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2014 DIGILAW 1342 (MP)

Kamal Narayan Saini v. Rajkumar Bhavsar

2014-10-15

N.K.GUPTA

body2014
JUDGMENT : N.K. Gupta, J. Both the parties have filed the present criminal revisions against the common judgment dated 21.1.2012 passed by the First Additional Sessions Judge, Hoshangabad in Criminal Appeal No. 166/2010, therefore both the revisions are hereby decided by the common order. 2. The applicant of Criminal Revision No. 217/2012 and the accused in the trial was convicted of offence punishable under Section 138 of Negotiable Instruments Act (for short “N.I.Act”) and sentenced to six months' RI with fine of Rs. 5,000/- by the JMFC Itarsi vide judgment dated 26.7.2010 in Criminal Case No. 613/2004. In Criminal Appeal the conviction of the applicant-accused was maintained and sentenced was reduced to the period of three months' SI and rate of interest given on compensation @ 6% per annum. Being aggrieved with both the judgments, the applicant Kamal Narayan has filed the present criminal revision No. 217/2012. 3. The applicant of Criminal Revision No. 677/2012, complainant of the trial has preferred the present revision for enhancement of sentence, and therefore revision is preferred against the aforesaid judgments passed by the trial Court and the appellate Court. 4. The brief facts of the case are that the complainant-applicant and the accused-applicant had various transactions relating to building material and boring material. The accused-applicant had purchased various articles from the shop of the complainant and he issued two cheques of Rs. 30,000/- and 25,000/- on 26.8.1997 in favour of the complainant. When the cheques were submitted for their payment, those were returned with the note that the accused has instructed the Bank to stop the payment. The complainant had sent a notice of demand within the stipulated period but the payment of cheques was not tendered by the accused-applicant, and hence the complaint was filed. 5. The accused-applicant abjured his guilt and took a plea that nothing was due towards him and he was forced to append his signature on the blank cheques. He had also lodged a case of robbery against the complainant-applicant. In defence some documents were produced and Shankar (DW-1) and Ghanshyam (DW-2) were examined as defence witnesses. 6. The learned JMFC, Itarsi after considering the evidence adduced by the parties convicted and sentenced the applicant/accused as mentioned above, whereas the fate of appeal filed by the accused- applicant is also mentioned above. 7. I have heard the learned counsel for the parties. 8. 6. The learned JMFC, Itarsi after considering the evidence adduced by the parties convicted and sentenced the applicant/accused as mentioned above, whereas the fate of appeal filed by the accused- applicant is also mentioned above. 7. I have heard the learned counsel for the parties. 8. It was found by the trial Court that the accused-applicant did not sent a reply to the demand notice. His FIR relating to robbery was nothing, but an after thought act. If the applicant-accused was forced to append his signature on the blank cheques, then immediately he would have lodged an FIR at some police station having jurisdiction in the case. On the contrary, it was found that no sufficient sum was available in the bank account of the applicant-accused. Under these circumstances, the defence taken by the applicant-accused could not be established and it was found that he issued two cheques and thereafter the said cheques were dishonoured and after receiving the notice of demand, accused-applicant did not tender the amount of two cheques, and therefore the trial Court has rightly convicted the applicant-accused of the offence under Section 138 of the N.I.Act. 9. So far as the sentence is concerned, it would be apparent that the complainant was deprived with his money for a longer period. However, his criminal complaint was took effect when the prosecution evidence was led, and therefore he was entitled for penal interest on the sum of those two cheques from the year 2004. The trial Court has given higher rate of penal interest because the complaint was pending since the year 1997. Actually the delay was also caused by the applicant-complainant in prosecuting his complaint. He took so many opportunities to produce the prosecution evidence, and therefore the appellate Court was right in not providing the amount of interest at higher rate to the complainant. 10. After considering the evidence and looking to the facts and circumstances of the case, it would be apparent that the complainant should be provided an interest at the rate of 10% per annum for ten years so that he can get appropriate sum in lieu of his amount. The learned counsel for the complainant also commits his willingness that if the interest @ 10% per annum for ten years is granted, then the complainant- applicant would be satisfied. The learned counsel for the complainant also commits his willingness that if the interest @ 10% per annum for ten years is granted, then the complainant- applicant would be satisfied. The learned counsel for the applicant-accused has submitted that to show bonafide intention, the applicant-accused has deposited a sum of Rs. 1,11,000/- before the Additional Chief Judicial Magistrate, Itarsi in Criminal Case No. 613/2004 on 26.8.2014. Under these circumstances, it is a good case in which the jail sentence directed by the courts below may be removed and only fine/compensation of Rs. 1,11,000/- may be imposed so that the complainant may get such an amount as compensation. 11. On the basis of the aforesaid discussion, both the Criminal Revisions filed by the applicant and the complainant are hereby disposed off. The conviction directed against the applicant-accused of the offence under Section 138 of the N.I. Act is hereby maintained, but his jail sentence is hereby removed. The fine/compensation of Rs. 1,11,000/- in all is imposed upon the applicant-accused, which is already deposited by him before the trial Court and the entire amount of Rs. 1,11,000/- shall be provided to the complainant- applicant as compensation. 12. The learned counsel for the applicant- accused has submitted that the accused has deposited some more amount in the trial Court from time to time, however no such receipt could be shown to this Court. According to the order of this Court, the complainant would be entitled to get a sum of Rs. 1,11,000/-, and therefore if any more amount is found deposited from the side of the accused-applicant, then he would be entitled to get that surplus amount back. 13. A copy of this order be sent to both the Courts below for information and compliance.