Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 454 (HP)

Naveen Kumar Chauhan v. Vipan Kumar

2025-03-22

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Petitioner-Naveen Kumar Chauhan has approached this Court, by way of revision, for setting aside the judgment dated 13.09.2012, passed by the learned Additional Sessions Judge (FTC) Hamirpur, H.P. (hereinafter referred to as the ‘Appellate Court’). 2. By way of the judgment dated 13.09.2012, the learned Appellate Court has dismissed the Criminal Appeal No.17/11, preferred by petitioner-Naresh Kumar Chauhan, against the judgment of conviction dated 25.05.2011 and order of sentence dated 31.05.2011, passed by the learned Judicial Magistrate First Class, Nadaun, District Hamirpur, H.P., (hereinafter referred to as the ‘trial Court’), in Complaint No.9 of 2006, titled as ‘Vipan Kumar versus Naveen Kumar Chauhan’. 3. Vide judgment of conviction and order of sentence as referred to above, petitioner-Naresh Kumar Chauhan has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’) and he has been sentenced to undergo simple imprisonment for a period of three months and to pay amount of Rs.38,500/-, as compensation to the complainant. 4. Parties to the lis are hereinafter referred to as, in the same manner, as were referred to, by the learned trial Court. 5. Brief facts leading to the filing of the present revision before this Court, as emerge from the record are as under:- 6. Complainant-Vipan Kumar has filed complaint under Section 138 of the NI Act, regarding Cheque No.639859, dated 25.08.2005, for a sum of Rs.25,000/- drawn on the Kangra Central Cooperative Bank Limited Manali, District Kullu, H.P. (hereinafter referred as ‘cheque in question’). 7. According to the complainant, parties are known to each other and due to cordial relations, on demand, complainant had paid Rs.25,000/-, and in order to return the said amount, a Cheque in question, amounting to Rs.25,000/-, as referred to above, was issued by the accused. The cheque in question, when presented for encashment, was dishonoured by the banker of the accused, on the ground that the person, who had issued the cheque, was not having sufficient funds, in his account. Thereafter, the complainant had issued statutory notice demanding the amount of cheque. Despite service of the notice of demand, neither the said notice was replied, nor the amount was paid. Consequently, complainant has filed the complaint, under Section 138 of the NI Act, before the learned trial Court. 8. Thereafter, the complainant had issued statutory notice demanding the amount of cheque. Despite service of the notice of demand, neither the said notice was replied, nor the amount was paid. Consequently, complainant has filed the complaint, under Section 138 of the NI Act, before the learned trial Court. 8. In the said complaint, after securing the presence of the accused, notice of accusation was put to him on 13.01.2009, to which, he had pleaded not guilty and claimed trial. Thereafter, the complainant was directed to adduce evidence. Consequently, the accused had led evidence. After the closure of the evidence of the complainant, the entire incriminating evidence appearing against the accused, was put to him, in his statement, recorded, under Section 313 of Cr.P.C., on 03.05.2010. The accused had denied the entire case, as set up against him. He had taken the plea that the complainant had manipulated the post dated cheque. In his defence, he has examined DW-1, Prem Chand. 9. Thereafter, the learned trial Court, after hearing learned counsel appearing for complainant, as well as, accused had convicted the accused, vide judgment of conviction dated 25.05.2011 and vide order of sentence dated 31.05.2011, he has been sentenced, as aforesaid. 10. Against the judgment of conviction and order of sentence, referred to above, the accused had preferred the appeal before the learned Appellate Court, which also been dismissed vide order dated 13.09.2012. 11. Now, the accused is before this Court, in criminal revision. The judgment of conviction and order of sentence has been sought to be set-aside, mainly, on the ground that the cheque in question was a security cheque, as such, there was no occasion for the learned trial Court to convict the accused, in this case. 12. The scope of revision has elaborately been explained by the Hon’ble Apex Court in a case , titled as State of Maharashtra versus Jagmohan Singh Kuldip Singh Anand and others, reported as (2004) 7 SCC 659 . Relevant paragraph-23 of the judgment is reproduced, as under:- “23. 12. The scope of revision has elaborately been explained by the Hon’ble Apex Court in a case , titled as State of Maharashtra versus Jagmohan Singh Kuldip Singh Anand and others, reported as (2004) 7 SCC 659 . Relevant paragraph-23 of the judgment is reproduced, as under:- “23. On this aspect, it is sufficient to refer to and rely on the decision of this court in Duli chand vs. Delhi Administration, [ AIR 1975 SC 1960 ], in which it is observed thus :- “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. " 13. In view of the above decision, now, this Court will proceed further to ascertain the fact, as to whether the defence, which has been taken, in this case, would be sufficient to rebut the presumption, which is in favour of the complainant. 14. The complainant by examining himself, in the Court, has deposed on the lines, upon which, he had filed the complaint. Apart from this, he has examined the bank official, who had proved that the cheque, in question, when presented for encashment, was dishonoured on the ground that the person, who had issued the cheque, was not having sufficient funds, in his account. 15. The learned trial Court, as well as, learned Appellate Court have rightly held that though the accused had taken the defence that the cheque in question was allegedly issued as a security cheque, however, mere taking of such plea, does not absolve the accused-petitioner from the liability for dishonour of the cheque, as provided under Section 138 of the NI Act. Consequently, no ground for interference by this Court, in the revision, is made out. 16. Now coming to the question of sentence, the accused, in the present case, has been directed to undergo simple imprisonment for a period of three months and to pay compensation of Rs. 38,500/-. Consequently, no ground for interference by this Court, in the revision, is made out. 16. Now coming to the question of sentence, the accused, in the present case, has been directed to undergo simple imprisonment for a period of three months and to pay compensation of Rs. 38,500/-. The law is good but justice is better. In the absence of any statutory law with regard to sentencing, it is the discretion of the Court to inflict the proper sentence upon the offender. The punishment must fit the crime. 17. The offence cannot be equated to any offence under I.P.C. The liability attached with Section 138 of the Negotiable Instruments Act has been given a criminal overtone with a view to make the compensatory mechanism more effective. 18. While judging the order of sentence, the following factors are liable to be considered by this Court, in the present case:- (i) The accused is first offender and; (ii) The compensation, as per the judgment of the trial Court, has been paid/deposited by the accused. 19. The nature and scope of offence punishable under Section 138 of the Negotiable Instruments Act has elaborately been discussed by the three Judge Bench of the Hon’ble Apex Court in P. Mohanraj and others vs. Shah Brothers Ispat Private Limited, (2021) 6 SCC 258 . The relevant para 45 of the judgment is reproduced as under:- “45. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.” 20. Under the Negotiable Instruments Act, no minimum punishment has been provided. As per provisions of Section 138 of the Negotiable Instruments Act, the punishment may extend to two years or with fine, which may extend to twice of the amount of cheque or with both. As mentioned above, the entire amount of compensation has been paid by the accused in this case. These facts have been mentioned in para 7 of the judgment. This factual position has not been disputed by the complainant. 21. Considering the fact that the entire amount of compensation has been paid by the accused, this Court is of the view that while deciding the quantum of punishment, this fact is liable to considered. Considering the said fact, the ends of justice would be met if the accused is sentenced to undergo punishment “till rising of the Court”. The order of sentence is modified accordingly. 22. With the above modification, the petition stands disposed of, so also the pending applications, if any.