2021 (1) TMI 851 - HC - Indian Laws

Dishonor of Cheque - defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant - Section 138 of the Negotiable Instruments Act. Whether the finding recorded by the learned Magistrate that accused has committed an offence under Section 138 of the Negotiable Instruments Act confirmed by the first Appellate Court is erroneous? - HELD THAT - It is the accused who has taken the contention that there is a material alteration in Ex.P-1. It was required for the accused to make an application seeking necessary orders to refer the Ex.P-1 for hand-writing expert. No such application is filed by the accused before the learned Magistrate or atleast before the first Appellate Court. All along, the accused tried to impress upon the Court that a cheque has been mis-used by the complainant. But, no complaint is filed by the accused as against the complainant even after he came to know about the filing of the criminal complaint against him in CC No.35/2010. Why accused did not take any action against the complainant about the mis-use of Ex.P1 is not explained by the accused. PW-2 who is the Manager of the Indian Overseas Bank, Tumkur has specifically deposed before the Court that the signatures found in Ex.P1 tallies with the specimen signatures maintained by the Bank - These aspects of the matter has been properly appreciated by the learned Magistrate as well as the first Appellate Court in the impugned judgment. This court in the revisional jurisdiction with the limited scope of revision, cannot re-visit to the minute details in the case especially when there is a concurrent finding of facts of both the courts. Suffice to say when the materials available on record and the reasonings recorded by both the courts in the impugned judgments, do not suffer from legal infirmity so as to interfere with the same in this Revision Petition there cannot be any dispute as to the principles of law enunciated in the judgments cited by the learned counsel for the Revision Petitioner. But the facts in the said case and the facts of the case on hand are altogether different and in the absence of any positive evidence placed by the accused, the finding recorded and the alteration found in Ex.P1 signed by accused is not a material alteration and therefore, the said decision, principles cited in the said case is not of much avail to the revision to seek an order of interference by this court. Whether the sentence passed by the learned Magistrate in CC No.35/2010 and confirmed in Criminal Appeal is erroneous? - HELD THAT - The Trial Court while passing the impugned judgment has passed conviction order sentencing the accused to undergo simple imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act - It is pertinent to note that the operative portion of the order do not contain a sentence of fine ordered as against the accused but only compensation of ₹ 2 lakhs is ordered. In paragraph 28 of the judgment, there is a discussion as to why the learned Magistrate is imposing fine of ₹ 2,00,000/-. The learned Magistrate has rightly observed that accused has set up all possible evidence that are available to the accused to failed to substantiate the said defence and therefore, he has caused mandatory loss to the complainant and hence ordered for compensation of a sum of ₹ 2,00,000/-. Whenever a compensation is awarded in a matter of this nature, it is needless to emphasize that the accused must be sentenced to pay a fine of ₹ 5,000/- and out of the fine amount, but the Trial Court has not fined the accused and passed an order of imprisonment for one year. Though there is a serious legal flaw in such an evidence, the first Appellate Court unfortunately did not bestow its attention to correct the same. The Trial Court did not assign any reasons for ordering the imprisonment of one year - It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a cine qua non. In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the first Appellate Court while confirming the order passed by the learned Magistrate. Having regard to the fact that the accused failed to prove his defence that he lost the cheques and the same has been mis-used by the complainant, awarding a sum of ₹ 2,00,000/- as the compensation payable to the complainant as against the cheque amount of ₹ 1,25,000/- is reasonable. However, since the accused has not lodged any complaint or stated the same before the learned Magistrate, it is necessary for this court to pass an appropriate sentence - Revision allowed in part.

Summary

Issues involved:
1. Conviction under Section 138 of the Negotiable Instruments Act challenged in Revision Petition.
2. Validity of the sentence passed by the Trial Court and confirmed in Criminal Appeal.

Detailed Analysis:
Issue 1: Conviction under Section 138 of the Negotiable Instruments Act challenged in Revision Petition
The accused filed a Revision Petition challenging the order of conviction passed by the IV Addl. District and Sessions Judge, Madhugiri. The accused was convicted for issuing a post-dated cheque that was dishonored due to insufficient funds. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, alleging that the accused borrowed money and issued a cheque for repayment. The accused denied the allegations, claiming that the cheque was misused. The courts considered the evidence, including the dishonored cheque, legal notice, and witness testimonies. The accused argued that there was a material alteration in the cheque date, rendering it invalid. However, the courts found the alteration explained by the complainant and noted the absence of an application for handwriting analysis by the accused. The courts concluded that the accused failed to provide evidence to support his defense, leading to the confirmation of the conviction.

Issue 2: Validity of the sentence passed by the Trial Court and confirmed in Criminal Appeal
The Trial Court sentenced the accused to one year of simple imprisonment and ordered compensation of ?2,00,000 to the complainant under Section 357(3) of Cr.PC. The Trial Court did not impose a fine on the accused but justified the compensation based on the accused's failure to substantiate his defense. The absence of reasons for the imprisonment term was noted. The first Appellate Court upheld the Trial Court's decision without addressing the lack of fine imposition or reasons for the imprisonment term. The High Court observed that while the compensation amount was reasonable, the absence of a complaint by the accused regarding the alleged misuse of cheques required intervention. Consequently, the High Court modified the sentence, directing the accused to pay ?2,05,000, with ?5,000 as fine and ?2,00,000 as compensation, by a specified date, with imprisonment for non-payment of the fine.

In conclusion, the High Court partially allowed the Revision Petition, maintaining the conviction but modifying the sentence to include a fine and compensation amount, emphasizing the necessity of providing reasons for sentencing decisions and addressing legal flaws in judgments.