Case Note & Summary
The petitioner, Subhash Chunnilal Gandecha, was convicted by the Judicial Magistrate, First Class, Pandharkawada in Summary Criminal Case No.374 of 2008 for an offence under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by Mehandibhai Musabhai Lakhani alleging that the petitioner issued a cheque for Rs.3,00,000/- dated 25.11.2007 drawn on Yavatmal Zilla Madyavarti Bank Ltd., which was dishonoured on 31st December 2007. A demand notice dated 10.1.2008 was sent, but the petitioner did not reply. The trial court convicted the petitioner and sentenced him to simple imprisonment for three months and a fine of Rs.3,50,000/-, with a default sentence of one month imprisonment. The fine amount was directed to be paid as compensation to the complainant under Section 357(1) Cr.P.C. The petitioner appealed to the Additional Sessions Judge, Kelapur in Criminal Appeal No.21 of 2008, which was dismissed on 30.1.2010. The petitioner then filed a writ petition under Article 227 of the Constitution read with Section 482 Cr.P.C. before the Bombay High Court, Nagpur Bench. During the pendency of the petition, the petitioner paid the cheque amount of Rs.3,00,000/- to the complainant, and the complainant accepted the same. The High Court considered whether the conviction and sentence should be quashed or modified. The court noted that the petitioner had already paid the cheque amount, and the complainant had no objection to the modification of sentence. The court held that while the conviction under Section 138 NI Act was justified, the sentence of imprisonment could be substituted with fine and compensation in light of the payment. The court upheld the conviction but modified the sentence to only a fine of Rs.3,50,000/-, which was to be paid as compensation to the complainant. The default sentence was also set aside. The petition was disposed of accordingly.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Conviction and Sentence - The petitioner was convicted for dishonour of a cheque of Rs.3,00,000/- and sentenced to three months' imprisonment and fine of Rs.3,50,000/- with default sentence. During appeal, the petitioner paid the cheque amount to the complainant. The High Court held that since the cheque amount was paid, the sentence of imprisonment could be substituted with fine and compensation, and the conviction was upheld but sentence modified to fine only. (Paras 1-6)
B) Criminal Procedure Code - Compensation - Section 357(1) - The trial court directed that the fine amount be paid as compensation to the complainant. The High Court, while modifying the sentence, directed that the fine amount of Rs.3,50,000/- be paid as compensation to the complainant under Section 357(1) Cr.P.C. (Paras 3, 6)
C) Constitutional Law - Writ Jurisdiction - Article 227 - The petition was filed under Article 227 of the Constitution read with Section 482 Cr.P.C. for quashing the appellate order. The High Court exercised its supervisory jurisdiction to modify the sentence in the interest of justice. (Paras 2, 6)
Issue of Consideration
Whether the conviction and sentence under Section 138 of the Negotiable Instruments Act should be quashed or modified in light of the payment of the cheque amount during the pendency of the appeal.
Final Decision
The High Court upheld the conviction under Section 138 of the Negotiable Instruments Act but modified the sentence. The sentence of simple imprisonment for three months and default sentence were set aside. The petitioner was directed to pay the fine of Rs.3,50,000/- which shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. The petition was disposed of accordingly.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 357(1) Code of Criminal Procedure
- 1973
- Article 227 Constitution of India
- Section 482 Code of Criminal Procedure
- compounding of offence
- sentence modification
- compensation to complainant
Case Details
2011 LawText (BOM) (07) 77
Criminal Writ Petition No. 126 of 2010
Mr. P.N. Mehta for Petitioner, Mr. F.T. Mirza for Respondent No.1, Mr. A.I. Sheikh for Respondent No.2
Subhash Chunnilal Gandecha
Mehandibhai s/o. Musabhai Lakhani and I.S.Gazi
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution read with Section 482 CrPC for quashing appellate order confirming conviction under Section 138 NI Act.
Remedy Sought
Petitioner sought quashing and setting aside of the order dated 30.1.2010 passed by Additional Sessions Judge, Kelapur in Criminal Appeal No.21 of 2008.
Filing Reason
Petitioner was convicted for dishonour of cheque and sentenced to imprisonment and fine; appeal was dismissed.
Previous Decisions
Trial court convicted petitioner on 29.11.2008 in Summary Criminal Case No.374 of 2008; appellate court dismissed appeal on 30.1.2010.
Issues
Whether the conviction and sentence under Section 138 NI Act should be quashed or modified in light of payment of cheque amount during appeal.
Submissions/Arguments
Petitioner argued that he had paid the cheque amount to the complainant during the pendency of the petition.
Respondent No.1 (complainant) accepted the payment and had no objection to modification of sentence.
Ratio Decidendi
When the cheque amount is paid to the complainant during the pendency of an appeal or petition, the sentence of imprisonment under Section 138 NI Act can be substituted with fine and compensation, while the conviction is upheld. The court has discretion to modify the sentence in the interest of justice, especially when the complainant has no objection.
Judgment Excerpts
Rule. Rule made returnable forthwith.
By this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has approached this Court for quashing and setting aside the order dt.30.1.2010 passed by the learned Additional Sessions, Kelapur in Criminal Appeal No.21 of 2008.
It appears that the present petitioner was prosecuted in a Complaint Case u/s. 138 of the Negotiable Instruments Act in the Court of the Judicial Magistrate, First Class, Pandharkawada in Summary Criminal Case No.374 of 2008 decided on 29.11.2008 whereby the petitioner was convicted for the offence punishable u/s. 138 of the Negotiable Instruments Act and was sentenced to suffer simple imprisonment for three months and to pay a fine in the sum of Rs.3,50,000/-; in default of payment of fine, he was directed to further undergo simple imprisonment for one month.
The amount of fine, if recovered, was directed to be paid to the complainant Mehandibhai as compensation u/s. 357 (1) of the Code of Criminal Procedure.
It appears that the complainant had filed a complaint against the accused alleging commission of offence punishable u/s. 138 of the Negotiable Instruments Act on the ground that the petitioner (Original accused) had issued a cheque on 25.11.2007 in the sum of Rs.3,00,000/- drawn upon the Yavatmal Zilla Madyavarti Bank Ltd. Yavatmal.
The said cheque was returned dishonored on 31st December, 2007.
The complainant had issued demand notice dt.10.1.2008 demanding amount of the cheque.
No reply was sent to that notice by the petitioner/accused.
Thus, the complaint was filed.
During the complaint proceedings, the petitioner/accused defended the prosecution on the ground that he had not entered into any transaction with the complainant and he did not know the complainant.
The learned Magistrate after considering the evidence convicted the petitioner/accused.
The petitioner/accused preferred an appeal before the learned Additional Sessions Judge, Kelapur, which was also dismissed.
During the pendency of this petition, the petitioner has paid the cheque amount of Rs.3,00,000/- to the complainant and the complainant has accepted the same.
In view of the fact that the petitioner has paid the cheque amount to the complainant, the sentence of imprisonment can be substituted by fine and compensation.
Hence, the conviction is upheld but the sentence is modified.
The petitioner is directed to pay the fine of Rs.3,50,000/- which shall be paid as compensation to the complainant under Section 357(1) of the Code of Criminal Procedure.
The sentence of simple imprisonment for three months and default sentence are set aside.
Rule is made absolute in the above terms.
Procedural History
The petitioner was convicted by the Judicial Magistrate, First Class, Pandharkawada on 29.11.2008 in Summary Criminal Case No.374 of 2008 for offence under Section 138 NI Act and sentenced to three months imprisonment and fine of Rs.3,50,000/-. The petitioner appealed to the Additional Sessions Judge, Kelapur in Criminal Appeal No.21 of 2008, which was dismissed on 30.1.2010. The petitioner then filed Criminal Writ Petition No.126 of 2010 under Article 227 of the Constitution read with Section 482 CrPC before the Bombay High Court, Nagpur Bench. During the pendency of the writ petition, the petitioner paid the cheque amount to the complainant. The High Court disposed of the petition on 1.7.2011, upholding the conviction but modifying the sentence to fine only.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 357(1), 482
- Constitution of India: Article 227
