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2019 DIGILAW 540 (BOM)

MUSHTAQ AHMED v. KRISHNAKUMAR

2019-02-26

M.G.GIRATKAR

body2019
JUDGMENT : M.G. Giratkar, J. 1. The only short point in this revision raised by the applicants/complainants is that trial Court not granted any compensation though the accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. None appears for the non-applicant/accused. 3. The applicants/complainants were to receive Rs. 80,000/-from the accused and, therefore, accused issued cheque of Rs. 80,000/-. Learned Judicial Magistrate First Class, Nagpur convicted the accused and sentenced to suffer simple imprisonment for three months and to pay fine of Rs. 2,000/- in default to suffer simple imprisonment for 15 days. The intention of the Act is to be seen though there is discretion left to the Court while awarding sentence. Discretion be used judiciously. 4. Section 138 of the Negotiable Instruments Act reads as under :- 138. Dishonour of cheque for insufficiency, etc., of funds in the account. 2,000/- in default to suffer simple imprisonment for 15 days. The intention of the Act is to be seen though there is discretion left to the Court while awarding sentence. Discretion be used judiciously. 4. Section 138 of the Negotiable Instruments Act reads as under :- 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 provision of this Act, be punished with imprisonment for [a term which may be extended to two year], 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. 5. Learned counsel for the applicants has pointed out decision in the case of Ramchandra s/o Raju Gaud Vs. Explanation - For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 5. Learned counsel for the applicants has pointed out decision in the case of Ramchandra s/o Raju Gaud Vs. Vishal s/o Ambadas Deshmukh reported in, (2007) AllMR(Cri) 773. It is held by this Court as under : - Negotiable Instruments Act S. 138 - Dishonour of cheque Compensation. Mere sentence of conviction or putting particular accused in jail will not serve the purpose and object of the N.I. Act. The money paid must be received back by the person within the stipulated time and/or as early as possible. While passing the orders by Chief Judicial Magistrate in such matters, the concept of compensation and fine needs to be considered for achieving the purpose as contemplated u/s. 138 to 147 of the N.I. Act. 6. As per the above cited judgment, sending the accused in jail for dishonour of cheque will not serve the purpose of the Act. The Court has to keep in mind the provisions of Section 357 of the Code of Criminal Procedure. As per Section 357, the Court has to award compensation in a suitable case. Once it is proved by the side of complainant that cheque was dishonoured, then it was for the trial Court to award compensation to the complainant. Learned trial Court as well as first appellate Court not taken into consideration the provisions of Section 357 of the Code of Criminal Procedure. Hence, following order. ORDER : (i) Revision is partly allowed. (ii) Judgment is maintained as it is. Only operative part of the order is modified as under :- Accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. He shall pay compensation of Rs. 80,000/-to the complainants/applicants within a period of 15 days from the date of this order. If he fails to pay the amount of compensation then he shall undergo imprisonment for a period of one month. (iii) The revision is disposed of accordingly.