A.I.S. Cheema, J.
BOMBAY HIGH COURT
M/S Radhesham Laxminarayan
& Co. —Appellant
versus
Kashmirilal Harising Gupta
& Anr. —Respondents
Criminal Appeal No.801/2003
Decided on 29.4.2016

IMPORTANT POINT
Accused cannot be shown any indulgence in cheque bouncing cases.

Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Appeal against acquittal—Complainant had given sufficient notice to accused not merely by sending registered post A.D. notice but also by telegrams and accused had knowledge about bouncing of cheque and still failed to pay—This being so, judgment of conviction passed by trial Court was correct and first appellate Court wrongly interfered with conviction—If trial Court considered it appropriate not to pass sentence of imprisonment, it would have been appropriate to consider amount of cheques which bounced and keeping in view reasonable interest, further amount could have been calculated and fine could have been accordingly ordered—Amounts of appellant are outstanding since the time cheques bounced in February 1994—Appeal is allowed with costs quantified at Rs. 10,000/-—Accused sentenced to pay fine of Rs. 4,00,000/- and in default to suffer simple imprisonment for three months.

       Held: I find that, the complainant had given sufficient notice to the accused not merely by sending registered post A.D. notice but also by telegrams and the accused had knowledge about bouncing of the cheque and still failed to pay. This being so, the judgment of the trial Court was correct and the first appellate Court wrongly interfered with the conviction.

       In this matter, the trial Court has imposed only fine of Rs.50,000/- although it found that the accused was liable to pay the amount of cheques. In para 20 of its judgment, it held that, “Complainant is legally entitle to recover the amount in question i.e. Rs.2,00,000/-”

       This matter was finally argued on 6.4.2016. At that time, the learned counsel for the appellant had taken permission to make further submissions in case he can find some rulings on question of enhancement of sentence. Subsequently, on 12.4.2016, learned counsel for both sides were present and were further heard as recorded in order dated 12.4.2016, with regard to question of enhancement of sentence.

       Learned counsel for the appellant relied on the case of Suganthi Suresh Kumar Vs. Jagdeeshan. In that matter, the respondent therein had drawn two cheques in favour of the appellant, which were dishonoured. The amount covered by the cheques was Rs.4,50,000/-. The trial Magistrate convicted the respondent under Section 138 of the Negotiable Instruments Act, but sentenced him only to undergo imprisonment till rising of the Court and to pay a fine of Rs. 5000/- in both the cases. The appellant in that matter preferred revision to the High Court on the premise that sentence was grossly inadequate and at least Section 357(3) of the Code of Criminal Procedure should have been invoked and compensation awarded. The High Court did not interfere with the sentence although it observed that Magistrate should keep in mind object of providing stringent punishment and guidelines given by the Apex Court in “Pankajbhai Nagjibhai Patel Vs. State of Gujarat”, When the matter came up before the Hon’ble Supreme Court, the Hon’ble Supreme Court found that there was no case for the respondent that the said amount had been paid either during the pendency of the case before the trial Court or the High Court or the Supreme Court. It was observed :

        If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrate that the sentence for the offence under section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly.”

       The Supreme Court observed that, even if the properties of the respondent had been attached in a civil suit in that matter, still that was not a ground for lessening the gravity of the offence or to impose minor sentence as was chosen by the trial Court. In that matter, the Hon’ble Supreme Court remitted back the matter to trial Court to hear both sides again in the matter of sentence.

       30. In the present matter, considering the facts of this matter, I have heard learned counsel for both sides as regards enhancement of sentence, in case the appeal happens to be allowed. I am also keeping in view the submissions made by the accused before the trial Court when sentence was to be passed.

       The accused submitted that, he is running business in Agricultural Produce Market Committee and has good reputation Criminal Appeal No.801/2003 and that he did not have intention to cheat the complainant. He had requested the trial Court to impose sentence of fine only.

       Keeping these submissions also in view, I am considering the present matter. I find that, if provisions of Section 138 of the Negotiable Instruments Act are considered, it was permissible to pass sentence of imprisonment for a term which could extend to one year at the relevant time or with fine which could extend to twice the amount of cheque or with both. If the trial Court considered it appropriate not to pass sentence of imprisonment, it would have been appropriate to consider the amount of cheques which bounced and keeping in view reasonable interest, further amount could have been calculated and fine could have been accordingly ordered. The amounts of the appellant are outstanding since the time the cheques bounced in February 1994. More than 20 years after that date, even if the amount of Rs.2 Lakhs had been kept in Fixed Deposit, it would have multiplied many folds. I find it appropriate that, sentence of fine as per Section 138 of the Negotiable Instruments Act needs to be passed. In fact, even that is on the lower side looking to the time lapsed. For above reasons, the Criminal Appeal is allowed with costs quantified at Rs.10,000/- (Rupees ten thousand) to be paid by respondent No.1 to the appellant. The impugned judgment and order passed by IInd Additional Sessions Judge, Criminal Appeal No.801/2003 Jalna in Criminal Appeal No.8/1995 is quashed and set aside. (Paras 26 to 31)

       Result: Criminal Appeal allowed with costs.