2023 (11) TMI 362 - HC - Indian Laws

Dishonour of Cheque - insufficiency of funds - rebuttal of presumption - it is alleged that the learned trial Court has not considered the law and facts involved in the present case as the complainant could not plead and prove, in this case, that there was any subsisting liability at the time of issuance of cheque in question - quantum of sentence - HELD THAT - The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act - In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under Section 313 Cr.P.C, then, the said stand has rightly been discarded by the learned trial Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act. Quantum of sentence - HELD THAT - In the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice is better. Considering the said fact, while deciding the quantum, it was incumbent upon the learned trial Court to consider the fact about the benefit which had drawn by the accused for committing the offence alleged against the complainant - The learned trial Court has awarded the compensation of Rs.3,50,000/- and the said order of quantum of sentence has not been assailed by the complainant before the learned Appellate Court or before this Court. Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of imprisonment till rising of Court - Revision disposed off.

Summary

Issues involved:
The judgment involves issues related to a revision petition filed against a judgment of conviction and order of sentence under Section 138 of the Negotiable Instruments Act.

Issue 1: Conviction and Sentence
The petitioner filed a revision petition against the judgment of conviction and order of sentence passed by the trial court. The complainant had filed a complaint under Section 138 of the N.I Act against the petitioner for issuing a cheque with insufficient funds. The trial court found a prima facie case and summoned the accused. The accused denied the allegations but did not provide any evidence in defense. The trial court convicted and sentenced the accused, which was upheld by the appellate court.

Issue 2: Revision Petition
The revision petition contended that the trial court did not consider the law and facts properly. The petitioner argued that the complainant failed to prove a subsisting liability at the time of issuing the cheque. The petitioner highlighted contradictions in witness statements and claimed that the trial court wrongly convicted him under Section 138 of the N.I. Act.

Issue 3: Evidence and Proceedings
The evidence presented included witness testimonies and documents related to the issuance and dishonor of the cheque. The accused denied issuing the cheque but did not provide any evidence. The court noted that the accused's statement under Section 313 Cr.P.C. does not constitute evidence. The trial court's conviction was based on the evidence presented, and the appellate court upheld the decision.

Separate Judgement:
The revision petition was dismissed, but the substantive sentence was modified to imprisonment till 'rising of Court' considering the accused had deposited the compensation amount and compounding fee. The court noted that the complainant did not challenge the compensation awarded, and the judgment was based on the specific circumstances of the case.