Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 1197 (GAU)

Palash Bharali v. State of Assam

2019-11-06

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. S. Borthakur, learned counsel for the petitioner and Mr. H.A. Ahmed, learned counsel for the respondent No. 2. State is a formal party. 2. The present petitioner filed a complaint before the learned Addl. CJM, Barpeta alleging inter-alia that the accused purchased a tractor from the showroom of the complainant, namely, M/s Bharali Automobiles on 22.03.2014 and since then they grown friendly relationship and after one year of purchasing the tractor, the accused approached the petitioner for a loan of Rs. 1,50,000/- and out of such friendly relationship, the petitioner paid the same to the accused on 11.5.2015 and the accused-respondent also promised to return the same within one month. As the accused-respondent did not return the money as promised, so on the request made by the petitioner, the respondent issued a cheque amounting to Rs. 1,50,000/- on 11.5.2015 but the same was dishonoured by the bank and hence after service of due legal notice, a complaint was filed under Section 138 of NI Act. 3. The accused-petitioner faced the trial and denied the charge. The petitioner adduced evidence in support of his case but the defence adduced no rebuttal evidence. At the conclusion of trial, the learned trial court found the accused guilty under Section 138 NI Act and sentenced him to simple imprisonment for 3 months and to pay fine of Rs. 2 Lakhs, in default of payment of fine, simple imprisonment for 1 month with further direction that the fine amount, if recovered, be awarded to the complainant as compensation under Section 357(b) Cr.P.C. vide its order dated 18.12.2017. 4. On appeal so preferred, the learned appellate court while maintaining the conviction in para-15 of the judgment held that the trial court has awarded the sentence of imprisonment to the accused as well as fine of Rs. 2 Lakhs which seems to be double punishment to the accused. It was held that the accused has been burdened with imprisonment as well as fine of Rs. 2 Lakhs, which appears to be harsh on the circumstances of the case and thus the appellate court sentence the accused to simple imprisonment for 6 months and set aside the award of sentence of fine of Rs. 2 Lakhs, vide its order dated 21.02.2019. 5. 2 Lakhs, which appears to be harsh on the circumstances of the case and thus the appellate court sentence the accused to simple imprisonment for 6 months and set aside the award of sentence of fine of Rs. 2 Lakhs, vide its order dated 21.02.2019. 5. The said order of appellate court was not challenged by the accused-respondent but the complainant has come forward with the present revision under Section 401/397 Cr.P.C. challenging the findings of the appellate court of setting aside the award of sentence of fine of Rs. 2 Lakhs and has contended that the findings of the appellate court is erroneous while modifying the order of the trial court whereas the trial court has rightly appreciated the facts and circumstance of the case and gave direction to pay compensation to the petitioner. 6. Accordingly, a prayer has been made to set aside the order of the appellate court and to reaffirm the judgment and order of the trial court so that the petitioner will get justice and his grievance can be redressed. 7. Learned counsel for the petitioner has contended that unless he is compensated in terms of money along with substantial sentence to the accused, he will suffer irreparable loss and he is now not in a position to recover the amount as no civil case was preferred. 8. Learned counsel for the respondent has also admitted that he has not preferred any appeal against the concurrent findings of conviction because of poor condition of the respondent and he is ready to pay the fine amount and he may be exonerated from the substantial sentence as in case of such conviction his whole family will be in jeopardy. In view of the background of the case where conviction is not challenged by the accused- respondent, this Court will not discuss about the merit of the case and will discuss the limited aspect that has been raised in the present petition that whether only order of substantial sentence will serve the ends of justice? 9. In the present case, the cheque amount was Rs. 1,50,000/- and it is reasonably hard earned money of the complainant which he paid to the respondent in his time of distress on his assurance to return the money within one month but the accused did not return the money. 10. 9. In the present case, the cheque amount was Rs. 1,50,000/- and it is reasonably hard earned money of the complainant which he paid to the respondent in his time of distress on his assurance to return the money within one month but the accused did not return the money. 10. Hon'ble Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 , has briefly examined the object sought to be attained under Section 138 NI Act wherein unlike other punishment, Section 138 NIT Act is meant more to ensure payment of money rather than to seek retribution. 11. Similar view is reiterated in R. Vijayan vs. Baby and Others, (2012) AIR SC 528 which has also deal with the matter with the following words: "12......Though the complainant-appellant has succeeded in obtaining a conviction, he has virtually lost in the sense he did not get compensation to recover the amount of the dishonoured cheque. As the limitation for filing a civil suit expired during the pendency of the appeal before the sessions court, the appellant has also lost the opportunity of recovering the amount by way of civil suit. 14. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under section 357(1)(b) of the Code. Though a complaint under section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under section 357 (1)(b) of the Code and the provision for compounding the offences under section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary. 17. One other solution is a further amendment to the provision of Chapter XVII so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the Act, which is to increase the credibility of the instrument." 12. Aforesaid proposition was also followed in subsequent decisions rendered by the Hon'ble Supreme Court like in Mainuddin Abdul Sattar Shaikh vs. Vijay D. Salvi, (2015) Cri. L.J. 3618 and N. Parameswaran Unni vs. G. Kannan and Another, (2017) 5 SCC 737 . 13. In a recent decision of Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197 , Hon'ble Supreme Court has reaffirmed the above proposition set forth in R. Vijayan (supra) that the object of the provision under Section 138 N.I. Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. Hon'ble Apex Court also expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. 14. The proposition of law which emerges from the judgments referred to above is that awarding punishment by the traditional view in a proceeding under Section 138 of N.I. Act is not the mandate of law under the N.I. Act. 15. In view of above, in my considered opinion, the learned trial court has erred in law in holding that the accused person is burdened with imposing sentence as well as payment of fine which is harsh and thereby awarded substantive sentence of imprisonment without awarding any fine or compensation. Accordingly, modifying the judgment of the appellate court, sentence under Section 138 N.I. Act is now converted to fine only. The accused- respondent is hereby directed to pay a fine of Rs. 2 Lakhs (as has been held by the trial court) and to pay the fine amount within a period of 2 months before the learned trial court, in default, to undergo imprisonment for 6 months. The amount of fine, if realized, be given to the complainant/respondent as compensation. 16. With the above modification, this petition stands disposed of.