2015 (5) TMI 48 - HC - Indian Laws

Offence under Negotiable Instruments Act - dishonor of cheque - Revision petition - Trial court convicted with sentenced of rigorous imprisonment for 9 months, compensation of ₹ 4 lakhs within three months from the date of the order, with default sentence of three months simple imprisonment under Section 138 read with section 142 of the Negotiable Instruments Act - Held that - It is the specific case of the respondent/complainant that when the cheques were presented on earlier occasion and get dis-honoured and immediately they contacted the revision petitioner/accused, who prayed for six months time to settle the amount and subsequently voluntarily came forward to alter the year of the cheques from 1995 to 1996. Though it is the specific case of the revision petitioner/accused that it amounts to material alteration, as already pointed out in criminal complaint lodged, in this regard, has become final, as the jurisdictional police has closed the case as 'Mistake of Fact' and no further steps have been taken either to reopen the case or to file a private complaint. The Courts below had recorded the concurrent findings as to the guilt on the part of the revision petitioner/accused for the commission of offence under Section 138 of the Negotiable Instruments Act and this Court, on an independent application of mind to the entire material placed before it, is of the considered view that there is no error apparent or infirmity on the findings rendered by the Courts below. At this juncture, the learned counsel for the revision petitioner/accused made alternately that the revision petitioner being a lady has imposed with a present sentence of nine months simple imprisonment and considering the fact that she has also levied with a compensation of ₹ 4 lakhs, sentence of imprisonment may be set aside and on the said submission, the Court heard the submission of the learned counsel for the respondent/private complainant also and this Court, after considering the said plea and taking into consideration of the fact that now the revision petitioner is aged about 62 years, is of the view that sentence of imprisonment awarded by the trial Court as confirmed by the lower appellate Court is to be set aside, instead, the default sentence is to be imposed in the event of non payment of compensation. - In the result, the criminal revision is dismissed confirming the conviction of the revision petitioner/accused under Section 138 read with 142 of the Negotiable Instruments Act, which has been upheld by the lower appellate Court.

Issues Involved:
1. Legality of the conviction and sentence under Section 138 read with 142 of the Negotiable Instruments Act.
2. Allegations of material alteration in the cheques.
3. Claims of coercion and kidnapping influencing the alteration of cheques.
4. Procedural irregularities in evidence submission.
5. Finality of the criminal case closure regarding the kidnapping allegation.
6. Adequacy of steps taken by the accused to disprove the presumption of guilt.

Issue-wise Detailed Analysis:

1. Legality of the Conviction and Sentence:
The respondent, a registered partnership firm, accused the revision petitioner of issuing cheques that were dishonored. The trial court convicted the petitioner, sentencing her to nine months of rigorous imprisonment and ordering a compensation of Rs. 4 lakhs. The appellate court upheld this decision. The petitioner challenged this conviction and sentence, arguing procedural and substantive errors.

2. Allegations of Material Alteration in the Cheques:
The petitioner argued that the cheques were materially altered to extend the period of limitation by changing the year from 1995 to 1996. The respondent admitted the alteration but contended it was done voluntarily by the petitioner. The court noted that despite the petitioner's claim of material alteration, no effective steps were taken to challenge this alteration legally after the criminal case regarding the alteration was closed as a 'Mistake of Fact.'

3. Claims of Coercion and Kidnapping Influencing the Alteration of Cheques:
The petitioner claimed she was kidnapped and coerced into altering the cheques and signing blank papers. A criminal case was registered but later closed as 'Mistake of Fact.' The court observed that the petitioner did not pursue further legal action to reopen the case or lodge a private complaint, thus the closure of the case became final.

4. Procedural Irregularities in Evidence Submission:
The petitioner contended that the respondent marked several documents without filing a petition for additional evidence, which was a procedural irregularity. The court did not find this argument sufficient to overturn the conviction, as the petitioner failed to disprove the presumption of guilt effectively.

5. Finality of the Criminal Case Closure Regarding the Kidnapping Allegation:
The court noted that the petitioner was aware of the closure of the kidnapping case and did not take steps to challenge it. Therefore, the closure of the case became final, and the allegations of coercion and kidnapping could not be substantiated in this revision petition.

6. Adequacy of Steps Taken by the Accused to Disprove the Presumption of Guilt:
The petitioner argued that the cheques were given as security and the amounts due were paid by cash and demand draft. However, the court found that the petitioner did not take immediate steps to retrieve the cheques or effectively disprove the presumption of guilt under Section 138 of the Negotiable Instruments Act.

Conclusion:
The court dismissed the criminal revision, confirming the conviction under Section 138 read with 142 of the Negotiable Instruments Act but set aside the sentence of imprisonment. Instead, the petitioner was ordered to pay the remaining compensation of Rs. 2 lakhs within six months, failing which she would undergo one month of simple imprisonment. The respondent was permitted to withdraw the Rs. 2 lakhs already deposited by the petitioner during the revision's pendency.

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