Order On Board

04/02/2021

1. Since common question of fact and law is involved in both the petitions, they are heard together and being disposed of by this common order.

2. Respondent No.1 / accused issued a cheque of ₹ 2,67,011/- to the complainant / petitioner on 3-4-2011 which was submitted by the petitioner / complainant in his bank for realisation, but the same was returned by the Bank informing that the cheque has been dishonoured on account of insufficient fund. Thereafter, legal notice was served by the complainant to the accused on 30-4-2011 and criminal complaint was filed for offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’) before the trial Magistrate. The trial Magistrate upon full trial by his judgment dated 4-8-2012 found the offence under Section 138 of the NI Act proved against the accused / respondent No.1 and convicted him under Section 138 and sentenced to undergo RI for three months. Feeling aggrieved against the judgment of conviction and order of sentence awarded, the accused preferred criminal appeal under Section 374(3) of the CrPC, whereas, the complainant preferred criminal revision against the order not awarding compensation amount / fine to the accused. The revisional Court dismissed the revision of the complainant / petitioner holding that he could have invoked the remedy of appeal under Section 372 of the CrPC against which the present Cr.M.P. No.357/2013 has been filed by the complainant / petitioner. However, the appellate Court in appeal under Section 374(3) of the CrPC maintained conviction of the accused / respondent No.1, but set aside the sentence of imprisonment and sentenced only to pay fine of ₹ 5,000/-, in default to undergo imprisonment for one month, against which the present revision Cr.Rev. No.233/2013 has been preferred by the complainant. This is how both the cases have been placed for consideration.

3. Mr. P.R. Patankar, learned counsel appearing for the petitioner herein / complainant, would submit that once conviction has been maintained for offence under Section 138 of the NI Act by the appellate Court, sentence could not have been interfered with or even if it has been interfered, it could have been awarded sentence of fine to the extent of the cheque amount or double of the cheque amount whichever is reasonable, but the appellate Court interfered with sentence and confined the sentence to fine amount that too ₹ 5,000/- only which is absolutely unjustified and bad in law. He would further submit that the revision preferred by the complainant was so competent which has also been illegally rejected by the revisional Court. As such, the present criminal revision be allowed and the sentence awarded by the trial Court be restored or it be converted to fine and compensation be awarded to the complainant.

4. Mr. Amiyakant Tiwari, learned counsel appearing for the accused / respondent No.1 herein, would vehemently submit that the learned appellate Court has rightly interfered with the sentence and sentenced to fine only which the accused had already deposited, as such, interference cannot be made in the order of the appellate Court. He would further submit that the learned appellate Court has rightly set aside the jail sentence and converted it to fine sentence.

5. I have heard learned counsel for the parties and perused the judgment of the trial Court as well as of the appellate Court and the revisional Court and also went through the record with utmost circumspection.

Cr.Rev.No.233/2013

6. Section 138 of the NI Act provides as under:—

"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 in