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TMI Blog2022 (4) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... halli, alleging that the accused approached him for financial assistance to the tune of Rs. 1,50,000/- for seeking job to her daughter. The accused-petitioner requested the complainant-respondent to pay Rs. 1,50,000/- and accused-petitioner also agreed to pay the said amount within 4 months along with interest at the rate of 2% p.m on Rs. 100/-. So in this regard, petitioner gave a cheque dated 17.11.2014 drawn on State Bank of India, Harihar Branch. But as promised, the amount was not paid. The complainant-respondent requested the accused-petitioner to repay the amount, but she did not pay. Hence, he presented the cheque and the said cheque was returned with an endorsement as 'Funds Insufficient' along with a memo. The complainant informed the same to the accused and the accused asked him once again to present the cheque. Complainant again presented the cheque and again it was returned with the endorsement dated 05.12.2014 and 15.12.2014 as 'Funds Insufficient'. Again the cheque was presented at the request of accused, as she promised that she will deposit the amount in Bank. But again the said cheque was dishonored. Then the complainant got issued registered statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Canara Bank as PW.2 Mayank Agarwal, who has stated about giving endorsement Ex.P.2 to P.5. He has stated that the said endorsement is sent through his bank which he received from State Bank. PW.3 Lambodar Mishra is the Chief Manager who has stated about issuance of Ex.P.2 to P.5 endorsement from his bank. 8. Ex.P.1 is the cheque which shows that an amount of Rs. 1,50,000/- is mentioned in favour of the complainant. The date of cheque is 17.11.2014. It appears, complainant has presented the cheque on number of times. With last presentation of cheque as per the bank endorsement Ex.P.5 is dated 2.1.2015. Ex.P.6 is the legal notice. Ex.p.7 is the postal receipt and Ex.P.8 is the postal acknowledgment card. Admittedly the respondent has not replied to the said notice. Even in the statement recorded under section 313 of Cr.P.C. also he has not stated anything. The petitioner has produced Ex.P.9 order sheet in Execution Case No.4/2014. There is execution of decree filed against this accused by one Veeresh for recovery of the amount. Ex.P.10 is the execution petition. Ex.P.11 is the passbook of the account of the respondent. 9. Against this, the respondent/accused has given her examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other decisions and has rightly convicted the accused. The said order of conviction was challenged before the learned Sessions Judge and learned Sessions Judge relying on the decision of Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee, reported in (2001) 6 SCC 16, it has confirmed the conviction. Therefore it is evident that the conviction of the petitioner for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 is based on legally acceptable evidence. Therefore the conviction judgment by both the Courts is to be up held. 12. The learned counsel for the petitioner argued that the petitioner was working as attender, now she retired from service taking voluntary retirement and the purpose of loan is for domestic need and getting job to her daughter. It is not a commercial transaction and the cheque amount is only Rs. 1,50,000/-. But the trial Court imposed fine of Rs. 3,00,000/- and out of that awarded compensation of Rs. 2,00,000/- to the complainant and ordered Rs. 1,00,000/- to be paid to the State which is not in accordance with law and prays to modify it. 13. I have perused the judgment of conviction delivered by the trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court" 15. Further, the Hon'ble Supreme Court in the case of Somnath Sarkar v. Utpal Basu Mallick and another, (2013) 16 SCC 465, considered the situations in which the court may remain content with the imposition of a fine without any sentence of imprisonment. At paragraph No.15, the relevant portion reads as under: "15........ There is considerable judicial authority for the proposition that the courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risonment of six months and restricted into only fine and compensation was awarded. The Hon'ble Supreme Court at paragraph Nos.21 and 22 of the above decision, observed as under. 21. Having arrived at the above conclusion, it would be natural to restore the judgment of the Learned JMFC. Though in that regard, we confirm the order of conviction, we have given our thoughtful consideration relating to the appropriate sentence that is required to be imposed at this stage, inasmuch as: whether it is necessary to imprison the respondent at this point in time or limit the sentence to imposition of fine. As noted, the transaction in question is not an out and out commercial transaction. The very case of the appellant before the Trial Court was that the respondent was in financial distress and it is in such event, he had offered to sell his house for which the advance payment was made by the appellant. The subject cheque has been issued towards repayment of a portion of the advance amount since the sale transaction could not be taken forward. In that background, what cannot also be lost sight of is that more than two and half decades have passed from the date on which the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by the trial Court by awarding extra Rs. 50,000/- apart from the cheque amount of Rs. 1,50,000/- to the tune of total compensation of Rs. 2,00,000/-, but directing Rs. 1,00,000/- to be paid to the State as fine is not in consonance with the decisions and the object of imposing sentence in Negotiable Instruments Act, 1881 cases as referred above. Apart from that when there is a statutory right conferred on the party to prefer appeal dismissing the said appeal by the learned Sessions Judge by imposing cost is also not correct. Therefore, keeping in mind the object and purpose for which the Negotiable Instruments Act is amended, the period of pendency of the case, nature of allegation and the relationship of the parties and also in view of the discussion made above, in my considered view the sentence of fine of Rs. 3,00,000/- needs to be modified to the extent imposing sentence of fine only to the tune of Rs. 2,05,000/-. This will meet the ends of justice. 20. Therefore, in view of the facts and circumstances of this case the evidence placed before the Court and the decisions of the Hon'ble Supreme Court referred supra and the discussions made above, the ends of justice woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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