Laxman Lal vs State Of Uttarakhand

Ravindra Maithani, J

The challenge in this revision is made to the following:-

(i) Judgment and order dated 08.09.2022, passed in Criminal Complaint Case No. 721 of 2019, Surendra vs. Laxman Lal, by the court of Additional Chief Judicial Magistrate, Kotdwar, Pauri Garhwal (“the case”). By it, the revisionist has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) and sentenced to undergo imprisonment for a period of one year with a fine of Rs. 2,10,000/-. In default of payment of fine, to undergo simple imprisonment for a period of six months;

(ii) Judgment and order dated 14.09.2023, passed in Criminal Appeal No. 69 of 2022,Laxman Lal Vs. Surendra, by the court of Additional Sessions Judge, Kotdwar, District Pauri Garhwal (“the appeal”). By it, the order passed in the case was affirmed.

Heard learned counsel for the parties and perused the record.

The case is based on a complaint filed by the respondent no.2 (“the complainant”). According to the complainant, the complainant and the revisionist were known to each other. The revisionist took loan of Rs. 2 Lakhs from the complainant on 12.09.2018, under the assurance that he would return it soon. Thereafter, the revisionist gave a cheque dated 07.06.2019 of Rs. 2 Lakhs to the complainant, which, when presented in the Bank, was dishonoured. Notices were given to the revisionist, but he did not pay the amount. Thereafter, a complaint was filed. On 01.07.2019, the revisionist was summoned to answer accusation under Section 138 of the Act. The revisionist did appear in the case. On 02.03.2021, the accusation was read over to the revisionist. According to him, he did not pay any cheque to the complainant. The cheque was lost and he had informed about it to the Bank also.

On behalf of the complaint, he himself was examined. He also produced the cheque, the bank documents, information of dishonouring of the cheque and other documents. The complainant was extensively cross-examined also.

On 10.06.2022, the revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973. He reiterated that he did not give any cheque to the complainant, he does not know the complainant. The cheque was lost of which information was given to the Bank and at police station also.

After hearing the parties, by the impugned judgment and order dated 08.09.2022, the revisionist has been convicted and sentenced, as stated hereinbefore, which was unsuccessfully challenged in the appeal.

In this revision, learned counsel for the revisionist did not raise any point on merits. He would submit that the sentence of the revisionist may be restricted to the period of custody, which he has already undergone.

Learned counsel for the complainant would also submit that the sentence of the revisionist may be restricted to the period of custody, which he has already undergone.

Insofar as merits are concerned, as stated, no argument has been made. The complainant has proved his complaint by way of an affidavit, which he gave in his examination-in-chief. He was extensively cross-examined. Nothing has been elicited, which in any manner doubts the case of the complainant.

In the impugned judgment and order dated 08.09.2022, the Court has extensively discussed the evidence and the rival submissions of the parties and had concluded that the complainant has been able to prove his case beyond reasonable doubt. The finding recorded is in accordance with law. Therefore, this Court is of the view that, in fact, the complainant has been able to prove the offence under Section 138 of the Act against the revisionist. The conviction of the revisionist under Section 138 of the Act is upheld and confirmed.

Insofar as sentence is confirmed, the maximum sentence under Section 138 of the Act is imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

In the case of Somnath Sarkar Vs. Utpal Basu Mallick and Another, (2013) 16 SCC 465, the Hon’ble Supreme Court, on the question of sentence, has observed as follows:-

“14. This Court also took note of the number of cases involving dishonour of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonour of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended to ensure quick recovery of the amount payable under the instrument. The following passages from the decision are in this regard apposite Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663.

“4. … It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a ‘fine which may extend to twice the amount of the cheque’ serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions.

Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakhs cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system.”

“15. We do not consider it necessary to examine or exhaustively enumerate situations in which courts may remain content with imposition of a fine without any sentence of imprisonment. There is considerable judicial authority for the proposition that the courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. Inasmuch as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage.”

Having considered the entirety of facts, this Court is of the view that in the instant case, the sentence of imprisonment may be restricted to the period of custody, which the revisionist has already undergone in the matter.

The conviction of the revisionist under Section 138 of the Act is upheld and confirmed.

Under Section 138 of the Act, the revisionist is sentenced to the period of imprisonment, which the revisionist has already undergone in the instant case. The fine shall remain unaltered.

The impugned judgment and orders are modified to the extent, as indicated hereinabove.

The revision is partly allowed, accordingly.

The revisionist is in custody. He be released forthwith, if not wanted in any other case.

Let a copy of this judgment along with the Lower Court Record be transmitted to the court below for compliance.