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2024 (5) TMI 613
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....rief fact that gave rise to the present revisional application is that, on 20.06.2011 respondent no. 1 being complainant filed a complaint case being no. C/16014/2011 against the present petitioner, alleging that he provided financial assistance to the tune of Rs.250000/- to the petitioner/accused person to overcome his financial stringency. Subsequently, in discharge of his liability, the petitioner issued two cheques in favour of the respondent no. 1 for a sum of Rs.100000/- each. However, on presentation for encashment within the validly period, those cheques were dishonoured on 09.05.2011 with remark "Account Closed". Thereafter, respondent no. 1 issued demand notice upon the petitioner on 18.05.2011 asking him to pay the amount of dishonoured cheques. The petitioner received the notice on 23.05.2011 but did not pay the amount. The case was subsequently transferred before the Court of learned 19th Metropolitan Magistrate, Calcutta for trial and after conclusion of trial learned 19th Metropolitan Magistrate, Calcutta held the petitioner guilty for the offence punishable under Section 138 of N.I. Act and sentenced him to suffer S.I. for one month and also to pay compensation of R....
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....Lal Aggarwal vs Balram Luthra [2008(2) Bankmann 268 (Del)]. vi) Devendra Pundir vs Rajendra Prasad Maurya [2009(1) Bankmann 114 (Mad)]. vii) Raghu Lakshminarayanan vs Fine Tubes, [2007 All MR (Cri) 1738 (SC); (2007) 5 SCC 103]. viii) Dr. V. Bala Raju vs M/S Pashak Feeds Pvt. Ltd. and Anr. [2005(1) Bankmann 194]. ix) Dashrath Rup Singh Rathod vs State of Maharashtra, (2014) 9 SCC 129. 8. The demand notice has been duly served upon the accused/appellant and proved before the Trial Court and in spite of notice being duly served the cheque amount was not paid by the appellant herein. 9. From the evidence on record, this Court finds that the learned Trial Court has considered the materials and the evidence on record in accordance with law and, as such, the said order of conviction being in accordance with law requires no interference by this Court. 10. But the sentence passed by the learned Magistrate is modified to the extent that the substantive sentence of one month is set aside. That being so the sentence as to payment of compensation is to be modified. 11. Section 138 N.I. Act, lays down : - "138. Dishonour of cheque for insufficiency, etc., of funds in the accoun....
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....same was not preceded by imposition of any sentence. The case is remanded back to the Trial Court to pass necessary order only on the question of sentence and compensation in accordance with law without being influenced by the fact of the amount of compensation was reduced by the Appellate Court, which was not only otherwise wholly unjustified, but has been set aside by this Court. The Trial Court is further directed to take into consideration the ratio of the decision of the case of Mongilal v. State of M.P. reported in 2004 SCC (Cri) 1058 : 2004 Cri LJ 880 and in the case of Biswajit Chowdhury v. S.S. Distributors reported in 2002 (3) CHN 682." 14. In Somnath Sarkar vs Utpal Basu Mallick & Anr., AIR 2014 SC 771, decided on 7 October, 2013, the Supreme Court held:- "..................... We say so having regard to a three- Judge Bench decision of this Court in Damodar S. Prabhu v. Syed Babalal H. (2010) 5 SCC 663 where this Court briefly examined the object sought to be achieved by the provisions of Section 138 and the purpose underlying the punishment provided therein. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment....
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....n our judicial system." (emphasis supplied) We do not consider it necessary to examine or exhaustively enumerate situations in which Courts may remain content with imposition of a fine without any sentence of imprisonment. 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. In the absence of a challenge to the order passed by the High Court deleting the sent....
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.... Rs.20,000/- towards fine, making a total fine of Rs.1,00,000/- (Rupees one lac) out of which Rs.80,000/- has already been paid as compensation to the complainant, should suffice. The amount of Rs.20,000/- (Rupees twenty thousand) now directed to be paid shall not go to the complainant who is, in our view, suitably compensated by the amount already received by him. In the event of failure to pay the additional amount of Rs.20,000/- the appellant shall undergo imprisonment for a period of six months. With these words, I concur with the order proposed by Brother Vikramajit Sen, J." 15. In Tedhi Singh vs Narayan Dass Mahant, Criminal Appeal No. 362 of 2022 (arising out of SLP (Crl) No. 1963 of 2019), decided on 07th March, 2022, the Supreme Court held:- "12. However, we would think that in the totality of facts of this case the appellant has not established a case for interference with the finding of the Courts below that the offence under Section 138 N. I. Act stands committed by the appellant. We have been told that the amount of compensation in a sum of Rs.7 Lakhs which is relatable to the cheque amount has been deposited already in the Trial Court. However, we would think that ....