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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 ..... . PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT] elaborated the object of bringing Section 138 of N.I. Act into statute and insertion of Section 138 to 142 of the N.I. Act by Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The Hon'ble Supreme Court held that in respect of offence of dishonor of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. If the punishment awarded in this case is tested with touch stone of the principles stated by the Hon'ble Supreme Court in the above referred decisions, it is evident that the sentence of imprisonment awarded by the trial court and confirmed by the first appellate court is not justified - In the case on hand, it is a monetary loss to the complainant/respondent. Therefore imposing the sentence of imprisonment will not serve any purpose. Keeping in mind the object and purpose for which the N.I. Act was amended, period of pendency of case, nature of transaction, the relationship of complainant and accused and in view of the discussions made above, in my considered view, the sentence of fine of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient' 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 statutory legal notice dated 16.1.2015. The said notice is served on the accused but accused failed to pay the amount. Hence, the complainant lodged the complaint for the offence under Section 138 of N.I.Act. 4. Thereafter, the complainant-respondent got examined himself as PW.1 and also examined two more witnesses as PWs.2 and 3 and got marked 11 documents as per Exs.P.1 to P.11. After recording the statement of accused-petitioner under Section 313 of Cr.P.C wherein, the accused denied the circumstances appearing against her in the evidence of complainant's witnesses. The accused examined herself as DW.1 and after hearing the arguments, learned trial Court Judge convicted the accused for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examination-in-chief and she has stated that there was no transaction with the complainant, but there was a transaction with brother of the complainant. She has taken only ₹ 30,000/- through his brother and issued cheque to the brother of complainant and she has given interest also. The said transaction took place in the year 2009-10. But the brother of the accused not returned the cheque in spite of request. Now this case is filed. In the cross-examination she has admitted that she is working at Harihar Court and she is not having contact with the complainant, she has given the cheque for taking ₹ 30,000/- from complainant's brother. She has stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1,50,000/-. But the trial Court imposed fine of ₹ 3,00,000/- and out of that awarded compensation of ₹ 2,00,000/- to the complainant and ordered ₹ 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 Court. The appellate Court while confirming the said judgment has even imposed cost of ₹ 10,000/-. In my considered view, awarding of compensation of ₹ 2,00,000/- when the cheque amount is ₹ 1,50,000/- appears to be reasonable considering the pendencey of the case. But directing ₹ 1,00,000/- to be paid to the State out of ₹ 3,00,000/- as fine appears to be not in commensurate with the nature of offence imposing fine in view of facts and circumstances of the case. 14. The Hon'ble Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., (2010) 5 SCC 663 elaborated the object of bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme 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 cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. In as much as the High Court did so, it committed no jurisdictional error........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had taken place. During this period there would be a lot of social and economic change in the status of the parties. Further, as observed by this Court in Kaushalya Devi Massand V. Roopishore Khore, (2011) 4 SCC 593, the gravity of complaint under N.I Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. In that view , in our opinion, in the facts and circumstances of the instant case, if an enhanced fine is imposed it would meet the ends of justice. Only in the event the respondent-accused not taking the benefit of the same to pay the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 3,00,000/- needs to be modified to the extent imposing sentence of fine only to the tune of ₹ 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 would be met by modifying order of sentence passed by the trial Court as well as setting aside imposing cost by the First Appellate Court. Hence, I pass the following: ORDER i) The revision petition is allowed in part. ii) The judgment of conviction dated 23.9.2019, passed by the Senior Civil Judge and JMFC Court, Harapanahalli, in C.C.No.252/2017, for the offence punishable under section 138 of the Negotiable Instruments Act, 1881, which is confirmed by the III Addl. District and Sessions Judge, Ballari, sitting at Hosapete, in Crl.A.N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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