HONBLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL APPEAL No.485 OF200604-06-2014 Om Prakash Agarwal.....APPELLANT Khaja Krishna Prasad and another...Respondnts Counsel for the Appellant: Counsel for Respondents: : ?.Cases Referred:
1. AIR2003SC20352. (2006)3 SCC303. (2009) 2 SCC5134. AIR2010SC18985. AIR2008SC13256. AIR2001SC38977. AIR1999SC10088. AIR2002SC1829. AIR2008SC289810. 1971 (1) An.W.R. 65 11. 2012(13) SCC112. 2007(7) SCC39413. 1999(3) SCC114. (2014 (1) ALT Crl.145
JUDGMENT: The unsuccessful complainant in C.C.No.4 of 1998 on the file of the Court of Additional Judicial Magistrate of I Class, Kothagudem, is the appellant herein.
2. The parties are being referred as arrayed before the trial Court, for the sake of convenience.
3. The facts, in brief, are that the complainant filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act) against the accused alleging that the accused borrowed an amount of Rs.1,50,000/- from the complainant and the said debt was acknowledged by the father of the accused and the accused issued a cheque in favour of complainant, when the said cheque was presented, it was dishonoured. When the complainant issued statutory notice, accused issued reply admitting his indebtedness and subsequently, he paid an amount of Rs.43,000/-. On 17.10.1997 accused got issued another reply notice through his counsel admitting his liability to pay the loan amount, and he issued Ex.P.3 cheque bearing No.535365 for a sum of Rs.50,000/-,when the said cheque was presented in the bank it was dishonoured with an endorsement Account was closed. Then the complainant got issued legal notice. As the accused remained silent, after expiry of statutory period, the complainant filed the complaint.
4. The trial Court has taken cognizance of the offence by recording sworn statement of the complainant; after securing presence of the accused and supply of copies under Section 207 Cr.P.C., and after questioning under Section 251 Cr.P.C., from the plea of accused of not guilty, proceeded with trial. In the course of trial, on behalf of the complainant, complainant was examined as PW.1 and another witness as PW.2 apart from marking Exs.P.1 to P.8 documents viz., Ex.P.1 is office copy of legal notice, dated 03.10.1997 got issued by PW.1 to the accused, Ex.P.2 is reply notice, dated 17.10.1997, got issued by accused, Ex.P.3 is cheque, dated 19.11.1997, Ex.P.4 is cheque return memo, dated 21.11.1997, issued by Indian Overseas Bank, Kothagudem, Ex.P.5 is another legal notice, Ex.P.6 is postal acknowledgement, Ex.P.7 is legal notice, dated 04.03.1997 got issued by PW.1 to the father of the accused, Ex.P.8 is reply notice, dated 15.04.1997, got issued by the accused. On behalf of the accused, no evidence was adduced but got marked Ex.D.1, which is reply notice, dated 15.04.1997 got issued by father of the accused, which is no other than Ex.P.8.
5. From the incriminating material brought to the notice of the accused under Section 313 Cr.P.C., and recording his replies of innocence, after hearing both sides the trial Court acquitted the accused under Section 255(1) Cr.P.C., holding no offence made out against the accused under Section 138 of the Act. Challenging the same, present appeal is filed with contentions in the grounds of appeal that lower Courts acquittal judgment is contrary to the weight of evidence, probabilities of the case and erroneous outcome in the acquittal instead of conviction; lower Court ought to have seen that notice of demand served on the accused on 09.12.1997 and the complaint was filed on 23.12.1997 and sworn statement of the complainant taken was on 02.01.1998 and the complaint case was numbered by taking cognizance of the offence on 06.01.1998 and as such, the complaint is not pre-matured for so holding or in acquitting the accused by the trial Court, hence to set aside the said acquittal judgment and convict the respondent-accused by allowing the appeal.
6. Learned counsel for appellant reiterated the same in the course of hearing.
7. On the other hand, it is the contention of the learned counsel for the accused that the learned Magistrate having fresh mind with opportunity of recording evidence and after appreciation of the same, came to right conclusion and acquitted the accused as no offence was made out against accused under Section 138 of N.I. Act; for this Court while sitting in appeal with said reasoned judgment, there is nothing to interfere and sought for dismissal of the appeal.
8. Perused the material on record.
9. Now the points that arise for consideration are:
1. Whether there is no accrual of cause of action to file complaint under Section 138 N.I. Act under Section 142 (b) of the Act in favour of the complainant against the accused based on Ex.P.3 cheque dishonoured and if so there is no legally enforceable debt, for which the cheque was issued, if not acquittal judgment of the trial Court is not sustainable and requires interference by this Court while sitting in appeal and with what observations and consequences?. 2) To what result?.
10. POINT No.1:
10. (A). Before adverting to the merits of the matter, it is beneficial to quote the provisions incorporated in Chapter XVII of the N.I. Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections.138 to 142 are incorporated in the N.I.Act, 1881 as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the N.I. Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques. 10-(B). The object and intention of these penal provisions of the Chapter XVII (Sections 138 147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latters unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - GOA PLAST (PVT.) LTD. v. CHICO URSULA DSOUZA . 10-(C). To fulfill the objective, the Legislature while amending the Act has made the following procedure: In the opening words of the Section 138 it is stated: ".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,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec.143), be punished ----. Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation---(supra).". ".(i) Under Section 138 a deeming offence is created by fiction of law. (ii) An explanation is provided to Section 138 to define the words ".debt or other liability". to mean a legally enforceable debt or other liability.". (iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability. (iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured. (v) As per Section 146(new section) the production of the Banks slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused. 10-(D). Further the provision for issuing notice within thirty days under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. 10-(E). Reasonability of cause for non-payment is not at all a deciding factor. Mensrea is irrelevant. It is a strict liability incorporated in public interest. 10-(F). Availability of alternative remedy is no bar to the prosecution 10-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid. 11-A. The Apex Court in NARAYAN MENON v. STATE OF KERALA held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under Section 138 of N.I. Act. What Section 139 of N.I. Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of N.I. Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ".prudent man".. 11-B. The presumption that further applied among clauses (a) to (g) of Section 118 of N.I. Act also, like the presumption under Section 139 of the Act, as per Section 4 of the Evidence Act, is a rebuttable presumption for which the burden is on the accused, however, to rebut the presumption if a case is made out by accused either by pointing out from the case of the complainant including very documents and cross-examination or by examining any person and need not be always by coming to witness box vide decision in KUMAR EXPORTS PVT. LTD. V. SHARMA CARPETS . 11-C. Further, as per the expression of the Apex Court in RANGAPPA vs. MOHAN (3-Judges Bench) paras-9 to 15 referring to Goa Plasts case (supra), KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE by distinguishing at para-14 saying the observation in KRISHNA JANARDHAN BHAT (supra) of the presumption mandated by Section 139 of N.I. Act does not indeed include the existence of a legally enforceable debt or liability is not correct, though in other respects correctness of the decision does not in any way cause doubted; by also referring to HITEN P. DALAL v. BRATINDRANATH BANERJEE holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in BHARAT BARREL & DRUM MANUFACTURING COMPANY v. AMIN CHAND PYARELAL para-12 showing the burden on the accused is to bring on record by preponderance of probability either direct evidence or by referring to circumstances upon which he relies, rather than bare denial of the passing of the consideration; apparently that does not appear to be of any defence, to get the benefit in discharge of the onus against, also held referring the M.M.T.C. LTD. AND ANOTHER v. MEDCHL CHEMICALS & PHARMA (P) LTD that where the accused able to show justification of stop payment letter even from funds are there, but no existence of debt or liability at the time of presentation of cheque for encashment to say no offence under Section 138 of the N.I. Act made out in discharge of the burden. It was concluded referring to the above, including of MALLAVARAPU KASIVISWESWARA RAO v. THADIKONDA RAMULU FIRM & ORS paras-14 and 15 that the initial presumption lays in favour of the complainant and Section 139 of N.I. Act is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. While Section 138 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions and the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused cannot be expected to discharge an unduly high standard or proof and in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden to discharge by preponderance of probabilities by raising creation of doubt about the existence of a legally enforceable debt or liability to fail the prosecution and for that the accused can rely on the material submitted by the complainant also in order to raise such a defence and he may not need to adduce any evidence of his own. 11-D. It was also observed in para-15 that the accused appears to be aware of the fact that the cheque was with the complainant, further-more the very fact that the accused has failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainants version. It was also held by this court way back in Chapale Hanumayya Vs. Kevuri Venkateswarlu that having received and acknowledged the statutory legal notice after dishonour of cheque, non-giving of reply to said legal notice, improbablises the defence version, as any prudent person under the said circumstances should have, but for no defence to reply.
11. From the above propositions, coming to the facts in Ex.P.3 cheque bearing No.535365 was dated 19.11.1997 for Rs.50,000/-. It is the case of the complainant-PW.1 that out of the acquaintance, accused borrowed Rs.1,50,000/- from him along with his father and they jointly issued a cheque in his favour for dischargal of said debt, the complainant issued Ex.P.7 legal notice dated 04.03.1997 to the accused and his father and they issued Ex.P.8=Ex.D.1 reply notice dated 15.04.1997; again another legal notice dated 03.10.1997 covered by Ex.P.1 was issued to the accused and his father and they sent Ex.P.2 reply dated 17.10.1997 admitting the amount due; subsequently, accused paid only Rs.43,000/- and out of the balance Rs.1,07,000/-; as the accused failed to discharge the balance due, the complainant again issued legal notice dated 07.11.1997 and the accused got issued reply by further admitting the liability and seeking time but not paid and issued Ex.P.3 cheque, dated 19.11.1997, for Rs.50,000/- in part satisfaction of the amount outstanding supra; when the cheque was presented, the same was dishonoured as account was closed by accused covered by Ex.P.4 cheque return memo, then, PW-1 got issued statutory notice Ex.P.5 dated 07.11.1997 demanding to liquidate the cheque amount within 15 days intimating the dishonour and accused acknowledged the same covered by Ex.P.6 acknowledgement dated 09.12.1997 and failed to pay and even there was no reply, from which the complainant filed the complaint and the accused is liable for prosecution.
12. In the cross-examination of PW.1, as also reflected from the lower Courts order in para No.8 that PW.1 admitted that father of accused and accused together have taken the said amount of Rs.1,50,000/-, of which Rs.1,00,000/- by accused and Rs.50,000/- by his father, though he does not remember the dates it was during the year, 1996-97. He further deposed that after issuing first legal notice, the accused gave undertaking for total amount of Rs.1,50,000/- and he returned the cheque and promissory note executed by father of the accused in his favour for Rs.50,000/- and subsequently accused paid only Rs.43,000/-, but he did not remember with regard to which debt the said part payment was made. PW.1 further deposed that again in the year, 1999 accused borrowed Rs.10,000/- from him in Hingoli of Maharashtra State and issued a cheque in his favour. He deposed that accused is thereby indebted to him Rs.1,07,000/- after part payment of Rs.43,000/- out of Rs.1,50,000/-, he issued Ex.P.3 cheque for Rs.50,000/- and denied the suggestion of accused never indebted to him the said Rs.1,07,000/- and again not taken so-called Rs.10,000/- in the year, 1999 at Hingoli, Maharashtra. He denied the suggestion that the accused and his father did not give so-called Ex.P.2 reply with admissions therein through their counsel of the borrowal. PW.1 denied the suggestion that the accused borrowed from him only Rs.35,000/- in the year, 1996 and for the amount advanced a blank cheque was received. He deposed that he returned the earlier cheques obtained from accused on 15.04.1997 after undertaking by the accused and denied the suggestion of not returned and pressed into service the present cheque, but for returned only promissory notes executed by the accused. He deposed categorically that in Ex.P.7 notice, there was a specific mention with regard to borrowal of Rs.1,50,000/- and name of the father of the accused is one K.Narayan Das. It is also proved through PW.2, the Chief Manager of Indian Overseas Bank that Ex.P.3 cheque relates to the account No.603 of the accused and his proprietary concern name is Fashion N Fashion Readymade, just for you. The cheque was bounced due to closure of the account and Ex.P.4 is the said cheque return memo with reason sent by the bank. From the suggestions by accused to PW.1, it is clear that there were transactions of borrowals and giving of cheques and however in saying the accused borrowed only Rs.35,000/- and by that time he issued the blank cheques in favour of the complainant and the same were filled and misused. From that, the cheque was from his account maintained with the Indian Overseas Bank, Kothagudem, which was admitted by the accused. For his saying what he borrowed is only Rs.35,000/- and therefrom given the cheque, there is no basis muchless any whisper to strengthen anything of said reply notices Exs.P.2, P.8 and D.1. Therefrom it only probablises that the accused could not rebut the presumptions available against him in discharge of the burden under the reverse onus clause covered by explanation to Section 139 read with 138 read with Section 118 N.I. Act as laid down supra in Rangappas case by application of the same to the present facts. Particularly from para No.19 of the judgment of the learned Magistrate, it was even stated that Ex.P.3 cheque dated 19.11.1997, for Rs.50,000/- as stated supra, the signature of the accused is admitted but for contending a blank cheque issued. When that could not be substantiated as discussed supra, the accused is liable for the offence under Section 138 N.I. Act that was not properly appreciated by the trial Court.
13. Even coming to the other aspect that drawn attention of the means of complainant, the learned Magistrate in acquitting the accused stated means not established. In fact, the complainant established that he has got means for lending and admittedly there were earlier transactions even between them of lending by complainant.
14. Ex.P.4 cheque return memo was dated 21.11.1997 for the reason account closed. Even from the cross-examination of PW.2, there is nothing to show accused handed over the unused cheque leaves of the account maintained by him with the said bank while closing the account. In such an event, there is no improbability for saying accused issued Ex.P.3 cheque on 19.11.1997 even he closed the account prior to that date and thus nothing to belie issuance of the cheque. Therefrom, it can be presumed even after closure of the account, accused issued the cheque and the only thing to be considered, in the absence of probable evidence in discharge of the burden on the accused by preponderence of probabilities, is the cheque issued on the date it bears in favour of the person named as payee and for said amount therein etc., as said presumptions are available under Section 118 of the Act and then to presume the same was issued for the legally enforcable debt under Section 139 read with Explanation to Section 138 of the Act, as laid down in the above preferred expressions, particularly of Rangappa (Supra). Ex.P.5 is the notice issued by the complainant after receiving Ex.P.4 cheque return memo and Ex.P.6 is the acknowledgement of the accused about receipt of notice and in Ex.P.5 the fact that out of Rs.1,50,000/-, he paid Rs.43,000/- and fell due for Rs.1,07,000/-, in part payment of which for Rs.50,000/-, the Ex.P.3 cheque was issued. The Ex.P.6 shows said notice was received by accused on 09.12.1997. There was no reply from the accused for the said notice. As per the proposition supra particularly of Rangappa (4th cited supra) in para 15 and in Chapale Hanumayya (10th cited supra), but for no defence the accused could have replied to Ex.P.5 notice acknowledged by Ex.P.6, which also strengthens the case of the complainant and improbablises the present defence to draw the inference from said conduct in non-giving of reply. In fact, trial Court also in paras 18 to 20 came to the conclusion of Ex.P.3 cheque was issued by the accused for the legally enforceable debt from the factual matrix supra.
15. In this regard, Ex.P.3 cheque was dated 19.11.1997, Ex.P.5 notice was dated 27.11.1997 and Ex.P.6 acknowledgement of the accused was dated 09.12.1997 and the registered post receipt No.1665 of Ex.P.5 notice dated 29.11.1997 of Head Post Office, Kothagudem that was also affixed on Ex.P.5 and the accused received only on 09.12.1997. 15 days waiting for the accused to pay the debt for accrual of cause of action from combined reading of Section 138 proviso (b) and Section 142 (b) is after the date of service if excluded the 15 days expire by 25.12.1997 was the conclusion of the trial Court; it was from the fact that complaint filed on 23.12.1997 there was no accrual of cause of action to the date of complaint filed was the conclusion arrived by the trial Court in dismissing for non-accrual of cause of action. In fact, the Apex Court in 2000 SAR Crl. 840 in Narsingh Das Tapadia Vs. Govardhan Das Partani held that even complainant filed the criminal case under Section 138 of the Act some days earlier to the end of the period after service of notice under Section 138 of the Act, even trial Court on facts convicted the accused High Courts acquittal held by the Apex Court as unsustainable. It was observed in this regard in the expression by the Apex Court at Para Nos.5 to 8 that taking of cognizance is to be distinguished from mere filing of complaint in Court by the complainant and it is the taking of cognizance by application of mind to the facts for purpose of proceeding with, that is also criteria and under Section 199 read with 200 Cr.P.C., it is not from mere filing of complaint but after recording of the statement of the complainant by examination with witnesses present, if any, to ascertain existence of prima facie case i.e., criteria thus mere presentation of complaint in Court cannot be held to mean taking of cognizance. In those facts, the complaint filed was returned on some objections and re-presented. Here, no doubt for presenting the complaint there must be accrual of cause of action and the cause of action accrued after 15 days waiting. The learned Magistrate observed that the acknowledgement Ex.P.6 since contained the stamp dated 09.12.1997, the accused received the same on that day. There was nothing to show accused put any signature thereon of received on 09.12.1997 as the date of service. In fact, it was Ex.P.5 notice dated 27.11.1997 registered on 29.11.1997 and it was served on the accused before it reached back the complainant with the last postal stamp thereon on 09.12.1997. It is both parties residing in Kothagudem Town of Khammam District as per the cause title of the address in the complaint, thereby in the absence of a clear evidence from the accused of it was served only on 09.12.1997, the said conclusion of the trial Court is not correct to compute 15 days waiting from that day much less to say the complaint filed before accrual of cause of action. Further-more from the said expression of the Apex Court in Narsingh Das Tapadia (supra), mere pre-mature filing no way fatal, but for to return to re- present. No doubt the Apex Court in Indra Kumar Patodia Vs. Reliance Industries Ltd , held in the cheque bouncing case by relying upon Japani Sahoo Vs. Chandra Sekhar Mohanthy (under general principles of a criminal case on limitation under Cr.P.C.) that date of computation for period of limitation is date of filing and not date of taken cognizance by Court later as act of Court shall prejudice no man not sanctioned by law. Thus, even the date of filing criteria, since filed on 25.12.1997; when registered notice dated 27.11.1997 registered and sent on dated 29.11.1997; it is served later before return of acknowledgement dated 09.12.1997 to say service in between 29.11.1997 to 09.12.1997 and not on 09.12.1997 and when as per postal rules maximum 7 days to deposit for service and not beyond, it taken the same from 29.11.1997, 7 days expire by 06.12.1997 to say service was by or before 06.12.1997 and if such is the case, 15 days from 06.12.1997 after excluding the date 06.12.1997 and including of 15th day is 22.12.1997 the day when from cause of action for one month accrue under Section 142(b) read with Section 138 proviso (b) of the N.I. Act leave about the duty of Court if filed prematurely to return or postpone taking of cognizance and there is nothing to show cognizance taken on the date of filing even; thus there is accrual of cause of action by date of filing the complaint. Having regard to the above, the acquittal judgment of the trial Court is unsustainable on that ground that too, for not a specific defence with opportunity to PW.1 to give his explanation or reason and at least to cause examining the postman with postal records as to exact date of service to compute the 15 days by excluding the actual date of service and to include the last day i.e., 15th day as per Section 12 of Limitation Act and Sections 8 and 9 of General Clauses Act to take the date for accrual of cause of action for one month time within which the complaint to be filed. The other expression in this regard of the Apex Court in Saket India Ltd., Vs. India Securities Ltd . As such, the trial Courts finding on present facts is not sustainable and is liable to be set aside and the accused is to be found guilty for the offence under Section 138 N.I. Act. Accordingly, point No.1 is answered.
16. Point No.2: In the result, the Criminal Appeal is allowed and the accused is found guilty of offence punishable under Section 138 N.I. Act and convicted accordingly. For hearing on sentence including for appearance of the accused, post on 04.06.2014. _________________________________ JUSTICE Dr. B. SIVA SANKARA RAO Date:29-04-2014 INL Date:
04. 06.2014: Even posted the matter from 29.04.2014 by reversing the acquittal judgment of the trial Court finding the accused guilty allowing the appeal to this day for hearing of the accused on sentence, the accused did not appear and thus taken that he has no say. As the Ex.P.3 cheque amount is for Rs.50,000/- dated 19.11.1997 and the case filed was even prior, the disposal was subsequent to the amendment to the N.I.Act, introducing Section 143 with effect from 06.02.2003 which mandates the trial in summary procedure and convert if necessary as summons procedure and that was not questioned as irregular much less any prejudice caused thereby, and this provision speaks on conviction, for sentence of imprisonment not exceeding one year and an amount of fine exceeding Rs.5,000/- (without any limit with non-obstante clause irrespective of the provisions of Cr.P.C.) and the bar under Section 29 of Cr.P.C. of outer limit of fine of Rs.10,000/-(amended and substituted for Rs.5,000/- by the Cr.P.C. amendment Act of 2006) as was earlier, after this provision Section 143 introduced thereby of no application. It was also held by the apex Court in SOMNATH SARKA VS. UTPAL BASU MALLICK that the Act not contemplated grant of compensation but envisages imposition of fine not exceeding twice the amount of dishonoured cheque and out of said fine amount, the complainant be compensated under Section 357 Cr.P.C. and that unlike for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainants 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. Having regard to the above and from the submission by the appellant/complainant of the endeavour is to recover the amount of compensation from out of fine or otherwise, rather than sentencing the accused to jail, the accused is sentenced to undergo Simple Imprisonment till rising of the day and to pay a fine of Rs.60,000/- with default sentence of (3) months Simple Imprisonment as per Sections 65 to 68 read with 53(6) I.P.C. Out of said fine amount, Rs.10,000/- goes to the State and the remaining Rs.50,000/- goes to the complainant as compensation. It is thereby directed the learned Magistrate to secure the presence of accused by issuing warrant to undergo the sentence in that open Court and also to cause recover the fine amount, out of which Rs.10,000/- goes to the State and the remaining Rs.50,000/- goes to the complainant as compensation under Section 431 read with Section 421 of Cr.P.C., with default sentence of (3) months Simple Imprisonment as per Sections 65 to 68 read with 53(6) I.P.C. _____________________________ Dr. JUSTICE B. SIVA SANKARA RAO Date:
04. 06.2014.