2021 (1) TMI 305 - HC - Indian Laws

Dishonor of Cheque - quantum of sentence of imprisonment - section 138 of NI Act - HELD THAT - The revision petitioner / accused had made a voyage of two rounds before the Trial Court and the Sessions Judge's Court in the matter and prior to the remanding of the matter by the Sessions Judge's Court and subsequent to the remand of the matter also he was convicted and the same was confirmed. Therefore, the accused apart from not pleading guilty under Section 252 Cr.P.C. has made futile exercise from the year 2000 till date in proving his alleged innocence towards the alleged offence but he has failed in his repetitive attempts. There are no reasons for setting aside the sentence of imprisonment in toto. Considering the fact that at the earliest point of time when he was convicted for the first time in the same case by the Trial Court on 07.09.2006, he was sentenced to undergo imprisonment only for two months and also imposed with fine and in the impugned Judgment passed by the Trial Court, it has not given any reason for sentencing him to undergo simple imprisonment for one year and also considering the fact that even the Sessions Judge's Court also has not given its reasoning for confirming the said sentence of imprisonment, the said sentence of imprisonment of one year as simple imprisonment apart from payment of the fine amount is not proportionate to the gravity of the proven guilt against the accused. On the other hand, it is slightly exorbitant to the proven guilt. Therefore, considering the facts and circumstances of the case and also of the fact that the accused made two trips before the Trial Court as well as the Session Judge's Court and thus has made a futile exercise in ensuring the setting aside of his conviction which consequently has made the complainant to be deprived of the cheque amount for more than two decades, confining the sentence only to the fine amount would not meet the ends of justice and imposing the sentence of imprisonment is also warranted in the circumstances of the case - However, one year simple imprisonment imposed since being on the higher side, the circumstances of the case warrant confining it to two months simple imprisonment which was originally and at the earliest point of time imposed against him by the Trial Court in its Judgment dated 07.09.2006 and that would be reasonable. Though the Judgment of conviction for the offence punishable under Section 138 of the N.I. Act holding the accused / petitioner guilty of the alleged offence is confirmed, however, the Order on sentence is modified - petition allowed in part.

Summary

Issues:
Accused convicted under Section 138 of the Negotiable Instruments Act, 1881 challenges the sentence of imprisonment.

Analysis:
The accused was convicted for failing to repay a loan and issuing a bounced cheque. The complainant, who was the respondent, had lent money to the accused for his sister's marriage, but the accused did not repay the loan. The accused issued a cheque that bounced due to insufficient funds. The complainant sent a legal notice, but the accused still did not pay, leading to the complaint. The Trial Court convicted the accused under Section 138 of the N.I. Act, sentencing him to one year of simple imprisonment and a fine. The accused appealed, but the Sessions Judge's Court upheld the conviction and sentence. The accused then filed a revision petition challenging only the sentence of imprisonment.

The accused's counsel did not contest the conviction but sought leniency in the sentence. Citing a Supreme Court judgment, the counsel argued for setting aside the imprisonment while agreeing to pay the fine. The High Court noted the accused's willingness to pay the fine but focused on the imprisonment aspect. The Court referenced the Supreme Court's interpretation of Section 138 of the N.I. Act, emphasizing that punishment is not the primary objective when the accused pleads guilty.

The High Court reviewed the case history, noting the accused's previous conviction and unsuccessful appeals. Despite the accused's repeated attempts to prove innocence, the courts upheld his guilt. Considering the prolonged legal process and the complainant's long wait for repayment, the High Court found the one-year imprisonment excessive. The Court reduced the sentence to two months of simple imprisonment while maintaining the fine amount. The High Court's decision was to partly allow the revision petition, confirming the conviction but modifying the sentence to two months of imprisonment and one month's default imprisonment. The rest of the fine allocation remained unchanged, and the Court ordered the transmission of the judgment to the lower courts promptly.