2016 (1) TMI 1239 - HC - Indian Laws

Maintainability of appeal under Section 378(4) of the Criminal Procedure Code - Held that - An appeal under Section 378(4) of the Code can only be filed against an order of acquittal and not against an order of conviction or for seeking enhancement of sentence. Therefore, the appeal is not maintainable. While sentencing the accused, the Magistrate can punish the accused with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of the cheque, or with both. But nowhere is it mandatory for the Magistrate to punish the accused with actual imprisonment even in case where he has already imposed a fine of twice the amount of the cheque. The learned Magistrate in its wisdom has imposed a fine twice the amount of the cheque, which in my considered view is sufficient to meet the ends of justice. Moreover, there are no special circumstances carved out by the appellant so as to call for any interference with the order of the Magistrate so as to alter and impose a more stringent sentence.

Summary

Issues:
1. Maintainability of the appeal under Section 378(4) of the Criminal Procedure Code against a conviction.
2. Interpretation of Section 138 of the Negotiable Instruments Act regarding sentencing for dishonour of a cheque.

Issue 1: Maintainability of the appeal under Section 378(4) of the Criminal Procedure Code against a conviction:
The judgment discusses the legal maintainability of an appeal under Section 378(4) of the Criminal Procedure Code against a conviction. It highlights that such appeals can only be filed against orders of acquittal and not for seeking enhancement of sentence. The appellant had previously withdrawn an appeal filed under Section 372 Cr.P.C., acknowledging its non-maintainability. The court emphasizes that the appeal under Section 378(4) is not legally tenable against a conviction.

Issue 2: Interpretation of Section 138 of the Negotiable Instruments Act regarding sentencing for dishonour of a cheque:
The judgment delves into the interpretation of Section 138 of the Negotiable Instruments Act concerning the sentencing for the dishonour of a cheque. It is noted that the Act allows for punishment with imprisonment up to two years, a fine up to twice the amount of the cheque, or both. The court emphasizes that the primary objective of such punishment is to ensure the recovery of money rather than seeking retribution through imprisonment. Citing legal precedents, the judgment highlights that the offence under Section 138 is akin to a civil wrong with criminal implications, focusing on compensatory purposes rather than punitive measures. The court concludes that the fine imposed by the Magistrate, twice the cheque amount, is adequate to serve the ends of justice, and no special circumstances warrant altering the sentence to impose actual imprisonment.

In summary, the judgment addresses the maintainability of an appeal under Section 378(4) of the Criminal Procedure Code against a conviction and provides a detailed analysis of the interpretation of Section 138 of the Negotiable Instruments Act regarding sentencing for the dishonour of a cheque. It underscores the compensatory nature of the punishment under the Act and emphasizes the importance of ensuring the recovery of money in such cases.