IMPORTANT POINT
Considerable discretion is vested in Court for imposition of fine on accused.

J.J. Munir, J.—The revisionist Raj Kumar Goel issued a cheque that bounced with a remark “insufficient fund”; the second respondent Smt. Chandra Prabha is the payee of the cheque aforesaid.

2. This revision has been filed by Raj Kumar Goel from a judgment and order dated 23.03.2007 of Mr. Lukmanul Haq, the then Additional Sessions Judge, Court No. 10, Ghaziabad in Criminal Appeal No. 5/2007 dismissing the said appeal and affirming a judgment and order of Ms. Sapna Mishra, the then Special Judicial Magistrate (C.B.I.), Ghaziabad dated 29.01.2007 passed in Criminal Case No.730 of 2006, under Section 138 of Negotiable Instrument Act (for short the ‘Act’) convicting the revisionist of the charge under Section 138 of Act and sentencing him to suffer three months rigorous imprisonment and imposing a fine of Rs. 2000/-, and in default of payment of fine to undergo a further term of 15 days simple imprisonment. The revisionist has also been ordered to pay a compensation in the sum of Rs. 30,000/- to the second respondent-complainant invoking the provisions of Section 357 Cr.P.C.

3. The case of the complainant-respondent no.2 that led to the revisionist’s conviction, in short, is that the complainant is a kind hearted person who is predisposed to reach out to anyone in need of help. The revisionist knew the complainant through some relatives of hers. The revisionist requested the complainant to loan her a sum of Rs. 2 lacs. It is urged that revisionist represented to the complainant-opposite party that his business had run into trouble and that he would refund money loaned to him piecemeal. In consideration of the loan by the complainant, the revisionist issued a cheque worth Rs.20,000/- towards the first installment of refund bearing cheque no. 555852 dated 25.08.2005 drawn on the ICICI Bank, Patel Nagar, Ghaziabad. It is the complainant-opposite party’s case that she presented the cheque in account through her bank but it was dishonoured through her bank with a remark “insufficient funds” by the revisionist’s bank.

4. The complainant says that distressed at the aforesaid turn of events she caused legal notice dated 29.09.2005 to be served upon the revisionist through her counsel which despite service and expiry of the statutory period remained fruitless. Accordingly, she brought a complaint under Sectgion 138 of the Act which was registered as complaint case no. 730 of 2006 on the file of the Special Judicial Magistrate (C.B.I.), Ghaziabad. The statement of the complainant under Section 200 was accepted on her affidavit and documentary evidence was filed comprising the original bounced cheque, the bank memo reporting dishonour, carbon copy of the legal notice sent to the revisionist and the receipt of dispatch by registered post relative to the legal notice in original. On the basis of the evidence aforesaid the Magistrate summoned the revisionist to stand his trial for an offence punishable under Section 138 of the Act.

5. At the trial the complainant deposed as PW-1. No other evidence was led on her behalf.

6. The revisionist was examined under Section 313 Cr.P.C. where he denied having issued the bounced cheque to the complainant-respondent. He further denied service of the statutory notice. The revisionist took a specific stand that he had lost his bag at Lohiya Nagar that had money and his cheque book regarding which he had given information to the police. The revisionist was called upon to enter defence. The revisionist entered defence and deposed in the witness box as DW-1 and by way of documentary evidence brought on record a carbon copy of the written information of the loss of his money and cheque book given to the police duly acknowledged by P.S. Sihani Gate, district Ghaziabad.

7. I have heard learned counsel for the revisionist Sri Harish Chandra and learned AGA for the State. Even though the case was called on in the revised list, learned counsel for the opposite party no.2 Sri Vivek Kumar Mishra did not appear.