JUDGMENT :

Sanjeev Kumar, J.

CRM(M) No.22/2020

1. By this petition filed under Section 482 Cr.P.C, the petitioner seeks setting aside of order dated 24.01.2020 passed by the Special Mobile Magistrate (Sub-Judge), Srinagar (hereafter referred to as the ‘trial Court’) in a complaint bearing No. 29/2019 titled “Yasir Amin Khan vs. Abdul Rashid Ganie filed under Section 138 of Negotiable Instruments Act, 1881 [‘N.I Act’] whereby on the basis of statement made by the respondent-accused under Section 242 Cr.P.C (251 Central Act), he has been convicted and punished with simple imprisonment for a term of six months and in addition, he has been held liable to pay compensation of Rs.2.00 lac to the petitioner.

2. The petitioner is not aggrieved by the impugned order insofar as it convicts respondent-accused for commission of offence under Section 138 of N.I. Act and imposes punishment of simple imprisonment for a term of six months. However, his grievance is that the respondent-accused should have also been awarded fine sufficient enough to meet the liability of the cheque issued by him which later on was dishonoured. It is, thus, submitted that payment of compensation of Rs.2.00 lac, to be paid to the petitioner in terms of the impugned order, is only one fifth (1/5th) of the value of the cheque. It is contended by learned counsel for the petitioner that the complaint filed by the petitioner under Section 138 read with Section 142 of N.I. Act was in respect of cheque issued by the respondent-accused for an amount of Rs.10.00 lac, which, on presentation in the Bank, was returned for want of sufficient funds in the account of the respondent. It is, thus, submitted that once the respondent appeared before the trial Court and admitted the liability, the trial Court should have exercised its discretion to impose minimum fine of Rs.30.00 lac and ordered payment of same to the petitioner by way of compensation.

3. In response to the notice issued, the respondent has entered appearance through Mr. Syed Ansar Advocate, but has chosen not to appear when the case was taken up for consideration. The respondent, however, is not aggrieved of the impugned order and has not assailed the same by filing any appeal.

4. Having heard learned counsel for the petitioner and perused the record, the only question that begs determination in this case is what should be the approach of the trial Court while awarding punishment to an accused convicted for commission of offence under Section 138 of N.I. Act; whether the trial Court should, with or without the punishment of imprisonment, impose fine which is sufficient enough to meet the liability of the accused towards the complainant as represented by the bounced cheque ?.

5. With a view to appreciate the issue raised by learned counsel for the petitioner, it is necessary to first set out Section 138 of N.I. Act.

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of th