Maruti Seetharam Naik vs Arunkumar Nayak

Anand Byrareddy, J.—Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondent.

The Petitioner was accused of having committed an offence punishable u/s 138 of the Negotiable Instruments Act. The matter having been contested, the Court of the Magistrate has held that the accused was found guilty of the offence alleged and acting u/s 255(2) of the Code of Criminal Procedure has convicted the accused to undergo simple imprisonment for eight months and to pay fine of Rs. 1,000/- and also to pay compensation of Rs. 1,00,000/-within three months from the date of the order. That judgment was unsuccessfully challenged in appeal and thereafter, the present petition was filed.

The learned Counsel for the Petitioner seeks to contend that the cheque in question was issued as security for the due repayment of a loan and was not given for any other lawful consideration. The same is sought to be misused by the complainant. This was the defence that was urged and negated by both the Courts below. There is No. scope for considering the said ground before this Court. In terms of Section 139 of the Negotiable Instruments Act, the burden was on the Petitioner to establish the said defence, in the absence of any material placed before the Court. It could not be said that the Petitioner was even in a position to urge this defence, nor it could be said that there was any scope for establishing the said defence, with reference to the evidence tendered by the Respondent -complainant. In that view of the matter, the defence, which lies on findings of the fact, cannot be countenanced.

However, in the alternative, the learned Counsel for the Petitioner would seek to contend, that the Court below has thought it fit to impose the punishment of imprisonment, payment of fine as well as payment of compensation. The punishment, therefore is three-fold. This according, to the learned Counsel for the Petitioner is disproportionate to the offence said to have been committed. The object of the Act is to ensure speedy recovery of the amount covered under a cheque by imposing penal liability. It is not sought to be taken to its limit whereby the accused penalised not once but three times over, which is wholly disproportionate to the offence committed.

Hence, in the alternative, the learned Counsel would plead that even if the Petitioner has not made a case on merits, the punishment requires to be tempered in a fashion that it is just and reasonable and hence, seeks modification of the same.

The learned Counsel for the Respondent on the other hand, would oppose the alternative prayer that is sought to be urged, the contention that the punishment imposed is disproportionate, is not relevant. The power vested in the Court has been exercised and not to the full measure as the Court below was empowered to impose even greater punishment and the lenience shown, on the other hand, is sought to be condemned by the Petitioner and he would therefore, submit there is no ground for interference.

On the above contentions, the Petitioner has not made out any case on merits, in so far as his defence is concerned. On the other hand, the alternative relief sought in modification of the sentence imposed does merit consideration. The power vested in the Court having been exercised legitimately cannot be disputed. However, justice requires that the punishment imposed is always proportionate to the offence alleged. In the given case on hand, the cheque was for a sum of Rs. 78,000/-, it was appropriate that the cheque amount to be paid as compensation. With such other additional relief, that he may be entitled to, by way of interest on the amount. As the cheque was of the year 2005, and proceeding on the basis that the complainant was deprived of his money over the years. Punishment by way of imprisonment could also be imposed. In the event that the Petitioner defaulted in payment of such compensation. This is the object with which the Court is conferred with the power of imposing the punishment of imprisonment. While there is also power granted under the Code of Criminal Procedure to award compensation. The Court below having thought it fit to impose the extreme punishment, therefore, is out of place, in relation to an economic offence in having defaulted in payment of money covered under the cheque. Therefore, there is reason to interfere in the punishment imposed. Accordingly, the punishment of imprisonment imposed on the Petitioner is set aside. In so far as the amount of fine payable is found to be reasonable and the Petitioner having deposited the same, it is not necessary to interfere with the same. In so far as the payment of the compensation is concerned, the Court has directed payment of Rs. 1,00,000/- as against cheque amount of Rs. 78,000/-. Even if interest is taken at 10% per annum since the year 2005, the same would amount to almost Rs. 40,000/-. Accordingly, it is appropriate that the Petitioner pay a large amount of compensation, since the Petitioner had already deposited a sum of Rs. 25,000/-. It is appropriate that he deposit a further sum of Rs. 85,000/-. He shall therefore pay a total compensation of Rs. 1,10,000/-.Subject to this the impugned judgment stands modified in terms, as above. In the event of default in the payment of compensation, the punishment imposed shall revive in all its rigour. With that modification the petition stands allowed.

Accordingly, a sum of Rs. 75,000/- shall be deposited within a period of two months from the date of the receipt of a certified copy of the order.

The Respondent - complainant is permitted to withdraw the amount deposited.