The main legal point established is that the objective of Section 138 NI Act is to ensure compensation to the complainant for the dishonoured cheque, and the punishment should be converted to a fine to achieve this objective.

JUDGMENT :

Rumi Kumari Phukan, J.

1. Heard Mr. S. Borthakur, learned counsel for the petitioner and Mr. H.A. Ahmed, learned counsel for the respondent No. 2. State is a formal party.

2. The present petitioner filed a complaint before the learned Addl. CJM, Barpeta alleging inter-alia that the accused purchased a tractor from the showroom of the complainant, namely, M/s Bharali Automobiles on 22.03.2014 and since then they grown friendly relationship and after one year of purchasing the tractor, the accused approached the petitioner for a loan of Rs. 1,50,000/- and out of such friendly relationship, the petitioner paid the same to the accused on 11.5.2015 and the accused-respondent also promised to return the same within one month. As the accused-respondent did not return the money as promised, so on the request made by the petitioner, the respondent issued a cheque amounting to Rs. 1,50,000/- on 11.5.2015 but the same was dishonoured by the bank and hence after service of due legal notice, a complaint was filed under Section 138 of NI Act.

3. The accused-petitioner faced the trial and denied the charge. The petitioner adduced evidence in support of his case but the defence adduced no rebuttal evidence. At the conclusion of trial, the learned trial court found the accused guilty under Section 138 NI Act and sentenced him to simple imprisonment for 3 months and to pay fine of Rs. 2 Lakhs, in default of payment of fine, simple imprisonment for 1 month with further direction that the fine amount, if recovered, be awarded to the complainant as compensation under Section 357(b) Cr.P.C. vide its order dated 18.12.2017.

4. On appeal so preferred, the learned appellate court while maintaining the conviction in para-15 of the judgment held that the trial court has awarded the sentence of imprisonment to the accused as well as fine of Rs. 2 Lakhs which seems to be double punishment to the accused. It was held that the accused has been burdened with imprisonment as well as fine of Rs. 2 Lakhs, which appears to be harsh on the circumstances of the case and thus the appellate court sentence the accused to simple imprisonment for 6 months and set aside the award of sentence of fine of Rs. 2 Lakhs, vide its order dated 21.02.2019.

5. The said order of appellate court was not challenged by the accused-respondent but the complainant has come forward with the present revision under Section 401/397 Cr.P.C. challenging the findings of the appellate court of setting aside the award of sentence of fine of Rs. 2 Lakhs and has contended that the findings of the appellate court is erroneous while modifying the order of the trial court whereas the trial court has rightly appreciated the facts and circumstance of the case and gave direction to pay compensation to the petitioner.

6. Accordingly, a prayer has been made to set aside the order of the appellate court and to reaffirm the judgment and order of the trial court so that the petitioner will get justice and his grievance can be redressed.

7. Learned counsel for the petitioner has contended that unless he is compensated in terms of money along with substantial sentence to the accused, he will suffer irreparable loss and he is now not in a position to recover the amount as no civil case was preferred.

8. Learned counsel for the respondent has also admitted that he has not preferred any appeal against the concurrent findings of conviction because of poor condition of the respondent and he is ready to pay the fine amount and he may be exonerated from the substantial sentence as in case of such conviction his whole family will be in jeopardy. In view of the background of the case where conviction is not challenged by the accused- respondent, this Court will not discuss about the merit of the case and will discuss the limited aspect that has been raised in the present petition that whether only order of substantial sentence will serve the ends of justice?

9. In the present case, the cheque amount was Rs. 1,50,000/-