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2016 DIGILAW 284 (RAJ)

Ashok Kumar v. State of Rajasthan

2016-02-19

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. By way of this revision, the petitioner complainant has approached this Court being aggrieved of the judgment dated 11.02.2013 passed by the learned Additional Sessions Judge, Parbatsar in appeal whereby, the learned appellate court rejected the appeal filed by the petitioner complainant and affirmed the judgment dated 29.03.2012 passed by the learned Judicial Magistrate (First Class), Nawa City in Criminal Case No. 73/2009, whereby the respondent accused was convicted for the offence under Section 138 of the N.I. Act and instead of straight away sentencing him to imprisonment, the learned trial Judge extended the benefit of Probation of Offenders Act to the accused and also directed that the Demand Drafts deposited by him in the court towards the cheque amount and the interest accrued thereupon be handed over to the complainant. 2. Upon going through the judgment passed by the learned trial court, it is evident that the accused moved a compounding application before the trial court on 12.10.2011 annexing therewith cheque covering the due amount so as to repay the debt owed to the complainant and for closing the case through a compromise. The complainant opposed the application which was rejected and the cheque was returned to the accused. The accused filed a Misc. Petition No. 2590/2011 against such rejection. This Court, by order dated 05.12.2011, disposed of the misc. petition giving liberty to the accused to deposit two demand drafts for a sum of Rs. 1,00,000/- and Rs. 37,945/- respectively towards the cheque amount and the interest accruing thereupon at the rate of 10% per annum in the trial court. The complainant, however refused to accept the offer of the accused. The trial court, while deciding the case finally, held the accused guilty of the offence under Section 138 of the N.I. Act. Considering the fact that the accused had made a bona fide offer to repay the cheque amount with interest to the complainant, the trial court, directed that the demand drafts be handed over to the complainant after being renewed and simultaneously, extended benefit of Section 4 of the Probation of Offenders Act to the accused. The complainant did not rest satisfied with the said judgment and challenged it by filing an appeal which came to be rejected by the learned Additional Sessions Judge by judgment dated 11.02.2013. Now, he has approached this Court by way of the instant revision petition. The complainant did not rest satisfied with the said judgment and challenged it by filing an appeal which came to be rejected by the learned Additional Sessions Judge by judgment dated 11.02.2013. Now, he has approached this Court by way of the instant revision petition. 3. Shri Mohnani, learned counsel representing the petitioner vehemently contends that as the accused virtually confessed his guilt by depositing the cheque amount in the trial court. Thus, as per him, the courts below committed grave error in extending the benefit of Probation of Offenders Act to the accused. He urges that the judgments passed by the courts below should be set aside as being illegal and the accused be sentenced appropriately for the offence under Section 138 of the N.I. Act. 4. Per contra, Shri Kaushal Gautam learned counsel for Shri M.K. Garg representing the respondent accused, contended that the accused showed his bonafides before the trial court by offering the cheque amount to the complainant. The complainant, refused this genuine offer of the accused upon which, the accused was forced to carry the proceedings to the High Court by filing a misc. petition which came to be decided, as stated above. Immediately thereafter, two demand drafts towards the cheque amount and the interest accrued thereupon were deposited by the accused in the trial court. The complainant still did not relent and rejected the offer. Considering the offer made by the accused to be genuine and bona fide, the trial court passed the judgment dated 29.03.2012 convicting the accused and instead of passing sentence, extended benefit of the Probation of Offenders Act to the accused. He contends that the provisions of Negotiable Instruments Act do not prohibit application of the Probation of Offenders Act. The offence indisputably, is punishable with imprisonment of upto 2 years and therefore, there is nothing to prevent the trial court from extending the benefit of the Probation of Offenders Act to an accused convicted for the offence under Section 138 of N.I. Act, particularly moreso, when the accused respondent established his bonafides by offering to repay the cheque amount. He thus prays that the revision filed by the complainant is nothing but a tool of wreaking vengeance and should be dismissed with heavy cost. 5. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the impugned judgments. 6. He thus prays that the revision filed by the complainant is nothing but a tool of wreaking vengeance and should be dismissed with heavy cost. 5. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the impugned judgments. 6. The fact that the accused was eager to repay the amount owed to the complainant is manifest from the circumstance that he deposited a cheque for the due amount of the complainant with the trial court way back in the year 2011 along with a compounding application. The complainant, however, did not accept the offer of the accused on which, the accused carried the proceedings to this Court by filing the above misc. petition. This Court, permitted the accused to deposit the demand drafts towards the cheque amount with the trial court after applying interest thereupon. The complainant, still did not accept the enhanced offer given by the accused to the cheque amount and the interest accrued thereupon. It is true that mere offer of the accused to reimburse the check amount cannot be considered as obliging the complainant to compound the offence but the same would definitely have a bearing on the sentence to be passed. The action of the complainant in not accepting the offer of the accused to repay the cheque amount with the interest accrued thereupon, reflects that he was literally after the Sajlock's pound of flesh (derived from Shakespeare's 'Merchant of Venice'). The purpose and intention of the complainant in pursuing the proceedings in this manner, clearly shows that he is motivated obliquely and his bonafides are doubtful. The very purpose of the legislature for enacting Section 138 under the Negotiable Instruments Act was to ensure the smooth and quick settlement of monetary disputes arising from commercial transactions. The complainant however was not appeased by the offer made by the accused, appears to be and driven by a motive to somehow or the other, send the accused behind the bars rather than achieving the goal behind the statute. The statute does not prohibit that the provisions of Section 4 of the Probation of Offenders Act would not apply in cases under Section 138 of the N.I. Act. The statute does not prohibit that the provisions of Section 4 of the Probation of Offenders Act would not apply in cases under Section 138 of the N.I. Act. Since the offence is punishable with only 2 years imprisonment, the trial court would have to assign reasons for refusing to extend the benefit of this welfare legislation to a person convicted for such offence moreso, when the accused expresses the willingness to reimburse the complainant's dues in their entirety. 7. In the backdrop of these facts, this Court is of the opinion that the orders under challenge do not suffer from any illegality, irregularity or perversity so as to call for any interference. The complainant has indulged in deliberate misuse of process of criminal law in order to satisfy his own vengeanceful attitude. Thus, while rejecting the revision, a cost of Rs. 10,000/- is imposed on the petitioner complainant for filing the frivolous litigation. The cost shall be deposited by the complainant petitioner in the trial court within a period of six weeks from today. Upon the amount being deposited, the same shall be credited in the funds of the District Legal Services Authority. 8. The revision petition is dismissed with the above directions.