CRIMINAL REVISION APPLICATION NO.72 OF 2016

13th March 2019

Petitioner Counsel: Shri B.P. Bhatt
Respondent Counsel: Mrs. R.S. Dewani
Act Name: Negotiable Instruments Act, 1881

Section :
Section 138 Negotiable Instruments Act, 1881

Cases Cited :
Para 5: M/s.Meters and Instruments Private Limited and anr Vs. Kanchan Mehta, reported at AIR 2017 SC 4594

JUDGEMENT

1. The non-applicant/ original complainant filed a complaint bearing Summary Criminal Complaint No.10235/2006 for offence under Section 138 of the Negotiable Instruments Act, 1881 before learned Judicial Magistrate First Class at Nagpur. Learned 22nd Judicial Magistrate First Class at Nagpur vide judgment and order dated 20.10.2010 convicted the accused for offence under Section 138 of the Negotiable Instruments Act and directed to suffer simple imprisonment for 1 month and to pay a fine of Rs.10.00 lacs and in default of payment of the fine amount to suffer further simple imprisonment for 7 days. It was directed to pay Rs.9,70,000/to the non-applicant/complainant as compensation. Being aggrieved by the same, the accused preferred an appeal bearing Criminal Appeal No.315/2010. Learned 2nd Additional Sessions Judge at Nagpur vide judgment and order dated 18.4.2016 dismissed the said appeal. Hence, the accused filed the present revision application.

2. Heard learned counsel Shri B.P.Bhatt for the applicant (hereinafter referred to as, “the accused” for the sake of brevity) and learned counsel Mrs.R.S.Dewani for non-applicant No.1/original complainant.

3. Learned counsel Shri B.P.Bhatt for the applicant/accused submitted that the accused issued a cheque for royalty. He submitted that the Trial Court wrongly convicted the accused. Instead, he submitted that amount of fine of Rs.10.00 lacs is already deposited. He submitted that in view of provisions of Section 138 of the Negotiable Instruments Act, the present revision be allowed and operative part of judgment and order passed by learned Magistrate be modified.

4. Learned counsel Mrs.R.S.Dewani for non-applicant No.1/complainant supported the judgments and orders passed by learned Judge below. Though learned counsel states that the accused should undergo jail sentence, he submits that non-applicant No.1/complainant received amount of compensation of Rs.9,70,000/as cheque amount was of Rs.8.00 lacs.

5. The Honourable Apex Court in the case of M/s.Meters and Instruments Private Limited and anr vs. Kanchan Mehta, reported at AIR 2017 SC 4594 held that if matter is settled, amount of cheque is paid and complainant is not responding and not coming to the Court, the Court can close proceedings under Section 258 of the Code of Criminal Procedure.

6. Having heard submissions of learned counsel for the parties, I find that amount of fine is already deposited by the accused. The complainant has withdrawn compensation amount of Rs.9,70,000/.

7. Section 138 of the Negotiable Instruments Act, 1881 is reproduced 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 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. As per Section 138 of the Negotiable Instruments Act, accused can be sentenced to suffer with imprisonment for a term which may be extended to two years (after amendment) or with fine which may extend twice the amount of the cheque, or with both. Discretion is given to Court to use judiciously.

9. In the present case, the accused has already paid fine amount of Rs.10.00 lacs. The non-applicant No.1/complainant has also received amount of Rs.9,70,000/. Whereas, cheque amount was of Rs.8.00 lacs. Therefore, revision needs to be partly allowed. Hence, following order:
ORDER
(i) The criminal revision application is partly allowed.
(ii) Judgment of conviction under Section 138 of the Negotiable Instruments Act, 1881 is maintained. However, it is modified, order in respect of sentencing the accused to undergo simple imprisonment for 1 month is set aside.
(iii) Rest of operative part of the impugned Judgment and order dated 20.10.2010 in Summary Criminal Complaint No.10235/2006 is maintained.
The criminal revision application stands disposed of in aforesaid terms.