jahir 2003 (1)
Mh L.J. 456.)

PUNISHMENT

After the amendment of 2002 the imprisonment that may be imposed may extend
to two years, while fine may extend to twice the amount of cheque. However, the
trial is conducted in summary way, then Magistrate can pass sentence of
imprisonment not exceeding one year and amount of fine exceeding Rs.5,000/.
There is no limitation for awarding compensation.

The sentence should be such that it gives proper effect to the object of the
legislation. No drawer can be allowed to take advantage of cheque issued by him
lightly. Apex court has cautioned against imposing flee bite sentences. In case of
Sujanti Suresh Kumar vs. Jagdeeshan 2002 Cr.L.J. 1003 Prior to the amendment of
2002 a sentence of fine in excess of Rs.5,000/by Judicial Magistrate, First Class or
Metropolitan Magistrate was held to be illegal. However, after the amendment the
Magistrate are empowered to impose fine exceeding Rs.5,000/. In case of Dilip vs.
Kotak Mahindra Company Ltd. 2008 (1) Mh L.J. 22 it was enunciated that the
amount of compensation sought to be imposed must be reasonable and not
arbitrary. Before issuing a direction to pay compensation the capacity of the
accused to pay the same must be judged. An inquiry in this behalf even in
summary way may be necessary. Sub section 3 of Sec. 357 does not impose any
limitation but the powers thereunder should be exercised only in appropriate
cases. Ordinarily it should be lesser than the amount which can be granted by Civil
Court upon appreciation of evidence. A criminal case is not a substitution for civil
suit.
PROCEDURE

Section 142 of the N. I. Act creates bar against taking cognizance of the offence
u/s. 138 of the N. I. Act except upon complaint in writing by payee or holder in
due course. Complaint may be instituted by Power of Attorney Holder. However, if
the holder of the Power of Attorney has merely lodged the complaint without
being aware of the facts, then recording the statement of the payee becomes
imperative.

Once Magistrate is satisfied that there is proper compliance of the proviso to

Sec.138 N. I. Act and jurisdictional conditions are fulfilled, Magistrate shall issue
the process. Service of summons by speed post or approved courier is recognized
by Sec. 144 of N. I. Act. If the accused does not appear in response to the
summons or remain absent subsequent, a coercive process needs to be taken by
the court. In case of Bhaskar Industries Ltd. vs. M/s Bhiwani – Denim and Apparens
Ltd. 2001 All M.R. (Criminal) 1961 ). The advocate who appeared in absence of
accused was allowed to plea on behalf of accused.

Section 145 (1) of the Act permits the recording of evidence of complainant on
affidavit. Even evidence of accused and witnesses can be recorded on affidavit.
This was for expedite disposal of the cases. The bank slips are held as a primary
evidence and admissible directly.

The accused are given effective opportunity to defend the case. Considering
presumptions under sec.118 and 139 of the N.I. Act effective opportunity is to be
given to the accused to cross examine the witnesses.

It is common experience that in cases u/s 138 of N.I. Act evidence is recorded by
one Judicial Officer and before delivery of Judgment he is transferred, in such
situation the successor has to proceed with denovo trial. However, in case of
Mehsana Nagarik Sahakari Bank Ltd. vs. Shreeji CAB company ltd. and others 2014
Cr.L.J. 1953. The apex court held that if evidence is recorded in full and not in
summary manner, then evidence recorded by predecessor can be acted upon.

Though the provision contained in Sec.143 of the N. I. Act provides that cases
u/s.138 is to be tried in summary way, they should be tried as a regular summons
cases. If it appears to the Magistrate that nature of case is such that sentence of
imprisonment for a term exceeding one year may have to be passed, or that it is
for any other reasons undesirable to try the case summarily, Magistrate shall after
hearing the parties record and order to that effect and try the case as a regular
summons case.

Recently in case of Indian Bank Association and others vs. Union of India & others
reported in AIR 2014 Supreme Court 2528, general directions have been given by
the Apex court. The directions are worth quoting and they are as under:
 1. Metropolitan Magistrate/ Judicial Magistrate (MM/JM), on the day when the
complaint under Section 138 of the Act is presented, shall scrutinize the
complaint and, if the complaint is accompanied by the affidavit, and the
affidavit and the documents, if any, are found to be in order, take
cognizance and direct issuance of summons.
2. MM/JM should adopt a pragmatic and realistic approach while issuing
summons. Summons must be properly addressed and sent by post as well as
by email address got from the complainant. Court in appropriate cases, may
take the assistance of the police or the nearby court to serve notice to the
accused. For notice of appearance, a short date be fixed. If the summons is
received back unserved, immediate follow up action be taken.
3. Court may indicate in the summons that if the accused makes an application
for compounding of offences at the first hearing of the case and, if such an
application is made, Court may pass appropriate orders at the earliest.
4. Court should direct the accused, when he appears to furnish a bail bond, the
ensure his appearance during trial and ask him to take notice under Section
251, Cr.P.C. to enable him to enter his plea of defence evidence, unless an
application is made by the accused under Section 145(2) for recalling a
witness for cross examination.
5. The court concerned must ensure that examination-in-chief, cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The court has option of accepting
affidavits of the witnesses, instead of examining them in Court. Witnesses to
the complainant and accused must be available for cross-examination as and
when there is direction to this effect by the Court.

Some important principles laid down by the Hon'ble High Courts and Apex Court
are as under:

1. Cheque to pay time barred debt is enforceable by virtue of section 25 (3) of

Contract Act, ( Kadir vs. Dattatraya 2005 (3) Mh L.J. 1076 )
2. Legal heirs of complainant can continue the complaint (Revi Selval vs. Navin
2000 (2) Bombay Cri. Cases, 23.)
3. However, legal representatives of accused cannot be made to face trial.
(Smt. Dropadi @ Maya Shippi vs. State of Rajasthan 2000(3) Crimes 6045.)
4. Part payment made does not absolve to the drawer from liability (
Ramnarayan Madanlal Khandelwar vs. Proprietor Daulat Enterprise, 2005 (4)
Mh L.J. 796)
5. Cheque issued as a security are in discharge of liability as a guarantor
attracts Sec. 138 (ICBS Ltd. vs. Beena Shabeer 2002 AIR SCW 3358)
6. “Any liability does not include any other's liability unless there is agreement
between drawer and original debtor ( Hinten Sagar and another vs. IMC Ltd.
And another 2001 (3) Mh L.J. 659)”
 7. Demanding cheque amount interest, damages, separately in the notice
would not invalidate the notice (Suman Shetty vs. Ajay A. Chudiwal AIR 2000
(SC) 828.)
8. A single complaint in respect of dishonoured cheques is maintainable though
consolidated single notice is sent and single complaint is maintainable.
(Charashni Kumar Talwani vs. M/s. Malhotra Poultries 2014 Cr.L.J. 2908)

IMPORTANT CASE LAWS ON SECTION 138 OF THE ACT:

1. In Krishan Lal More and another vs. M/s Bibby Financial Services India Pvt.
Ltd. And another, 2016(2) RCR (Criminal) 603 (P&H) it was held by the
Hon'ble High Court that the provision of Section 202 Criminal Procedure
Code are not applicable to the complaints filed under Section 138 of the
Negotiable Instrument Act.
2. In Ashok Kumar vs. Jagdish Ram alias Jagdish Rai, 2016(2) RCR (Criminal)
281 (P&H) it was held by the Hon'ble High Court that in case of acquittal of
accused in cheque dishonour case by trial Magistrate, appeal against
acquittal is not maintainable before Sessions Court. Complainant can
approach High Court seeking leave to appeal.
3. In Rajan Singhal vs. State of U.T. Chandigarh and Ors., 2015(4) RCR
(Criminal) 809 (P&H) it was held by the Hon'ble High Court that when
accused issues a cheque drawn on an account which is already closed, mala
fide intention was clear in the case. Both offences of cheating under Section
420 IPC and Section 138 of NIT Act are made out and accused can
prosecuted for both the offences.
4. In Vishal Sharma vs. Balkaran Singh, 2015(4) RCR (Criminal) 916 (P&H) and
Yogender Pratap Singh vs. Savitri Devi, 2014 (4) CCC 305 (SC) it was held by
the Hon'ble Court that the Complaint filed before expiry of 15 days from the
date of receipt of notice by the accused is not maintainable.
5. In Damodar S. Prabhu Vs. SayedBabalal H., 2010(2) RCR (Criminal) 851 (SC)
it was held by Hon'ble Supreme Court that if parties compound the offence
in trial court accused will have to pay 10% of cheque amount as cost of
compounding. Cost of compounding will be 15% in High Court and 20% in
Supreme Court. However, in Madhya Pradesh State Legal Services Authority
vs. Prateek Jain and another, 2014(4) RCR (Criminal) 178 (SC) it was held by
the Hon'ble Supreme Court that where settlement is made in Lok Adalat, the
Lok Adalat can waive the same for reasons to be recorded.
6. In V.K. Bhat vs. G. Ravi Kishore and another, 2016(2) RCR (Criminal) 793
(SC) it was held by the Hon'ble Supreme Court that when complaint under
section 138 of the Act is dismissed in default, it amounts to acquittal of
accused under Section 256 of Cr.P.C.
7. In C.C. Alavi Heji Vs. Pala Petty Muhammed, 2007(3) SCC (Criminal) 236 it
was held by the Hon'ble Supreme Court that defence that no notice under
Section 138 proviso (b) has been served cannot be taken without depositing
 cheque amount within 15 days of receipt of summons of court along with
copy a complaint.
8. In K.S. Joseph vs. Philips Carbon Black Ltd. and another, 2016(2) RCR
(Criminal) 788 (SC) it was held by the Hon'ble Supreme Court that the delay
in filing of complaint under Section 138 of the Act cannot be condoned
without notice to the accused.
9. In K.A. Abbas H.S.A. Vs. Sabu Joseph, 2010 (3) RCR (Civil) 187 (SC), the
Hon'ble Supreme Court upheld the sentence of default to suffer
imprisonment in default of payment of compensation awarded against the
accused. In this case, the accused was convicted and was sentenced till
rising of the court and was ordered to pay compensation of Rs.5 lacs and in
case of default to suffer three months simple imprisonment.

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