Ashok Kumar Khandelwal vs Prafulla Kumar Manek

Sanjay K. Agrawal, J.—The applicant herein was tried for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "Act, 1881") on the charge that he issued a cheque of Rs. 50,000/- on 18-4-2001 in discharge of his liability and on presentation the said cheque was dishonoured by the Bank holding that there is insufficient fund in the account of the applicant, this led to serving of the notice and non-payment thereof, complainant filed complaint before the Jurisdictional Criminal Court against the present applicant. The Jurisdictional Criminal Court, after full-fledged trial and after appreciating the oral and documentary evidence available on record, found the applicant guilty for commission of offence under Section 138 of the Act, 1881 and sentenced him to undergo rigorous imprisonment for one year with fine of Rs. 3,000, in default of payment of fine to further undergo Rigorous Imprisonment for three months. Against which, appeal filed by the accused/applicant remained unsuccessful before the Court of Session leading to filing of this revision before this Court under Section 397 read with Section 401 of the Code of Criminal Procedure.

Mr. Pankaj Tiwari, learned Counsel appearing for the applicant would vehemently contend that conviction recorded by the Trial Magistrate as well as Court of Session for alleged commission of offence under Section 138 of the Act, 1881 is absolutely illegal and bad in law. Alternatively, he would submit that the sentence awarded is excessive and sentence deserves to be reduced as the applicant has already suffered jail sentence of two days. He would further submit that since the dispute is of Rs. 50,000/-, and applicant is ready and willing to compensate the complainant by paying Rs. 1,00,000/- (just double amount of the cheque in question) as compensation under Section 357(3) of the Criminal Procedure Code.

Per contra, Shri Amiayakant Tiwari, learned Counsel for the respondent/complainant would submit that conviction recorded by the Trial Magistrate as affirmed by the Appellate Court is well-merited and the sentence awarded to the applicant is also just and proper, which does not call for any interference.

I have heard learned Counsel appearing for the parties and perused the records of Courts below including order impugned with utmost circumspection.

The Trial Court, has clearly recorded a finding that the cheque in question was issued by the applicant in discharge of his liability towards the complainant, which became dishonoured, as the applicant did not maintain proper balance in his account. The Trial Court, has further recorded a finding that after service of notice, the criminal complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 within the period of limitation, as such, the applicant has committed the offence punishable under Section 138 of the Act, 1881. The said finding has been accepted by the Appellate Court in appeal.

In the considered opinion of this Court, the concurrent finding recorded by two Courts below, holding that applicant guilty for commission of offence under Section 138 of the Act, 1881 is neither perverse nor contrary to the records. Thus, it is held that the said finding is based on the material available on record, which does not call for any interference.

Now the question of sentence comes, the applicant has been convicted for commission of offence under Section 138 of the Act, 1881 and sentenced to undergo rigorous imprisonment for one year with fine of Rs. 3,000/-.

It is stated at the bar that the applicant remained in jail for two days.

Section 138 of the Negotiable Instruments Act, 1881 provides as under:--

"138. Dishonour of cheque for insufficiency, etc. of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of cheque, or with both."

A careful and close perusal of the aforesaid provision would show that the jail sentence for commission of offence under Section 138 of the Act, 1881 is not mandatory as it is within the discretion of the Magistrate to award sentence of fine only.

In Kaushalya Devi Massand Vs. Roopkishore Khore, , Their Lordship of Supreme Court has held that gravity of complaint under the Act, NI Act, 1881 cannot be equated with offence under Indian Penal Code or other criminal offence, this offence is almost in the nature of a civil wrong which has been given criminal overtones.

Thus, taking into consideration the fact that date of offence is 18-4-2001 and the applicant has already remained in jail for two days and he has already suffered trauma of uncertainty arising out of his conviction by the Trial magistrate as well as Court of Session, in the considered opinion of this Court, the ends of justice would be served if the substantive sentence, which the applicant has already undergone is held sufficient.

As a fall out and consequence of the aforesaid discussion, the revision is partly allowed. Conviction part of the impugned judgment is maintained. Applicant is reported to have remained in jail for two days and, therefore, his sentence is reduced to the period already undergone by him. However, in lieu thereof, applicant is directed to pay fine amount of Rs. 1,00,000/- as compensation under Section 357(3) of the Code to the non-applicant/complainant, and the same shall be deposited in the Trial Court within one month from the date of receipt of copy of this order, and upon such deposit being made, the non-applicant/complainant will be at liberty to withdraw the same. In default of such deposit, the applicant shall undergo one month''s simple imprisonment. The bail bonds of the applicant shall remain in operation for a period of six months from today in view of the provisions contained under Section 437-A of the Code of Criminal Procedure, 1973. No order as to cost(s).