The High Court
Case Details
- 1 - Cr. Revision No.40 of 2016 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.40 of 2016 Md. Ismile ---------- -Versus- … Petitioner 1. The State of Jharkhand 2. Rameshwar Mehta ---------- … Opp. Parties CORAM:
Legal Reasoning
HON’BLE MR. JUSTICE AMBUJ NATH ---------- For the Petitioner For the State For the O.P No.2 : Mr. Jyoti Prasad Sinha, Advocate : Ms. Sweta Singh, A.P.P : Mr. Prabhat Kr. Sinha, Advocate --------- C.A.V. On : 25/01/2023 Pronounced On: 24.06.2023 Heard the parties. This revision application is directed against the judgment dated 06.05.2015, passed by Sri Shiv Pal Singh, learned Additional Sessions Judge-III, Hazaribagh in Criminal Appeal No.122/2014, whereby and wherein the learned Additional Sessions Judge-III, Hazaribagh, affirmed the judgment of conviction and order of sentence passed by Sri Rakesh Kumar, learned Judicial Magistrate, 1st class, Hazaribagh in connection with Complaint Case No.1311 of 2011 holding the petitioner guilty of the offence under Section 138 of the N.I Act and thereby, sentencing him to undergo rigorous imprisonment for one year and further directed him to pay compensation of Rupees Four Lakhs to the complainant. Prosecution case was instituted on the basis of a complaint petition filed by the opposite party No.2 Rameshwar Mehta, alleging therein that on 07.02.2011, the complainant had given a sum of Rs.5,50,000/- as an advance to the petitioner for purchasing land and took one month time for execution of sale deed. The further case is that the opposite party No.2 on enquiry, came to know that the land which the petitioner wanted to sell was “Khas Mahal” land. Thereafter, the opposite party No.2 demanded his money back. On 31.05.2011, the petitioner handed over three cheques of S.B.I bearing No.384368 of Rs.2,00,000/- cheque No.384370 of a sum of Rs.1,50,000/- and cheque No.384369 of Rs.2,50,000/- and asked the complainant to present two cheques in the first week of August. One cheque bearing No.384369 of Rs.2,50,000/- - 2 - Cr. Revision No.40 of 2016 was encashed by the complainant. Both cheques bearing no.384368 and 384370 were presented for encashment on 06.08.2011. Both the cheques were returned vide Bank returned Memo on 16.08.2011, showing insufficient fund in the account of the petitioner. Thereafter, the complainant sent a registered legal notice on 08.09.2011, demanding the bounced amount. Despite, receiving notice on 13.09.2011, the petitioner failed to pay the cheque amount within fifteen days from the receipt of the legal notice. Thereafter, the opposite party No.2 filed the complaint case on 18.10.2011 under Section 138 of the Negotiable Instrument Act before the Chief Judicial Magistrate, Hazaribagh. Complainant had adduced both oral and documentary evidence. It is apparent that there are concurrent findings by both trial court as well as learned appellate court that the petitioner had issued two cheques to the tune of Rs.1,50,000/- and Rs.2,00,000/- in the name of opposite party No.2 on 28.06.2011 and on 29.06.2011, which are Exhibit- 1 series. Both the cheques were placed before the State Bank of India Hazaribagh for encashment. The aforesaid cheques were returned to the opposite party No.2 by Bank Memo dated 16.08.2011, showing that these cheques could not be honored for want of insufficient funds. The cheque returned Memo is Exhibit-3. From perusal of the deposit receipt, which are Exhibit-2 series, it appears that cheques were placed for encashment on 06.08.2011 i.e., within stipulated period. Legal Notice was given to the petitioner on 08.09.2011 through registered cover. Postal receipts along-with legal notice dated 08.09.2011 are Exhibit-4 series. These receipts are dated 08.09.2011. Thus, it is apparent that the cheques were placed for encashment before the State Bank of India, Hazaribagh within time. Legal Notice was sent to the petitioner within 30 days from the cheque return memo. When the petitioner did not return the bounced amount to the opposite party No.2, the complaint case was filed on 18.10.2011. It appears from the statement of Satyendra Prasad Mehta who has been examined as C.W.1 that the petitioner had received notice on 13.09.2011 and promised to return the amount by 28.09.2011. However, when the money was not returned, the complaint case was filed on 18.10.2011. Thus, it is evident that the cheques issued by the petitioner was - 3 - Cr. Revision No.40 of 2016 presented before the Bank within a valid period. Legal Notice demanding the bounced amount was also issued by opposite party No.2 within 30 days from the date of receipt of the information from the bank and the present complaint case was filed within a period of one month i.e., from 28.09.2011. When the petitioner approached the complainant on 30.09.2011, he promised to return the amount within 15 days. I do not find any error in the impugned judgment of the learned trial court as well as the learned appellate court in holding the petitioner guilty for offence under section 138 of the N.I.Act. Mr. Jyoti Prasad Sinha, learned counsel appearing for the petitioner has submitted that the petitioner had paid Rs.4,00,000/- to the opposite party No.2 which is the compensation amount as directed by the learned Trial Court. It was further submitted that the petitioner has faced rigors of trial for about 8 years. It was also submitted that the petitioner has not been convicted in any other case. Accordingly, it was prayed that the petitioner may be given the benefit of section 3 of Probation of Offenders Act. Reliance has been placed upon the judgment reported in 2022 SCC Online Del. 4008, wherein it was held that while applying the provisions of Probation of Offenders Act, 1958, wide interpretation should be given considering the nature of offence, character of the offender and his good conduct, rational view is to be taken by the Courts taking into account the surrounding circumstances. Mr. Prabhat Kumar Sinha, learned counsel for the opposite party No.2 has submitted that the cheque was issued by the petitioner in the year 2011 and the bounced amount was paid in the year 2016, causing pecuniary loss to the opposite party No.2, which would have accrued as interest on the aforesaid amount. It was prayed that the sentence of R.I for one year imposed by the learned Trial Court to the petitioner need not be set aside. The entire amount of compensation has already been paid to the opposite party No.2. There is nothing on record to show that the appellant has been convicted in any other case. In fact, there is nothing on record to show that he is an accused in any other case. Accordingly, it will be expedient in the interest of justice to accord the benefit of Section 3 of the Probation of Offenders Act, 1958 to the petitioner. - 4 - Cr. Revision No.40 of 2016 Accordingly, the order of sentence of the learned Trial Court, sentencing the appellant to undergo simple imprisonment for one year for the offence under Section 138 of the N.I. Act is modified to the extent that the petitioner shall be released after due admonition. This revision application is partly allowed with the modification of sentence.
Decision
Pending I. A, if any, also stands disposed of. BS/- (Ambuj Nath, J.)