2022 (9) TMI 378 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - existence of legally enforceable debt or not - applicant submitted that conviction recorded and sentence awarded by both the Courts below are absolutely illegal - whether the sentence awarded is on higher side as the jail sentence is not mandatory in view of the language employed in Section 138 of the Act of 1881? - HELD THAT - From bare perusal of Section 138 of the Act of 1881, it is crystal clear that a person, who has been held guilty under Section 138 of the Act of 1881 can be punished with imprisonment for a term which may extend up to two years, or with fine which may extend to twice the amount of the cheque or with both. Thus, there is a discretion left with the Criminal Court either to sentence the accused with imprisonment or to punish the accused with the sentence of fine upon considering the facts and circumstances of the case. Imposition of jail sentence is not mandatory for offence under Section 138 of the Act of 1881. Under revisional jurisdiction given in Section 397/401 of the CrPC, invoking revisional jurisdiction of High Court, It is deemed fit to modify the sentence part of SI of three months and fine of Rs. 10,000/- to only fine of Rs. 35,000/-. Sentence of SI for three months is hereby modified to fine of Rs. 25,000/- only, while remaining part of sentence i.e. fine of Rs. 10,000/- will remain intact. The conviction of the applicant for offence under Section 138 of the Act of 1881 is hereby maintained, whereas, the jail sentence of the applicant is modified and he is now sentenced to pay fine of Rs. 25,000/-, in place of SI for three months, as awarded by trial Court. Fine of Rs. 10,000/- imposed by trial Court shall remain intact. Fine amount of Rs. 35,000/- is payable to the non-applicant/complainant under Section 357(1)(b) of the CrPC. Any fine amount already paid by applicant shall be adjusted. The Criminal Revision is allowed in part.

Summary

Issues:
1. Conviction under Sections 142 and 138 of the Negotiable Instruments Act, 1881.
2. Challenge to the judgment by filing an appeal before the Sessions Court.
3. Revisional jurisdiction invoked to set aside the judgment passed by the lower Appellate Court.
4. Legality of the conviction and sentence awarded.
5. Interpretation of Section 138 of the Act of 1881 regarding punishment discretion.
6. Modification of the sentence under revisional jurisdiction.

Analysis:
1. The complainant filed a complaint under Sections 142 and 138 of the Negotiable Instruments Act, 1881, alleging that the applicant issued a cheque that was dishonored due to insufficient funds. The trial Court convicted the applicant under Section 138 and sentenced him to three months of simple imprisonment (SI) and a fine of Rs. 10,000. Three witnesses were examined, and the conviction was based on the evidence presented.

2. The applicant appealed the judgment before the Sessions Court, which affirmed the conviction and sentence. Subsequently, the applicant filed a Criminal Revision before the High Court challenging the lower Appellate Court's decision dated 14.02.2011.

3. The applicant argued that the conviction and sentence were illegal, emphasizing that the jail sentence was not mandatory under Section 138 of the Act of 1881. The complainant's counsel, on the other hand, contended that the conviction and sentence were justified and reasonable.

4. The High Court analyzed Section 138 of the Act of 1881, noting that the Court has discretion to impose imprisonment or a fine, considering the circumstances of the case. Both the trial Court and the lower Appellate Court exercised their discretion in convicting the applicant and imposing a sentence of three months SI and a fine of Rs. 10,000.

5. Under the revisional jurisdiction provided in the CrPC, the High Court modified the sentence, reducing the SI to a fine of Rs. 25,000 while maintaining the Rs. 10,000 fine. The total fine amount of Rs. 35,000 was deemed payable to the complainant under Section 357(1)(b) of the CrPC. Any fine already paid by the applicant would be adjusted accordingly.

6. Consequently, the Criminal Revision was partly allowed, maintaining the conviction under Section 138 of the Act of 1881 but modifying the sentence to a fine of Rs. 25,000 instead of three months SI. The total fine amount of Rs. 35,000 was to be paid to the complainant, and the judgment was modified accordingly.