IMPORTANT POINT
Where cheque was returned unpaid because of death of a partner and evidence showed that it was unilateral act of bank, it will not attract penal provision of Section 138 of N.I. Act.

Anil Sharma, J.—Petitioner has filed this revision petition under Section 397 and 401 of Code of Criminal Procedure, 1973 against the order dated 30.7.09 passed by learned Second Additional Sessions Judge in Criminal Appeal No.181/09 whereby the sentence of 6 months’ imprisonment and payment of Rs.35,000 compensation for the offence under Section 138 of Negotiable Instruments Act has been modified to RI for 1 month and fine of Rs.1,50 ,000, out of which Rs.1,30,000 have to be paid as compensation and Rs.20,000 as fine.

2. The brief facts of the case in narrow compass are that the complainant/respondent Smt. Renu Agrawal has extended the loan facility of Rs.1,00,000 to the firm Gangaram Bhagwandas which is a partnership firm of which petitioner/accused is partner alongwith Omprakash Gupta. Smt. Indu Gupta and Smt. Mamta Gupta for repayment of said loan amount cheque No.020333 of Rs.1,00,000 dated 23.12.05 was issued by the petitioner/ accused to the respondent/complainant.

3. The cheque issued by petitioner/accused was returned by the Bank alongwith the note that cheque could not be honoured because of “death of partner”. Thereafter, the complainant has issued the notice to the petitioner/accused on 5.6.2006. Even after receiving the notice, no amount has been paid despite lapse of notice period, therefore, the complainant has preferred the complaint before the trial Court.

4. After framing the charges, learned trial Court proceeded with the trial of the case and held the petitioner/accused alongwith other accused persons (partners of the firm) guilty for commission of offence punishable under Section 138 of Negotiable Instruments Act and sentenced them for 6 moths’ RI and directed the accused persons to pay Rs.35,000 each (Rs.1,40.000 as compensation) within 15 days.

5. Against the judgment dated 15.5.2009 of the trial Court, the petitioner/accused and other accused persons filed appeal No. 181/09, 179/09, 174/09 and 178/09. All these appeals were disposed of by a common judgment dated 30.7.09 by reducing the sentence of petitioner/accused to 1 month RI and imposed fine of Rs.1,50,000 and acquitted other accused Smt. Indu Gupta, Omprakash Gupta and Smt. Mamta Gupta for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. Aggrieved by the judgments passed by learned both the Courts below, petitioner has filed this revision petition.

6. The present revision petition has been filed by the petitioner on the ground that the disputed cheque No.020333 dated 23.12.05 has been returned by the Bank with the note that cheque could not be honoured because of “death of partner”. That does not fall under the purview of Section 138 of Negotiable instruments Act because under Section 138 of Negotiable Instruments Act the offence is made only when the payment of cheque has been stopped or there is insufficient amount in the account to honour the cheque or the cheque amount exceeds the amount available with the Bank in the account of the person issuing cheque. Petitioner has never directed the Bank for stopping the payment, cheque has not been returned for insufficiency of fund in the account and for returning the cheque on the ground of death of partner, petitioner cannot be held responsible, therefore, he could not have been punished under Section 138 of Negotiable Instruments Act.

7. Further the lower appellate Court has committed the error in imposing fine of Rs.1,50,000 thereby enhanced the amount of compensation (i.e. Rs. 35,000). The order of the trial Court has been passed without giving any notice of enhancement and it is against the provisions of Section 357 of Code of Criminal Procedure.

8. Learned counsel for the respondent has submitted that under Section 138 of Negotiable Instruments Act, every kind of dishonour of cheque is punishable because even after giving notice to the petitioner/accused he has failed to pay the cheque amount within the stipulated time.

9. Learned counsel for the petitione