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2006 DIGILAW 761 (BOM)

Afzal Ahmed v. Mohd. Faizan

2006-05-03

J.C.S.RAWAT

body2006
JUDGMENT: - This Criminal Revision has been directed against the judgment and order passed by the learned IInd Addl. Civil Judge (JD)/Judicial Magistrate Roorkee, Dist. Haridwar dated 27 - 3 - 2001 in Criminal Complaint Case No.12 of 2000, Afzal Ahmed Vs. Mohd. Faizan u/s.138 of the N.I. Act with fine of Rs.1,200/ - and in default of payment of fine an imprisonment for two months. 2. Brief facts leading to this revision are that a complaint was filed before the learned Judicial Magistrate u/s.138 of the N.I. Act alleging therein that the respondent No.1 had given a cheque of Rs.30,000/ - to the revisionist and the said cheque was dishonoured. Statutory notice was given but in spite of the notice, the amount was not paid hence complaint was filed before the learned Judicial Magistrate. The learned Magistrate took the cognizance and thereafter proceeded with the trial. After the conclusion of the trial, the learned Magistrate held that the prosecution had established the case against the accused beyond reasonable doubt and he convicted the accused u/s.138 of the N.I. Act and also awarded the sentence as indicated above. 3. Feeling aggrieved by the said order, the present revision petition had been preferred before this Court. 4. Heard Shri. S.P.S. Pan war, Sr. Advocate for the revisionist and Shri. Sohail Ahmed Siddique, learned A.G.A. for the State. In spite of the notice respondent No.1 has not appeared. 5. It was contended on behalf of the revisionist that considering the amount of the cheque and the circumstances of the case, the punishment awarded of Rs.1,200/ - was too meagre and it was further contended that the learned Magistrate should have awarded the punishment in proportion to the tune of the gravity of the offence. It was further contended that Section 138 of the N.I. Act provides the punishment to the extent of 2 years rigorous imprisonment and the fine may extend to twice the amount of cheque and both. The learned A.G.A. could not support the order of the learned Magistrate. It was also contended on behalf of the State that the learned Magistrate had given undue sympathy in the matter in favour of the respondent and it had caused the miscarriage of justice. The learned A.G.A. could not support the order of the learned Magistrate. It was also contended on behalf of the State that the learned Magistrate had given undue sympathy in the matter in favour of the respondent and it had caused the miscarriage of justice. It is well settled principle of law that the imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime particularly in the economic nature have great impact on the social order and public interest cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic a view which is against the social interest which needs to be cared for and strengthened by a string of deterrence in - built in the sentencing system and criminal jurisprudence. It is settled principle of law that Courts should award the sentence which reflects the need of society. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and it could create a serious threat to the society. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. The law ordinarily allows some significant discretion to the Judge or the Court in arriving at a sentence but that sentence should be awarded judiciously and not arbitrarily. While awarding the sentence the Court should see the interests of the complainant as well as the accused. There should be a balance in between the offence and the circumstances which has been pleaded by the accused. There should be no disbalance while awarding the sentence. The law regulates the social interests, arbitrates conflicting claims and demands security of the person and property of the people is an essential function of the State. It can be achieved through instrumentality of the criminal law. Protection of the society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. The law regulates the social interests, arbitrates conflicting claims and demands security of the person and property of the people is an essential function of the State. It can be achieved through instrumentality of the criminal law. Protection of the society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. After giving due consideration to the facts and circumstances of the each case for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which the offence has been committed are to be delicately balanced on the basis of really relevant circumstance in a dispassionate manner by the Court. 6. In the light of the above backdrop, I would like to analyze the facts of this case. The total amount covered by the cheque involved in this case is Rs.30,000/ - . There is no case that the case amount had been paid either during the pendency of the case and thereafter. Thus it is clear that the amount covered by the cheque remain unpaid till today. The learned Magistrate should have taken into account this aspect. The offence had been committed by not paying the amount of Rs.30,000/ - where the amount covered by the cheque remain unpaid during the trial which should be looked out by the trial Magistrate, i.e., sentence for the offence u/s.138 N.I. Act should be of such nature as to give proper effect of the object of the legislature. The very object of Section 138 N.I. Act would stand defeated if the sentence of the nature passed by the trial Magistrate is sustained. Particularly in case of 138 N.I. Act, the amount of the cheque involved and sentence of imprisonment and fine should be commensurate with each other. 7. Shri. S.P.S. Pan war Sr. Advocate for the revisionist relied upon the judgment of the Apex Court in Suganthi Suresh Kumar Vs. Jagdeeshan reported in AIR 2002 SC p.681 : [2002(1) ALL MR 936 (S.C.)]. The complaint was filed by the complainant u/s.138 Negotiable Instruments Act. The amount covered by the said cheque was over four lacs. The accused did not pay any amount till the hearing of the trial. Jagdeeshan reported in AIR 2002 SC p.681 : [2002(1) ALL MR 936 (S.C.)]. The complaint was filed by the complainant u/s.138 Negotiable Instruments Act. The amount covered by the said cheque was over four lacs. The accused did not pay any amount till the hearing of the trial. The learned Magistrate after holding the accused - respondent guilty of the offence convicted him only to undergo imprisonment till rising of the Court and pay a fine of Rs.5,000/ - . The Hon'ble Apex Court while setting aside the judgment passed by the trial Court observed that: - "12. The total amount covered by the cheque involved in the present two cases was Rs4,50,000/ - . There is no case for the respondent that the said amount had been paid either during the pendency of the case before the trial Court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee - bite sentence as had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light - heartedly. The very object of enactment of provisions like 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case. 13. Learned counsel for the respondent contended that the complainant has subsequently filed a civil suit and attached all the properties of the respondent. That is not a ground for lessening the gravity of the offence or to impose a minor sentence chosen by the trial Court." 8. In case the learned Magistrate find himself incompetent to pass the appropriate sentence, the Code provides the procedure u/s.325 Cr.P.C. which reads as follows: - “325. That is not a ground for lessening the gravity of the offence or to impose a minor sentence chosen by the trial Court." 8. In case the learned Magistrate find himself incompetent to pass the appropriate sentence, the Code provides the procedure u/s.325 Cr.P.C. which reads as follows: - “325. Procedure when Magistrate cannot pass sentence sufficiently severe.(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. (2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub - section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and is according to law." 9. It is also pertinent to mention here that the Magistrate had the power u/s.357(3) Cr.P.C. to award the compensation to the complainant. Even if the Magistrate is not competent to award the sufficient fine, he can award the compensation u/s.357(3). No limit is provided u/s.357(3) of Cr.P.C. A. Magistrate can award any sum as compensation. The Hon'ble Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another reported in (1999)7 SCC 510 : [1999(4) ALL MR 452 (S.C.)] held that (Para 30 and 31): - “If a Judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realized the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. But the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. The Supreme Court has emphasized the need for making liberal use of that provision. No limit is mentioned in the sub - section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding Rs.5,0001 - the Court has power to award compensation to be paid to the complainant." 10. The Hon'ble Apex Court in Hari Singh Vs. Sukhbir Singh reported in (1998)4 SCC 551 held that: “The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The Court may enforce the order by imposing sentence in default." 11. In view of the above, I am of the view that the sentence passed by the trial Court was too meagre to meet the ends of justice. The order of the learned Magistrate dated 27 - 3 - 2001 is set aside to the extent of sentence only. The matter is remanded to the learned Magistrate and the learned Magistrate shall hear both the parties once again in the matter of sentence only and pass suitable sentence in the light of the observation made above. 12. The revision is disposed of accordingly. 13. All applications pending in this case stand disposed of in terms of the judgment. Order accordingly.