TaxTMI 
TaxTMI 
2018 (2) TMI 2057
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....2011 and 05.10.2011 for an amount of Rs. 4,50,000/- (rupees four lacs fifty thousand) each, issued by the petitioner to the respondent, were presented in the J&K Bank Ltd. branch concerned for encashment on 22.12.2011 in the J&K but same bounced for 'insufficiency of money' in the account of the petitioner. (ii) A demand notice has been served upon the petitioner on 29.12.2011. When the amount was not paid within the stipulated period, complaint under Section 138 of the N.I. Act was presented before the Court Judicial Magistrate, 1st Class, Anantnag. Learned Magistrate after recording statement of the complainant and one witness in support of the complaint, has issued the process, in response whereof petitioner had appeared before....
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....of justice in view of two impugned judgments is quite apparent and non-application of mind in passing the judgment impugned is also clear. Buttressing this contention, would submit that the petitioner, in fact, had borrowed an amount of Rs. 12/- lacs from the respondent, which contention is belied by the petitioner himself because in the proceedings recorded by the trial court after the issue of process, issue of two cheques, bouncing thereof and service of notice of demand is not denied by the petitioner. Instead petitioner had sought time for paying the amount back to the respondent. Even he had added that, in fact, he had obtained a loan of Rs. 12,70,000/from the respondent out of which he had already paid Rs. 5/- lacs, so according to h....
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....m, still he did not pay the amount, therefore, for default in making the payment, why he should not be punished. The petitioner has specifically answered as under: "He has issued two cheques for an amount of Rs. 9/- lacs in favour of the complainant. It is true that both the cheques were not encashed. the complainant had served him a notice. Thereafter complainant filed the complaint. In reality, he owed an amount of Rs. 12,70,000/to the complainant out of which he had paid back Rs. 5,30,000/to the complainant, so Rs. 5,40,000/are balance, some time may be granted for returning the amount." 4. The amount was not paid, therefore, complainant filed an application under Section 243 Cr.P.C. for passing the judgment. As against that applicati....
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....s been strictly followed i.e. Chapter XX of Cr.P.C. has been followed, there could be no requirement of following Section 17 of the Evidence Act. The argument advanced is accordingly repelled. 8. The next limb of argument of the learned counsel for the petitioner is that the Magistrate has imposed a fine of Rs. 3000 and the Appellate Court has wrongly enhanced the fine amounting to Rs. 7,70,000, which is not permissible. The submission is totally misplaced. Learned Additional Sessions Judge has not enhanced the fine, instead he has followed the mandate of Section 138 of N.I. Act. Section provides that if a person is convicted, he shall be convicted to a period which may extend to two years or with fine which may extend to twice the amount ....
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....mand shall be issued. Then a cooling off period of one month for filing the complaint has been prescribed, so that the amount is paid. Commission of other crimes is different to the crime covered by the Negotiable Instrument Act. In this connection para 17 of the judgment rendered by the Hon'ble Apex Court in the case titled "Damodar S. Prabhu v. Sayed Baba Lal H", reported in (2010) 5 SCC 663, is advantageous to be quoted: "In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Tackling an avalanche of cases (New Delhi: Universal ....
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....n v. Baby & Anr." reported in AIR 2012 SC 528. Para 15 of the judgment is relevant to be quoted: "15. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under section 357(1)(b) of the Code. Though a complaint under section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the ....