THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL REVISION CASE No.1722 OF 2006
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is filed by the petitioner-complainant aggrieved by the judgment, dated 08.08.2006, passed in C.C.No.1645 of 2003 by the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereby, the Court below, found the respondent No.1-accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'N.I. Act') and accordingly, convicted him of the said offence and sentenced him to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for thirty days.
2. Heard the learned counsel for petitioner-complainant, learned Assistant Public Prosecutor appearing for respondent No.2-State and perused the record.
3. Notice was taken out to the respondent No.1-accused in the month of April, 2007 to the address furnished in the cause title of the revision case. As the respondent No.1-accused was continuously absent for a considerable time, endorsing the same on the cover of the notice sent to the respondent No.1-accused, the notice was returned unserved. Hence, there is deemed service on the respondent No.1-accused. Though the matter is pending for several years, the respondent No.1-accused did not 2 Dr.SA,J Crl.R.C.No.1722 of 2006 choose to appear or appoint an Advocate to represent the matter.
4. The facts of the case, in brief, are that the respondent No.1-accused used to purchase the required goods from the petitioner-complainant on credit basis by issuing cheques. The respondent No.1-accused purchased certain goods from the petitioner-complainant and issued cheque bearing No.278085, dated 10.08.2002 for Rs.7,980/- drawn on Bombay Mercantile Co-operative bank, Hyderabad Branch, towards payment of goods purchased. When the petitioner-complainant presented the said cheque in the bank, the same was dishonoured for want of sufficient funds. Therefore, the petitioner-complainant got issued a legal notice, dated 27.08.2002 demanding the respondent No.1-accused to pay the cheque amount. In spite of the same, the respondent No.1-accused did not pay the cheque amount. Hence, the petitioner-complainant filed the subject private complaint before the Court below and the same was registered as the subject C.C. for the offence punishable under Section 138 of the N.I. Act. The Court below, having examined the material on record and the submissions made, found the respondent No.1-accused guilty of the offence punishable under Section 138 of the N.I. Act and accordingly, convicted him of the said offence and sentenced to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for thirty days. Aggrieved by the same, the present Criminal Revision Case is filed by the petitioner-complainant.
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Crl.R.C.No.1722 of 2006
5. The grievance of the petitioner-complainant is that the Court below, having convicted the respondent No.1-accused of the offence punishable under Section 138 of the N.I. Act, sentenced him only to pay fine of Rs.5,000/-, which is irrational. In the given circumstances, the Court below ought to have directed the respondent No.1-accused to pay the cheque amount of Rs.7,980/- towards compensation and ultimately, prayed to modify the sentence imposed by the Court below and allow the revision case by sentencing the respondent No.1-accused to suffer imprisonment as well as to pay the cheque amount.
6. Admittedly, the Court below having examined the entire material on record was pleased to hold that the respondent No.1-accused was guilty of the offence punishable under Section 138 of N.I. Act and accordingly, convicted him of the said offence and sentenced him to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for thirty days. There is ample evidence on record to show that the cheque, dated 10.08.2002, given by the respondent No.1-accused was dishonoured for want of sufficient funds and that the respondent No.1-accused did not repay the cheque amount to the petitioner-complainant. Further, the two essential ingredients that have to be present in order to attract the offence under Section 138 of the N.I. Act are that 1) the cheque ought to have been 'drawn' by the drawer in favor of the payee on an account with a bank and 2) the issuance of the cheque must be in total or partial discharge of the liability owed by the drawer to the payee. In the instant 4 Dr.SA,J Crl.R.C.No.1722 of 2006 case, the said essential ingredients of N.I. Act have been established. In the given circumstances, sentencing the respondent No.1-accused only to pay fine of Rs.5,000/- is irrational. The Court below ought to have directed the respondent No.1-accused to pay the cheque amount also towards compensation, in addition to the fine amount.
7. Under these circumstances, to meet the ends of justice, while maintaining the conviction and the sentence of fine amount of Rs.5,000/- along with the default clause imposed by the Court below, vide the impugned order, dated 08.08.2006, the respondent No.1-accused is directed to pay the cheque amount of Rs.7,980/- towards compensation to the petitioner- complainant.
9. Accordingly, the impugned judgment, dated 08.08.2006, passed in C.C.No.1645 of 2003 by the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad, is modified to the extent indicated above and the Criminal Revision Case is disposed of.
Miscellaneous Petitions, if any, pending in this Criminal Revision Case shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J Date: 06-08-2021.
MD