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1996 DIGILAW 1168 (RAJ)

Mohd. Saied v. Ashish Kumar Agarwal

1996-10-10

P.K.TEWARI

body1996
JUDGMENT 1. - As both, the revision petition and misc. petition arise out of a criminal complaint filed by Ashish Kumar Agarwal against Mohd. Saied (Cr. Case No. 286/84) in the Court of Additional Civil Judge (Junior Division) and Judicial Magistrate No. 8 Jaipur City, they are being disposed of by this common order. 2. In short, the fact of the case are that Mohd. Saied (accused) purchased jewellery worth Rs. 60,000/- from the complainant Ashish Kumar Aggarwal on 12.2.94 and promised to pay the amount within two months, but he failed to make the payment within the stipulated period. Thereafter, accused issued two cheques of Rs. 10.000/- each in the month of June, 1994. The complainant, presented these cheques for payment to the concerning bank but both the cheques were dishonoured. Thereafter, giving required notice complainant Ashish Kumar filed a criminal complaint for the offence under Section 138 of Negotiable Instruments Act (hereinafter, to be referred as the Act) in the Court of Additional Civil Judge, (Junior Division) and Judicial Magistrate No. 8, Jaipur City. After trial, the accused Mohd. Saied was convicted and sentenced for the offence under Section 138 of the Act and was awarded one year's rigorous imprisonment and a fine of Rs. 3,000/-, in default of payment of fine, to further undergo two months' rigorous imprisonment. The accused Mohd. Saied preferred appeal against the conviction and sentence which was heard and decided by the learned Sessions Judge, Jaipur City. It appears from the judgment that accused appellant has not challenged his conviction under Section 138 of the Act but the arguments were restricted for extending the benefit of probation under the Probation of Offenders Act. But the learned Sessions Judge rejected the appeal on the ground that being a commercial transaction it is not proper to release the accused by extending the benefit of the provision of Probation of Offenders' Act. Hence, the accused has filed the revision petition court against the said judgment. 3. The complainant also filed a revision petition before the learned Sessions Judge for enhancement of fine on the ground that according to Section 138 of the Act fine can extend to twice the amount of the cheque whereas; the learned trial Court has only imposed a fine of Rs. 3,000/- which is inadequate. But this revision petition was also dismissed. Therefore, he has preferred misc. 3,000/- which is inadequate. But this revision petition was also dismissed. Therefore, he has preferred misc. petition against the said judgment under Section 482 Cr.PC.Revision 4. Learned counsel has submitted that the complainant has already filed a civil suit for the recovery of the amount which is pending in the civil court. Both the courts below have not considered the case of the accused for extending the benefit of provisions of Probation of Offenders Act in a right perspective. Reasoning given by them cannot be considered to be special reasons. The petitioner is entitled to be released on probation under Section 360 Cr.PC. or under Section 4 of the Probation of Offenders' Act.On the other hand, learned counsel appearing on behalf of the complainant has supported the reasons given by the courts below for not extending the benefit of probation. He has submitted that accused purchased jewellery worth As. 60,000/- and promised to pay the amount within the stipulated period but he failed to make the payment and issued two cheques which were dishonored, if such type of offenders are given the benefit of probation it would adversely affect the commercial transaction. He has also submitted that the courts below have given special reasons for not extending the probation to the accused. 5. Section 138 of the Act provides that he accused be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or both. It has been held in 1990 Cr.L.R. (Raj.) 322, Ram Kumar v. State of Rajasthan as under:- "A bare reading of Section 361 Cr.PC. will show that if the case of the accused is such which could have been dealt with either uts. 4 of the Probation of Offenders Act or under section. 360 Cr.PC. and if the court is not inclined to extend the benefit of probation, then the court must record special reasons for not having done so." 6. In the case of 'Ismail Khan and Others v. The State of Rajasthan' Cr Law Report (Raj.) 1986 P. 399 it has been held as under:- "Provisions of Section 360 CrPC. have been enacted to make the theory of reformative punishment more liberal than the provisions enacted under the Probation of Offenders Act which is evident by Section 361 Cr.PC. In the case of 'Ismail Khan and Others v. The State of Rajasthan' Cr Law Report (Raj.) 1986 P. 399 it has been held as under:- "Provisions of Section 360 CrPC. have been enacted to make the theory of reformative punishment more liberal than the provisions enacted under the Probation of Offenders Act which is evident by Section 361 Cr.PC. The section requires of the court to assign cogent reasons for not extending the benefit and it is essential, therefore, not only to take into consideration the provisions of Section 4 of the Probation of Offenders Act but also the provisions under Section 360 Cr.PC. before sentence is passed." 7. It has been held in the case Nag Singh v. The State of Rajasthan, reported in Rajasthan Criminal Cases 146 as under:- "Section 361 Cr.PC. is mandatory to the extent that if the case of accused can be dealt with under the provisions of the Probation of Offenders' Act or section 360 Cr.P.C. the court must apply its mind as to whether to deal with the case under these provisions or not. If it does not deal with the case as stated earlier, it must assign 'special reasons' in the judgment." 8. Therefore, it would be incumbent upon the courts below to assign the special reasons for denying the benefit of probation to the accused petitioner. Their Lordships of Hon'ble the Supreme Court have expressed in the case Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964 that 'special reason must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and circumstances in which the offence was committed." 9. In my opinion, the reasons assigned by the courts below for not extending the benefit of probation to the accused are not proper because offence under section. 138 always relates to a commercial transaction. There is no bar in the Act for extending the benefit of probation to an accused found guilty under Section 138 of the Act. Therefore, the provisions of Sections 360, 361 Cr.PC. are attracted. 10. In the present case, the complainant has already filed a civil suit for recovery of the amount. The accused has deposited Rs. 20,000/- in this court in compliance of the order dated 27.5.96. Therefore, the provisions of Sections 360, 361 Cr.PC. are attracted. 10. In the present case, the complainant has already filed a civil suit for recovery of the amount. The accused has deposited Rs. 20,000/- in this court in compliance of the order dated 27.5.96. He has already remained in jail for 12 days. There is nothing on the record to show that he has been convicted earlier in any other case, his antecedents or character are also not of such nature which debars him from the benefit of realising on probation, therefore, I am of the view that it is a fit case in which the accused should be given benefit of probation.Misc. Petition 11. The learned counsel has submitted that this case was tried by a Judicial Magistrate. According to Section 29(2) Cr.P.C. Judicial Magistrate has been authorised to impose a fine upto Rs. 5,000/- only whereas Section 138 of the Act provides that fine which may extend to twice the amount of the cheques. According to the learned counsel this case should have been tried by the Chief Judicial Magistrate and the steps under Section 325 Cr.P.C. should have been taken, if the Magistrate was of the opinion that he is not competent to impose the fine to the extent as provided under Section 138 of the Act. He has also submitted that the non-obstante clause contained in Section 142 of the Act says that complaint can be filed before the Metropolitan or Judicial Magistrate as the case may be. Therefore, the Judicial Magistrate is competent to impose fine exceeding As. 5,000/- but in this case the Judicial Magistrate under the impression that he is not competent to impose fine beyond Rs. 5,000/- has imposed fine of Rs. 3,000/- only. According to him, as the cheques were issued for As. 20,000/- the amount of fine should have been Rs. 40,000/-.I have gone through the order passed by the Judicial Magistrate. The fine of Rs. 3,000/- has not been imposed due to the reason that Magistrate of First Class is not empowered to impose a fine exceeding As. 5,000/- but on the facts of the case that the Magistrate was of the view that the sentence of one year's rigorous imprisonment and a fine of Rs. 3,000/- would meet the ends of justice. Under Section 138 of the Act it is not necessary to impose fine altogether. 5,000/- but on the facts of the case that the Magistrate was of the view that the sentence of one year's rigorous imprisonment and a fine of Rs. 3,000/- would meet the ends of justice. Under Section 138 of the Act it is not necessary to impose fine altogether. Section 138 of the Act runs as under : "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of an debt or other liability, is returned by bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless : (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier : (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 12. As far as power of the Judicial Magistrate, First Class is concerned, the learned counsel has placed reliance on the decision in the case K.P. Sahadevar v. T.K. Sreedharan, reported in 1996 Cr. 12. As far as power of the Judicial Magistrate, First Class is concerned, the learned counsel has placed reliance on the decision in the case K.P. Sahadevar v. T.K. Sreedharan, reported in 1996 Cr. Law Journal 1223 wherein, it has been held that Judicial Magistrate is empowered to impose a fine exceeding Rs. 5,000/- for the offence under Section 138 of the Act because Section 29(2) of the Code of Criminal Procedure is not applicable in view of non-obstante clause contained in Section 142 of the Act." Therefore, the Magistrate of the First Class is empowered to impose the fine which may extend to twice the amount of cheque. But it is not necessary that in each and every case fine be imposed and it should be twice the amount of cheque. It all depends on the facts of an individual case. In this case after due consideration on merit of the case Magistrate awarded fine of Rs. 3,000/- alongwith the imprisonment of one year. 13. Consequently, the revision petition filed by the accused Mohd. Saied is partly allowed, while maintaining the conviction under Section 138 of the Act, instead of sending him immediately to Jail, in the facts and circumstances of this case it is hereby directed that the accused petitioner shall be released on furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial court with an undertaking to keep peace for a period of one year and be of a good behavior and whenever he is called upon he will appear before the concerning Court. The bonds hall be furnished within a period of 15 days from today failing which the present revision petition shall be deemed to have been dismissed and the accused petitioner shall undergo sentence awarded to him by the courts below. The amount of As. 20,000/- deposited by the petitioner Mohd. Saied in this Court shall be paid to the complainant and this amount will be adjusted if any decree is passed against the petitioner by the civil court relating to the present transaction. The cr. misc. petition Ashish Kumar v. Mohd. Saied stands dismissed.Revision by Accused Partly Allowed-Cri. MISC. Petition Dismissed. *******