9911796707
TMI Blog2002 (10) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... t the learned Magistrate had found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act. He was convicted and sentenced to undergo simple imprisonment for a period of one year. 2. The complainant alleged that the revision petitioner/accused had issued Ext. P2 cheque to her for an amount of Rs. Three lakhs. The accused is the brother-in-law of the complainant. When the matrimonial life ran into rough weather, because of differences of opinion between the spouses, an agreement (Ext. P1) was executed between the concerned parties. At the time of settlement of the disputes Ext. P2 cheque for Rs. Three lakhs was allegedly issued by the accused/revision petitioner to the complainant. The said cheque when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly enforceable debt/liability. 2) The sentence imposed is at any rate excessive. 6. The signature in the cheque is admitted. Ext. P1 agreement is also admitted. As per Ext. P1 agreement Ext. P2 cheque had been issued on 13.2.1996 to discharge a liability. Documentary evidence clearly shows that Ext. P2 cheque was issued by the accused for the due discharge of a legally enforceable debt/liability. There is no merit in the contention, even if true, that the accused had no personal liability to the complainant. The only other contention is that the cheque was issued under threat, coercion and duress. No evidence is there to prove this contention. The conduct of the appellant after the admitted signing and issue of the cheque does not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant has been left high and dry without any-effective redressal of his genuine grievance. No direction for payment of compensation under Section 357 of the Code of Criminal Procedure has been issued it is complained. 10. Section 138 of the Negotiable Instruments Act reflects the anxiety of the Legislature to usher in a new healthy commercial morality among the polity through the instrumentality of the penal law. Here is a classic example where, as part of an attempt to evolve a healthy norm of commercial behaviour, the principle of social engineering through the instrumentality of the penal law is put into operation. What was, prior to the amendment of the Negotiable Instruments Act in 1988 only a moral or civil wrong has been trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose a substantive sentence of imprisonment on an offender under Section 138 of the Negotiable Instruments Act, considerable care must be employed to ensure that the term of imprisonment is not unduly and unnecessarily long. In the facts of the case I am of opinion that imposition of a sentence of imprisonment for one year is unnecessary. 11. I do further note that the courts below have not alertly perceived the plight of the complainant. Inspite of several binding precedents like Hari Kishan and State of Haryana v. Sukhbir Singh and Ors. (AIR 1988 SC2127) it is unfortunate that courts are not perceiving the necessity to compensate the victim. The plight of the third party to the crime cannot be ignored or overlooked by the system exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its payment of compensation only and that the amount due under the cheque cannot be reckoned as compensation for the purpose of Section 357(3) does not also appeal to me at all. According to me the expression compensation is used under Section 357(3) not in any technical sense, and must certainly include payment due to the victim under the cheque in respect of which the offence under Section 138 of the Negotiable Instruments Act is committed. It is unnecessary, considering the purpose which Section 357(3) has to serve, to import any special or technical meaning to the expression compensation used there. 15. The fact that powers under Section 138 are misused by unscrupulous money lenders is urged as a reason which should persuade th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the opinion that normally in a successful prosecution under Section 138 of the Negotiable Instruments Act a direction under Section 357 must follow. If there are sufficient and compelling reasons, the court must specify such reasons in the judgment and then only choose not to invoke the powers under Section 357 of the Criminal Procedure Code. All subordinate courts shall zealously ensure compliance with the above direction. 18. In the facts and circumstances of this case I am satisfied that imposition of a sentence of simple imprisonment for one month coupled with a direction under Section 357(3) of the Code to pay an amount of ₹ 3,10,000 as compensation to the complainant and a default sentence of simple imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
