2021 (3) TMI 285 - HC - Indian Laws

Dishonor of Cheque - applicant preferred this revision on the ground that learned trial Court did not consider the provisions of Section 138 of NI Act in proper perspective. It is a compensatory aspect rather than preventive - offence of civil nature - HELD THAT - After going through all the orders passed by Hon ble the Apex Court, this Court, appellate Court and by the trial Court, it is reflected that the applicant was released on bail and his jail sentence was suspended by this Court due to widespread of Covid-19 pandemic. The applicant was having an opportunity to renew the bank draft but despite the orders passed by this Court and by Hon ble the Apex Court, the applicant did not obey the directions. It reveals that the conduct of the applicant is not bonafide for the payment of compensation and he breached the faith of commercial transaction for which NI Act was enacted. This Court does not find any cogent reason to reduce the sentence of one year s rigorous imprisonment to the period already undergone by the applicant - It is pertinent to mention here that the applicant s jail sentence was suspended only for a limited period but the applicant after being released on bail, not surrendered before the trial Court within prescribed time after lapse of period of temporary bail - This is also not a good conduct of the applicant, which has to be taken into consideration. In such circumstances, this Court is of the firm view that the applicant is not entitled for reduction of sentence awarded to him. This criminal revision is partly allowed - Only sentence of fine of ₹ 10,000/- for each four counts is set aside and remaining other sentences imposed by the appellate Court is affirmed - Since the applicant is not in jail at present, the applicant is directed to surrender before the trial Court within 15 days from the date of this order to undergo the remaining part of jail sentence.

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881.
2. Appropriateness of the sentence imposed by the trial and appellate courts.
3. Legality of the additional fine imposed by the appellate court.
4. Consideration of the civil nature of the offence under Section 138 of the NI Act.
5. Conduct of the applicant regarding the payment of compensation.

Detailed Analysis:

1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act, 1881:
The applicants were convicted under Section 138 of the NI Act for issuing cheques that were dishonoured due to insufficient funds. The trial court found the applicants guilty and imposed a sentence of rigorous imprisonment for one year and a compensation of ?53,76,000/-. The appellate court affirmed the conviction, which was further upheld by the High Court. The conviction was based on the applicants' failure to supply milk powder or return the advance payment and subsequent dishonour of cheques issued to the respondent.

2. Appropriateness of the Sentence Imposed by the Trial and Appellate Courts:
The trial court initially sentenced the applicant to one year of rigorous imprisonment and compensation. The appellate court reduced the sentence to imprisonment till the rising of the court but imposed an additional fine of ?10,000/- for each of the four counts. The High Court, upon review, found the additional fine erroneous and set it aside while affirming the other sentences. The High Court emphasized that the nature of the offence under Section 138 is compensatory rather than preventive.

3. Legality of the Additional Fine Imposed by the Appellate Court:
The High Court noted that the appellate court erred in imposing an additional fine of ?10,000/- for each of the four counts without an appeal from the respondent seeking enhancement of the sentence. According to Section 386 of the Cr.P.C., the appellate court cannot enhance the sentence unless an appeal for enhancement is filed. Consequently, the High Court set aside the additional fine imposed by the appellate court.

4. Consideration of the Civil Nature of the Offence under Section 138 of the NI Act:
The High Court acknowledged the civil nature of the offence under Section 138, as highlighted in precedents such as Damodar S. Prabhu vs. Sayed Babalal H. and Kaushyalya Devi Massand vs. Roopkishore Khore. The court noted that the offence is akin to a civil wrong with criminal overtones, primarily intended to ensure the reliability of cheques in commercial transactions. Despite this, the High Court found no reason to reduce the sentence of rigorous imprisonment, given the applicant's conduct.

5. Conduct of the Applicant Regarding the Payment of Compensation:
The High Court criticized the applicant's conduct in not paying the compensation despite multiple orders from the courts, including the Apex Court. The applicant's failure to renew the bank draft and his non-compliance with court orders reflected a lack of bona fide intention to settle the dues. The court emphasized that the applicant's behavior breached the faith of commercial transactions, justifying the sentence imposed by the trial court.

Conclusion:
The High Court partly allowed the criminal revision by setting aside the additional fine of ?10,000/- for each count but affirmed the remaining sentences, including the one-year rigorous imprisonment and compensation amount. The applicant was directed to surrender within 15 days to undergo the remaining jail sentence, with coercive measures to be adopted in case of non-compliance. The court's decision underscores the importance of maintaining the integrity of commercial transactions and the compensatory nature of the offence under Section 138 of the NI Act.

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