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2016 DIGILAW 530 (HP)

Shyam Lal Chauhan v. Baldev Singh

2016-04-22

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This appeal under Section 378 (4) of the Criminal Procedure Code has been preferred against the judgment dated 25.6.2014 passed by learned Judicial Magistrate 1st Class, Nahan, District Sirmaur, H.P. in Cr. Complaint No. 87/3 of 2011 whereby the respondent was convicted and sentenced to undergo imprisonment till rising of the Court for an offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘Act’) and also to pay compensation of Rs.6,00,000/-, double of the cheque amount to be paid within thirty days with a prayer that the judgment passed by the learned Court below be set-aside and the respondent/accused be sentenced with actual imprisonment for commission of an offence under Section 138 of the Act. 2. The first and foremost question that arises for consideration is as to whether this appeal, that too, under Section 378(4) of the Criminal Procedure Code (for short ‘Code’) is legally maintainable in view of the fact that the respondent has not been acquitted but has been convicted and sentenced as aforesaid. 3. Section 378 (4) of the Code reads thus: “378. Appeal in case of acquittal. (1) to (3) xxx xxx xxx (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court”. 4. It would be evident from the aforesaid provision that an appeal under Section 378(4) of the Code can only be filed against an order of acquittal and not against an order of conviction or for seeking enhancement of sentence. Therefore, the appeal is not maintainable. 5. That apart, it would be seen that the appellant himself had approached the Court of learned Sessions Judge by filing an appeal under Section 372 Cr.P.C. but the same was voluntarily withdrawn on the ground that the same is not maintainable as would be evident from the order passed by the learned Sessions Judge on 10.9.2014, which reads thus: “The learned counsel for the appellant has stated that the appeal is not maintainable and he has instructions to withdraw the present appeal. Learned counsel for the appellant has prayed that certified copy of the judgment be returned to him. Prayer allowed. Learned counsel for the appellant has prayed that certified copy of the judgment be returned to him. Prayer allowed. Let certified copy of judgment be returned to the learned counsel for the appellant after retaining one photocopy of judgment on record. File be completed and consigned to the record room.” 6. Now, adverting to the merits of the case, it is vehemently argued by Mr. Rupinder Singh, learned counsel for the appellant that the learned Court below has erred in imposing a flea-bite sentence upon the respondent and should have convicted the respondent to undergo actual and substantive two years imprisonment in terms of the mandate of Section 138 of the Act. 7. Section 138 of the Negotiable Instruments Act, reads thus: “138 Dishonour of cheque for insufficiency, etc., of funds in the account. 7. Section 138 of the Negotiable Instruments Act, reads thus: “138 Dishonour of cheque for insufficiency, etc., of funds in the account. —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 any debt or other liability, is returned by the 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 provisions of this Act, be punished with imprisonment for a term which may be extended to two years, 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 thirty 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. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]” 8. It is evidently clear from the aforesaid provision that while sentencing the accused, the Magistrate can punish the accused with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of the cheque, or with both. It is evidently clear from the aforesaid provision that while sentencing the accused, the Magistrate can punish the accused with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of the cheque, or with both. But nowhere is it mandatory for the Magistrate to punish the accused with actual imprisonment even in case where he has already imposed a fine of twice the amount of the cheque. 9. That apart, unlike that for other forms of crime, the punishment under Section 138 is not a means of seeking retribution, but is more a means to ensure payment of money. This is because the complainant’s interest lies primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery as would be evident from the following observations made by the Hon’ble Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 , which reads thus : “4. It may be noted that when the offence was inserted in the statute in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the Act in 2002. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a ‘fine which may extent to twice the amount of the cheque’ serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions. 5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system. 17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5] : “... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were ‘compromised’ or ‘settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued." 10. In Kaushalya Devi Massand vs. Roopkishore Khore (2011) 4 SCC 593 , the Hon’ble Supreme Court again reiterated that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences, rather offence under Section 138 of the Negotiable Instruments Act, is almost in the nature of civil wrong which has been given criminal overtones as would be evident from the following observations: “11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.” 11. The learned Magistrate in its wisdom has imposed a fine twice the amount of the cheque, which in my considered view is sufficient to meet the ends of justice. Moreover, there are no special circumstances carved out by the appellant so as to call for any interference with the order of the Magistrate so as to alter and impose a more stringent sentence. Having said so, there is no merit in this appeal and the same is accordingly dismissed.