Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 279 (BOM)

Philomena Rebello v. Maria Tereza Pinto

2009-03-02

N.A.BRITTO

body2009
JUDGMENT :- These revisions could be conveniently disposed of by this common judgment as they arise from cases arising from a common transaction between the parties. 2. The dispute between the parties arises from dishonour of two cheques given by the accused. The first was for Rs.50.000/- dated 30/01/2005 and the second was for Rs.42.600/ - dated 5/02/2005. 3. The case of the Complainaant was that the Complainant had advanced some money to the accused to send her son Joston Pinto abroad for service and towards refund of the said Slim, the accused had issued the said cheques and both the cheques when presented for payment were dishonoured on account of insufficient funds in the account of the accused. The Complainant. therefore. addressed demand notices dated 16/02/2005 and, although the accused received the same, the accused did not comply with them. The Complainant examined herself in support of her case. So did the accused. 4. The case of the accused was that the sum given by the Complainant, the accused gave it to Sanjiv Anand and the latter had given two cheques of Rs.25,000/- each to her and upon encashment of the same, the cheques issued to the Complainant would have been honoured. According to her, since the cheques given by the said Sanjiv Anand were dishonoured, the cheques issued by her to the Complainant also got dishonoured. It is the case of the accused that the said Sanjiv Anand had only two cheque leaflets and had promised that he would send the balance of Rs.42.600/- to her from Mumbai. 5. The learned trial Court meticulously examined the defence taken by the accused and found that the same was an after thought. Conflicting picas taken by the accused in the reply flied by her to the Complainant's notice, which otherwise, the Complainant had slated, she had not received, were examined by the learned trial Court with reference to the different suggestions Put in the cross-examination of the Complainant. The learned trial Court also took note of the fact that the said Sanjiv Anand was not examined by her in support of a defence, in as much as, the cheques namely Exhibit 34 and Exhibit 35 given by him were dishonoured even before the subject cheques were issued by the accused to the Complainant. 6. The learned trial Court also took note of the fact that the said Sanjiv Anand was not examined by her in support of a defence, in as much as, the cheques namely Exhibit 34 and Exhibit 35 given by him were dishonoured even before the subject cheques were issued by the accused to the Complainant. 6. The Complainant had categorically stated that the Complainant did not know the said Sanjiv Anand and, therefore, the accused ought to have examined the said Sanjiv Anand to explain under what circumstances the cheques were given by him to the accused, Merely stating that she did not know the address of the said Sanjiv Anand could not have been the sufficient explanation, A person who had dealings with another person who had given the cheques to her was expected to know the address of such a person, There was no explanation as to why two cheques were given by a person who was running short of leaves, The learned trial Court therefore held, and in my view rightly, that the plea of the accused was an afterthought. 7. The learned First Appellate Court noted that the accused had admitted that the cheque was issued towards discharge of part of the liability, There was no dispute that the subject cheques were given by the accused and likewise the accused had also admitted that she was an agent for sending persons abroad, 5 years back, Considering the facts of the case, once the accused had admitted that she used to send persons abroad and had issued the subject cheques in favour of the Complainant towards repayment of the amount received by her from the Complainant, the accused had failed to rebut the presumption which was available to the Complainant in terms of Section 118 as well as 139 of the Act The learned first appellate Court also referred to the judgment of LC.D.S, Ltd. V s. Beemna Shabeer & Anr. ( AIR 2002 SC 3014 : [2002(4) ALL MR 270 (S.C.)]) and observed that the accused could not be exonerated of penal action only because the liability was of some third person, 8. ( AIR 2002 SC 3014 : [2002(4) ALL MR 270 (S.C.)]) and observed that the accused could not be exonerated of penal action only because the liability was of some third person, 8. The learned Counsel on behalf of the petitioner/accused contends that the subject cheques were issued towards the liability of the Complainant's son and, therefore, the said Complainant's sun ought to have been examined in support of the complaint This submission cannot be accepted first time in revision for the simple reason that the Complainant had categorically stated and it was not denied by the accused that money was advanced to the accused in order to show that she can arrange to send her son abroad, In this case, therefore, the liability of the accused was towards the Complainant herself and, therefore, not the Complainant's son, 9. Next point urged by learned Counsel appearing on behalf of the petitioner is as regards the sentence imposed, The accused was separately tried in two cases, namely, in one case for dishonour of cheque of Rs.42,600/ - and, in the other, for the cheque of Rs.50,000/ -. In each of the cases, the accused has been sentenced to undergo SI for a period of 2 months and, in addition, has been ordered to pay compensation to the Complainant in the value of the cheque amount and, in default to undergo SI for 15 days. It is not stated whether the judgments in both the cases are of the same date, but, it is not stated whether the said sentences would run concurrently. There is no dispute that at the time of the appeal, the accused had deposited 50% of the amount due on cheques in both the cases and before this Court the balance of 50% was deposited at the time of suspension of sentence. 10. Shri. Menezes, learned Counsel appearing on behalf of the petitioner/accused therefore submits that whatever was due to the Complainant under the said cheques has now been deposited by the accused and, considering that, this revision should be disposed of by ordering the accused to pay only a higher compensation than the amount which has already been deposited. 11. Before this Court, the cases were adjourned from time to time to enable the parties to arrive at a settlement. 11. Before this Court, the cases were adjourned from time to time to enable the parties to arrive at a settlement. It appears that the Complainant was agreeable to compound the offence, in case the total amount of Rs.1.72.780/- was paid to the Complainant. which according to the Complainant included Court expenses to the tune of Rs.52,400/-. plus interest of Rs.27.780/- at the rate of l0%. However, those terms were not agreeable to the accused and on behalf of the accused. it was submitted that the accused would be in a position to pay at the most an additional sum of Rs.20.000/- towards interest as well as the expenses which the Complainant might have incurred in prosecuting the complaints. 12. Counsel on behalf of the petitioner/accused has also placed reliance on the judgment of this Court dated 22/08/2007 in Criminal Writ Petition No.583/2007 in the case of Jeetendra Anthony Fernandes V s. Hathway Cable & Datacom Pvt. Ltd. and Anr. (2008(2) LJ SOFT 171 : [2008 ALL MR (Cri) 1262]). In this case, the balance payment to be made by the employee to the employer was Rs.24,871 and. considering that the employer would be entitled to interest, which may not be at the market rate, this Court ordered an amount of Rs.35.000/- to be paid by the accused in lump sum to the said employer and treated the case as compounded under Section 147 of the Act. Reliance is also placed on the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani & anr. ( AIR 2000 SC 2946 : [2001(1) ALL MR 525 (S.C.)]). In this case. the amount of the cheque along with accrued interest was ofRs.3,94,243.33 and was paid and therefore the Hon'ble Supreme Court chose not to send the accused back to jail and the sentence of imprisonment of six months was substituted with the imposition of fine of Rs.5.000/- to be deposited within two months. Counsel on behalf of the petitioner concedes that the judgment does not disclose as to the period of imprisonment which the accused had undergone in the said case. 13. Considering the facts of the case at hand, it is to be noted that the Complainant's son did not only get the job but had to wait for almost 4 years to get back the amount paid by the Complainant to the accused. 13. Considering the facts of the case at hand, it is to be noted that the Complainant's son did not only get the job but had to wait for almost 4 years to get back the amount paid by the Complainant to the accused. The Apex Court, time and again, has reminded us that the sentence to be imposed cannot be a flea bite and it has to have its desired effects mcluding the objects of the Act to be achieved. The civil suit for the recovery of Rs.92.000/- is stated to be pending between the parties, Chapter 17 of the Act was incorporated with a view to encourage the culture of use of cheques and to enhance the credibility of instruments when punishment provided of one year was found to be inadequate. it was enhanced to two years or with fine which may extend to twice the amount of cheque or with both. As George Saville would say "men are not hanged for stealing horses but that horses may not be stolen". There is no formula of fool proof nature to be followed in awarding appropriate sentence. It should be proportionate to the offence committed. It is not only the rights of the offenders which are required to be looked into but also those of victims as well as society at large considering also the object sought to be achieved by the Act. 14. Considering the facts and circumstances of the case, including the fact that the amount has now been deposited, in my view, there is scope for increasing the compensation payable and decreasing the sentence imposed. The sentence imposed by the learned Magistrate in each of the cases would now stand reduced to 15 days SI to run concurrently and compensation payable enhanced to another sum of Rs.15,000/- in both cases and, in default, the accused shall undergo SI for one month. With the above observations, both the revision petitions are disposed of and, accordingly, the sentence is modified. The Complainant is at liberty to withdraw the amount deposited before this Court. The Complainant is at liberty to apply to the trial Court/first appellate Court to withdraw the said amount deposited. Petition disposed of.