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TMI Blog2018 (6) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 3,61,838/- from the complainant against various bills/invoices on different dates, as detailed in the complaint, bills/invoices whereof, bear his signatures. On 30.05.2010, the accounts were settled and total amount of ₹ 3,61,838/- was found due against the accused. The accused in order to discharge his liability issued two cheques No.001172 of 30.05.2010 amount to ₹ 50000/- of the ICICI Bank, Solan and cheque No.001173 of 1.6.2010 amounting to ₹ 3,11,838/-. The accused assured the complainant that the cheque will be encashed on presentation. However, the cheque bearing No.0011072 of 30.05.2010 amounting to ₹ 50000/- on presentation stood returned to the complainant along with memo of 20.11.2010 with endorsement insufficient funds'. It is submitted that the complainant intimated this fact to the accused, who requested the complainant that he was facing financial crunches in these days and requested to present the said cheque after some time. The complainant again presented the cheque in his account and his banker forwarded the cheque for collection to ICICI Bank, Solan but the cheque was again dishonoured due to the reason of funds insufficient. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderable force and vigour, contended qua the findings of conviction recorded by the learned Courts below, standing based, upon a mature and balanced appreciation, by them, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. The contention, reared, by the learned counsel appearing for the petitioner, is, rested upon (a) of with the complainant, vis-a-vis, the amount borne, in, the dishonoured negotiable instrument, instituting a civil suit, for its recovery, before, the learned Civil Judge (Sr. Division), Court No.1, Kasauli, suit whereof stood, registered as Civil Suit No.01/01 of 2012, and, with the learned trial Court rendering thereon, an affirmative decree, borne in Ex. Dx-1, AND, thereafter, as reflected by Ex. Dx-2, the money decree rendered in Civil Suit No. 01/01 of 2012, being satisfactorily executed, (b) hence, thereupon, with, the entire amount, borne, in the dishonoured negotiable instrument being fully satisfied, and, realized by the respondent/comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o determination, of appropriate compensation, the courts, above, the trial court, being also empowered, to make an order, for compounding, the offences, arising, from the dishonour, of, negotiable instrument; (b) of the learned trial Magistrate upon being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused , phrase whereof, occurring, in relevant sub para (iii), of the verdcit (supra), carrying, obviously the apt signification (a) of, the courts hence encouraging, composition of offence(s), at the initial stage; (b) of courts superior, to, the trial Court, being vested with jurisdiction, to order for composition of the apt offence, subject to determination of an appropriate compensation, vis-a-vis, the complainant, and, (c) of the empowerment, for closing the proceedings, arising, from cognizance being taken, upon, the complaint, by the Magistrate concerned, and, thereafter qua discharge, of, the accused, being also empowerments rather solitarily vesting, in the trial court concerned, (d) especially, when the order(s), qua closure of proceedings, after cognizance being taken, on, the complaint, and, order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent, to the institution, of the apposite complaint, (b) and, his rearing an acid contest therein; (c) the mere factum, of his, rather rearing an acid contest, vis-a-vis, the plaintiff's suit, for recovery of money, rather erodes the substratum, of his espousal, of his holding conciliatory overtures, to the respondents/complainant, and, also overrides, all the effect of all his propagations, of, realization(s), through, coercive processes, from, his assets, the amount borne, in the dishonoured negotiable instruments, being construable or tantamounting, to be compository/conciliatory realization(s), hence occurring inter se him, and, the complainant. More so, even when without, his hotly contesting, the apposite civil suit, he could well have made an apt tenable endeavour, before, the learned trial Magistrate, for composition of the offences, (d) whereas, contrarily, his contesting, the civil suit, renders him disabled, to derive any capitalization therefrom nor in garb, of, coercive execution, of the decree of the civil court, vis-a-vis, the amounts, borne in the dishonoured negotiable instrument, he is enabled , to, contend, that per se thereupon, an apt amicable composito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of the case, we are of the opinion that it is not possible to interfere with the concurrent finding of fact regarding finding of guilt recorded against the appellant. Thus, no interference is warranted against the order of conviction. The only question that must receive our attention is about the sentence awarded to the appellant. 5. Having regard to the fact that the appellant has already deposited the compensation amount of ₹ 6 lacs and also the fine amount of ₹ 10,000/-, what remains is to undergo simple imprisonment for 2 months. We find that the Trial Court while awarding the sentence of 2 months has not considered the plea which has been urged before this Court as adverted to in the preceding paragraphs of this order. Neither the Revisional Court nor the High Court has considered the same. The appellant is the only earning member in the family and her source of income is also very nominal, barely enough to maintain herself and her family members and if she undergoes simple imprisonment for a period of two months, then she may end up losing her service, which is the only source of income for the family. (p.251-252) wherein, in P. Ramdas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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