CHHATTISGARH HIGH COURT
Sanjay K. Agrawal, J.
Smt. Meel Bai —Applicant
versus
Rameshvar Prasad Chauhan —Non-Applicant
Crl. Rev. No.583 of 2012
Decided on 18.9.2015

IMPORTANT POINT
Criminal Court sentencing accused for commission of offence under Section 138 of the Negotiable Instruments Act is competent to impose sentence of fine only as imposition of jail sentence is not mandatory. The abject of Section 138 appears to be punitive as well as compensatory in nature.

Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Conviction—Sentence to be awarded—Imposition of jail sentence is not mandatory—Appellant accused had issued two cheques amounting to Rs.2,50,000/- to the complainant which were dishonoured on account of insufficient fund in her account—Trial Magistrate recorded a finding that there was a legally enforceable liability of the appellant against purchase of land and in discharge of that, two cheques were issued to the complainant—Trial Magistrate convicted the accused for offence u/s 138 of the Act and sentenced her to undergo simple imprisonment for one year and also awarded compensation of Rs.2,50,000/- u/s 357(3) CrPC—In appeal, Sessions Judge maintained her conviction u/s 138 of the Act but reduced the jail sentence to imprisonment till rising of the court and enhanced the compensation amount to Rs.2,75,000/-—Whether conviction of appellant accused for offence u/s 138 of the Act is just and proper—(Yes)—Whether punishment of imprisonment imposed upon the accused was just and proper—(No)—Applicant directed to pay compensation amount of Rs.2,75,000/- to the complainant.

       Held: The Trial Magistrate has dearly recorded a finding that there was a legally enforceable liability of the applicant against purchase of land and in discharge of that, two cheques were issued to the complainant and that cheques were returned due to insufficient fund in the account of accused/applicant and the said finding of the trial Magistrate has been affirmed by the Appellate Court. The said finding recorded by Trial Magistrate and duly affirmed by Appellate Court is based on evidence available on the record and in which, I do not find any illegality and as such, the applicant has rightly been convicted by trial Court and the Appellate Court has not committed any illegality in affirming the same, this question is answered accordingly.

       Thus, from the provisions contained in Section 138 of the N.J. Act and going by the law laid down by Their Lordships of the Supreme Court in aforesaid judgments it is quite vivid that Criminal Court sentencing the accused for com- mission of offence under Section 138 of the N.I. Act is competent to impose sentence of fine only as imposition of jail sentence is not mandatory as it is discretion vested with the Criminal Court either to impose jail sentence or sentence of fine only depending on the facts and circumstances of particular case.

       But, here in the instant case, in Section 138 of the N.I. Act the word “or” has been employed and discretion has been conferred to the Criminal Court sentencing the convicted person for offence under Section 138 of the N.I. Act, Thus, there is a discretion left with the Criminal Court either to sentence the” accused with imprisonment or to punish the accused with the sentence of fine upon considering the facts and circumstances of the case.

       In the matter of Damodar S. Prabhu v. Sayed Babalal H, (2010) 5 SCC 663, Their Lordships of the Supreme Court while examining the object sought to be achieved by provisions of Section 138 of the N. 1. Act and purpose underlying the punishment provided therein has held that Section 138 of the N.I. Act cases are meant to secure payment of money by holding as under:-

        ‘117. Unlike that 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 complainant’s 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.”

       Taking into consideration the provisions contained in Section 138 of the N.I. Act in which punishment imposable is two years imprisonment or with fine which can be twice to the amount of cheque and taking note of the law laid down in this behalf by Their Lordships of the Supreme Court in the aforesaid cases that the punishment to be awarded in Section 138 of the N.I. Act cases are meant to ensure payment of money and threat of jail is only to ensure recovery and as such, imposition of jail sentence is not mandatory, in the considered opinion of this Court, ends of justice would be served if only the applicant is punished with the fine sentence and she is fined to an amount equal to cheque amount i.e. Rs. 2,50,000/- and additional fine of Rs. 25,000/- towards interest on the said amount is imposed and accordingly applicant is sentenced to pay fine of Rs. 2,75,000/- in total and is directed that the total fine amount of Rs. 2,75,000/- be paid to the nonapplicant/ complainant under Section 357(l)(b) of the Cr. P.C. It is stated at bar that the applicant has deposited an amount of Rs. 1,37,500/- incompliance of this Court order dated 22/04/2013 and said amount shall be disbursed to the complainant/non-applicent forthwith. The remaining amount of compensation be deposited by applicant within a period of forty five days and it shall also be paid immediately thereafter to the complainant. If the balance fine amount is not deposited within forty five days from today, the applicant will undergo simple imprisonment for one month. (Paras 13, 21, 18, 19 & 26)

       Result: Appeal Partly allowed.