2023 (8) TMI 785 - HC - Indian Laws

Dishonour of Cheque - legally enforceable debt at the time of encashment or not - applicability of section 138 of Negotiable Instrument Act - HELD THAT - It appears that the Learned Magistrate has conducted the proceeding acording to the provisions of law and during the course of examination of the accused/ petitioner u/s 313 Cr.P.C. Petitioner stated some of the amount of the cheques has already been paid to the opposite parties and he possessed those receipts. It appears from the LCR that the present petitioner intends to adduce evidences for defence accordingly the date was posted for DWs thereafter the, petitioner was not turned up thus, finding no other alternative Learned Magistrate has closed the DWs. Thereafter the date was fixed for the argument and the petitioner/accused took part of the proceeding and the Learned Advocate for the petitioner argued the matter at length. So it proves that the petitioner was allowed to adduce DWs but he has not availed the same. In the present case the petitioner cannot be awarded to suffer simple Imprisonment for more than 06 months in default of payment of compensation. Consequently the portion of the order of the sentence passed by the Learned Magistrate affirmed by the Learned Additional Sessions Judge is appeared to me improper and illegal. The present petitioner is aged about 80 years; he has already suffered simple imprisonment during the pendency of the instant revision. Some amount has already been deposited by the direction of this court before the Learned Magistrate. Considering the entire facts and circumstances and considering the observation made above the impugned order of default of payment by the petitioner/accused to suffer simple imprisonment for nonpayment of the compensation amount within stipulated period is set aside. Application disposed off.

Summary

Issues involved:
The issues involved in this case revolve around the conviction of the petitioner under Section 138 of the Negotiable Instruments Act, the order of compensation, the consideration of additional evidence, and the legality of the sentence passed by the Learned Magistrate.

Conviction under Section 138 of Negotiable Instruments Act:
The petitioner was convicted under Section 138 of the Negotiable Instruments Act based on dishonored cheques issued during a business transaction with the opposite party. The petitioner contested the complaint case before the Learned Magistrate but was convicted and sentenced to suffer detention till rising of the court and pay compensation. The petitioner argued that he had already made payments to the opposite party, which were not considered by the courts. The petitioner sought to adduce additional evidence to prove these payments, which was not allowed. The court noted the petitioner's claim but found no infirmity in the judgment of the Learned Additional Sessions Judge affirming the conviction.

Consideration of Additional Evidence:
The petitioner requested to adduce additional evidence to prove the payments made to the opposite party, which he claimed were not considered during the trial. The petitioner argued that the failure to consider these payments would affect the applicability of Section 138 of the Negotiable Instruments Act. However, the court found that the petitioner was given the opportunity to adduce evidence for his defense, but he did not avail it. The court held that the plea for additional evidence during the appeal stage was rightfully discarded by the Learned Additional Sessions Judge.

Legality of Sentence:
The court examined the legality of the sentence passed by the Learned Magistrate, particularly the term of imprisonment in default of payment of compensation. The court referred to Section 30 of the Code of Criminal Procedure, which limits the term of imprisonment in default of fine. Considering the age of the petitioner and the fact that he had already undergone simple imprisonment, the court found the default sentence to be improper and illegal. The court set aside the order for the petitioner to suffer simple imprisonment for nonpayment of the compensation amount within the stipulated period.

Conclusion:
In conclusion, the High Court of Calcutta disposed of the Criminal Revisions, setting aside the default sentence for the petitioner to suffer simple imprisonment. The opposite party was granted liberty to recover the compensation amount according to the law and to receive the amount already deposited by the petitioner before the Learned Magistrate. Any orders of stay were vacated, and the parties were directed to act upon the judgment copy received from the concerned department.