Gujarat High Court
Gunvantrai Harishankar Dave vs State Of Gujarat on 17 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/CR.RA/206/2012 JUDGMENT DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 206 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUNVANTRAI HARISHANKAR DAVE
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MB PARIKH(576) for the Applicant(s) No. 1
MR VC VAGHELA(1720) for the Respondent(s) No. 2
MR RONAK RAVAL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/08/2023
ORAL JUDGMENT
This revision under Sections 397 read with Section 401 of
the Code of Criminal Procedure, 1973 (for short the Code)
challenges the judgment and order dated 09/02/2011 rendered
by the learned JMFC, Bagsara in Criminal Case No.8 of 2002
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which has been confirmed by the learned Sessions Judge, Amreli
on 09/04/2012 in Criminal Appeal No.6 of 2011 whereby the
present revisionist has been held guilty for the offence
punishable under Section 138 of the Negotiable Instruments Act
(for short the NI Act) and sentenced to undergo seven months
simple imprisonment with fine of Rs.10,000/- in default thereof
two months SI. It was also ordered to pay to complainant an
amount of Rs.4,506/- under Section 357(1) of the Code towards
the compensation.
2. Brief facts of the case are that the revisionist obtained a
loan of Rs.45,000/- at the rate of 20% from respondent No.2
under the loan agreement with terms and conditions. The
revisionist was required to repay the amount of loan by way of
monthly installment and therefore by way of cheque no.108099
dated 15/10/2001 in the sum of Rs.4506/- the first installment
was paid; however the said cheque was returned as unpaid.
2.1 Respondent No.2 therefore issued statutory notice under
the Act and subsequent thereto complaint came to be filed before
the learned trial Court which after recording the plea of evidence
and further statement convinced that the org. complainant has
made out a case and hold the present revisionist guilty for the
said offence and imposed the punishment as stated supra.
2.2 The said judgment and order of conviction and sentence
has been assailed in the appeal unsuccessfully before the
learned Sessions Court, Amreli by filing Criminal Appeal No.6 of
2011 which also confirmed the said order of conviction and
sentence and thus present revision application is filed.
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3. Heard learned Advocates appearing for the respective
parties.
4. Learned Advocate for the revisionist does not dispute or
question the correctness of the impugned judgment and order of
conviction and sentence; however he would submit that entire
amount of loan has been paid to the respondent no.2; including
the amount of cheque in question and therefore, he would urge
this Court to show leniency in imposing punishment of fine only.
5. Reciprocating positively to the submissions of learned
Advocate for the revisionist, learned Advocate for respondent
No.2 would submit and confirm that the amount of cheque as
well as entire loan amount has been paid by the revisionist and
therefore respondent No.2 is not interested in sending the
revisionist behind the bars and therefore, it is submitted that
necessary order may be passed.
6. Learned APP would submit that since the dispute is of
private nature in the given facts and circumstances appropriate
order may be passed.
7. Having heard the learned Advocates appearing for the
respective parties, at the outset, some undisputed facts require
to be noted that the revisionist had given the cheque in question
from his SB account maintained by him which came to be
returned as unpaid and the return memo indicates reason 11(d)
for returning of the cheque i.e. insufficient fund; notice under
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Section 138 was issued on 29/01/2001 which was served; albeit
without raising any dispute to the funds. Thereafter, upon case
being filed the evidence came to be led by the complainant vide
Exh.35 to Exh.51 which includes the deposition of the
authorized person from the org. complainant whose evidence is
recorded at Exh.60 viz., Arvindbhai Viththalbhai. The accused
did not lead any evidence.
7.1 After recording the above evidence, learned trial Court by
reasoned order discussed the effect of reverse burden as
envisaged under Section 139 of the NI Act and held that the
prosecution has successfully proved the case against the
revisionist and passed the order afore-stated which
unsuccessfully challenged in the appeal before the learned
Sessions Court at Amreli and learned first appellate Court after
referring to Satish Jayantilal Shah vs. Pukaj Mashru [1996 (2)
751 GLR] reached to the conclusion that even if blank but signed
cheque is given by the accused to the complainant; it will attract
the offence under Section 138 of the NI Act and that conclusion
lead to the dismissal of the said appeal.
8. Learned Advocate for the revisionist would submit that
not only the criminal proceedings; but civil proceedings were also
started by respondent No.2 which has filed a Summary Suit
before the Board of Nominee, Bhavnagar which has passed an
award to pay a sum of Rs.68,840/- with accrued interest @ 20%
to the respondent No.2. He would submit that in view of such
proceedings, the revisionist has paid the amount of the cheque
in question as well as the entire loan amount. Thus, he submits
that the main and the principal cause of the litigation is now
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satisfied and therefore, necessary leniency may be shown to the
revisionist by reduction in punishment.
9. Section 138 of the NI Act is brought to the Negotiable
Instruments Act, 1981 by way of an amendment by Act of 66 of
1988 with effect from 01/04/1989. By amendment, the
legislature has given the criminal colour to the civil wrong. In
Kaushalya Devi Massand vs Roopkishore Khore (2011) 4 SCC
593 it has been held that, "gravity of a complaint under the
Negotiable Instruments Act cannot be equated with an offence
under the provisions of the Indian Penal Code or other criminal
offences. An offence under Section 138 of the Negotiable
Instruments Act, 1881, is almost in the nature of a civil wrong
which has been given criminal overtones. "
10. Keeping in mind the above aspect in order to adjudge the
proportionate in imposing the punishment in the peculiar facts
and circumstances of this case palatable from the submissions
recorded herein above, let refer to Section 138 of the NI Act
which reads thus.
"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,
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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 the cheque, as the case may be, makes
a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the
cheque, 20 [within thirty days] of the receipt of information by
him from the bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to
the holder in due course of the cheque, within fifteen days of
the receipt of the said notice."
11. Section 138 of the NI Act defines the punishment and it
starts 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. Thus, there can be three part available to the
Court to punish the accused who is found guilty under Section 138 of
the NI Act i.e. either imprisonment or it can be with a fine which may
extend to twice the amount of the cheque or imprisonment with the
fine.
12. In the present case, the revisionist has already paid the
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amount of Rs.10,000/- towards the fine imposed and he was
also ordered to undergo imprisonment of seven months SI. At
the same time, in view of subsequent development, whereby the
amount of cheque is already paid and further considering the
smallness of the amount of the cheque being returned, this
Court is of the opinion that it would be proportionate to impose
the punishment of fine only for the offence punishable under
Section 138 of the NI Act which is proved.
13. For the foregoing reasons, the revision application partly
succeeds. The impugned judgment and order of conviction is
confirmed while confirming the sentence of imposition of fine
and setting aside the order of sentence of seven months SI. Rule
is made absolute to the aforesaid extent.
(J. C. DOSHI,J)
sompura
