Shyam Lal vs Diwan Chand And Others

Chander Bhusan Barowalia, J

By way of this petition, petitioner-accused has assailed the judgment passed by the Court of learned Additional Sessions Judge-I, Mandi, District Mandi in CNR No. HPMA010017782014 dated 8.4.2019, whereby learned Appellate Court confirmed the judgment of conviction passed against the petitioner-accused by Court of learned Judicial Magistrate First Class, Karsog, District Mandi, in Criminal Case No. 203-11 of 2011, dated 26.11.2013/2.12.2013, whereby learned Trial Court convicted the petitioner-accused for commission of offence punishable under Section 138 of the Negotiable of Instruments Act (in short 'the Act') and sentenced him to undergo simple imprisonment for a period of three months and also awarded compensation of Rs. 40,000/- to the complainant and in default of payment of compensation amount, he was ordered to further undergo simple imprisonment for one month.

Brief facts necessary for adjudication of the petition are as under: Respondent-complainant (hereinafter referred to as 'the complainant') filed a complaint against the petitioner-accused (hereinafter referred to as 'the accused') under Section 138 of the Act alleging that accused had borrowed a sum of Rs. 40,000/- from the complainant for his business and for discharging said liability, accused had issued two post dated cheques, bearing No. 030766 and 030767 , dated 11.7.2011, for an amount of Rs. 20,000/- each drawn upon State Bank of Patiala Branch at Patlikuhl, PO Katrain, District Kullu, H.P. in favour of the complainant.

On presentation, said cheques were dishonored, vide Memo, dated 26.8.2011, with remarks "Insufficient Funds". Complainant thereafter issued a Legal Notice, dated 1.9.2011, and despite receiving the same, no payment was made by the petitioner-accused.

Feeling aggrieved, the complainant invoked the provisions of Section 138 of the Negotiable Instruments Act. Learned Trial Court held that issuance of cheque stood proved, as accused did not dispute his signature upon the same. It was further held that dishonoring of the cheque was duly proved by the complainant along with the statutory notice, which he got issued to the respondent-accused.

Learned Trial Court held that the accused had committed an offence punishable under Section 138 of the Act and these findings were confirmed by learned Appellate Court by holding that the sentence imposed upon the accused is neither on the higher side nor inappropriate, but sentencing the convict to undergo simple imprisonment for three months and to pay the compensation of Rs. 40,000/- is most reasonable and the impugned judgment and order also do not call for any interference. Hence the present revision petition.

Feeling aggrieved the accused has filed this criminal revision.

I have heard learned counsel for the parties and have also gone through the judgments passed by both learned Courts below.

Record demonstrates that complainant entered into the witness box as CW-I and he proved on record the cheques issued in his favour by the accused, which on presentation were dishonored. Complainant also proved on record Legal Notice, which was issued to the accused after dishonoring of the cheque as also the acknowledgment of the accused having received the said notice. Said Legal Notice is on record as Ext.C-6, whereas receipt is on the record as Ext.C-7, acknowledgement as Ext.C-8. Complainant having satisfied the ingredients required to be proved for setting up the case under Section 138 of the Act, both the learned Courts below have convicted and sentenced the petitioner-accused with simple imprisonment of the term of three months and have ordered him to pay compensation of an amount of Rs.40,000/.

Record also demonstrates that complainant placed on record cogent and reliable evidence to prove his case. Complainant had specifically mentioned that accused had borrowed a sum of Rs. 40,000/- from him for his business and in discharge of said liability, accused had issued two post dated cheques, bearing No. 030766 and 030767, dated 11.7.2011, for an amount of Rs. 20,000/- each drawn upon State Bank of Patiala Branch at Patlikuhl, PO Katrain, District Kullu, H.P. in his favour. The said cheques, on being presented, were dishonored with the remarks 'insufficient funds'. Complainant served a Legal Notice dated 1.9.2011, calling upon the accused to make the payment of the cheques amount within fifteen days from the date of receipt of notice, but despite receipt of the said notice, accused failed to make the payment. That being so, in view of the evidence on record produced by the complainant, both the learned Courts below have correctly rendered the findings of conviction in favour of the complainant and against the accused. Neither there is any illegality in the judgments of conviction passed by learned Courts below nor they suffer from any jurisdictional error.

However, taking a lenient view, this Court turns to what would be the result of the aforesaid findings. The complaint was instituted in October, 2011, since then eleven (11) years have elapsed. Therefore, taking into consideration the cheques' amount, this Court comes to the conclusion that a reasonable sentence is required to be imposed upon the petitioner-accused. As per the records, the petitioner-accused is a poor person, so in these circumstances, as the present was a cheque of Rs, 40,000/ - only, this Court finds that interest of justice will be met in case in place of imprisonment and compensation of Rs. 40,000/-, the compensation amount is enhanced from Rs. 40,000/- to Rs. 60,000/- and no imprisonment be awarded to the petitioner-accused. The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. I am of the view that in the given scenario, interest of justice will be met in case petitioner-accused is fined with an amount of Rs. 60,000/- and the said amount of Rs. 60,000/- shall be given to the complainant and imprisonment so awarded by the learned courts below is set aside. So, in these circumstances, the instant revision is allowed only to the extent that petitioner-accused is fined to pay compensation of Rs. 60,000/- to the complainant and in default of payment of compensation amount, he will undergo simple imprisonment for a period of one year.

The criminal revision accordingly stands allowed in the aforesaid terms, so also pending miscellaneous applications, if any.