1. The applicant – original accused No.1, has filed this Revision Application, challenging the Judgment and order dated 30.6.2009 passed by learned Metropolitan Magistrate (Negotiable Instrument Act), Court No.4, Ahmedabad, in Criminal Case (New) No. 978 of 2008 (old Criminal Case No. 708 of 2002), whereby the learned Magistrate has held the applicant (original accused) guilty of the offence punishable under Section 138 of the Negotiable Instrument Act and awarded him simple imprisonment for 1 year and to pay a fine of Rs.5,000/- i/d to further undergo SI for 4 months. Against the said Judgment and order of learned Magistrate, the applicant herein has preferred Criminal Appeal No. 162 of 2009 before the City Civil & Sessions Court, Ahmedabad, and the learned Additional Sessions Judge, vide Judgment and order dated 3.3.2010, not only, dismissed the said Criminal Appeal, but, enhanced the sentence of simple imprisonment for 2 years, instead of simple imprisonment for 1 year, as awarded by the learned Magistrate and the order of fine of Rs.5,000/- passed by the learned Magistrate, is also modified and enhanced to the total penalty of Rs.4,05,000/- and upon depositing the said amount by the applicant – accused, compensation of Rs.4,00,000/- has been awarded to the complainant.
2. Being aggrieved by the said Judgments and orders of both the Court below, the applicant herein has preferred this Revision Application.
3. It is the case of the complainant that for the business purpose the applicant – accused was in need of money and, therefore, being the friend of applicant – accused, the accused has borrowed the amount of Rs.4,00,000/-
from the complainant with running interest @ 18 per cent. The accused has also gave the promissory note, signed by the original accused. The applicant has also issued the cheques in favour of the complainant. It is alleged that when the said cheques were deposited before the Bank, the same were returned with an endorsement “insufficient balance”, Thereafter, the complainant issued Notice to the applicant – accused, but, the applicant did not return the amount to the complainant. Therefore, the complainant has filed complaint before the Court. Thereafter, after considering the evidence produced on the record and after considering the arguments, the learned Metropolitan Magistrate, Court No.4, Ahmedabad, held the applicant – accused guilty of the offence charged against him and awarded the sentence as stated herein above.
4. Heard learned Advocate Mr. M.J. Budhbhatti, appearing on behalf of the applicant – accused, learned A.P.P. Mr. H.L.Jani, appearing on behalf of the respondent – State and learned Advocate Mr. Bharat Rao, appearing on behalf of the respondent No.2 – original complainant.
5. Learned Advocate Mr. Budhbhatti has read the contents of the complaint and contended that from the contents of the complaint, it clearly appears that no case is made out against the applicant. He has contended that the Courts below have also not considered the defence version and committed grave error in holding the applicant guilty of the offence alleged against him. He has contended that actually the amount alleged is not given by the complainant to the applicant, but, the said amount has been given to the son of the applicant and, therefore, the applicant is not liable to pay the said amount. He has contended that the dues claimed by the complainant is not legally enforceable dues and no evidence is produced. He has contended that from the deposition it appears that the amount was paid in cash as per the wording in the promissory note, while during the cross- examination of the complainant, the complainant has stated that he did not remember as to whether the amount was paid in cash. He has contended that looking to the date of amendment of Section 138 of NI Act, the date is also required to be considered, and the learned Judge has wrongly considered that the offence punishable under Section 138 can be considered for a period of 2 years. He has contended that the learned Judge has also not properly afforded the opportunity of hearing to the applicant. He, therefore, contended that looking to the over-all evidence produced on the record, both the Courts below have committed grave error in holding the applicant guilty of the offence alleged against him.
6. Learned APP Mr. Jani has read the date of amendment in Section 138 and contended that as per the case of the prosecution and from the evidence of witnesses as well as documentary evidence, the prosecution has proved its case beyond reasonable doubt that the applicant has committed the offence punishable under Section 138 of NI Act. He, therefore, contended that the Court below has not committed any error in holding the applicant guilty of the offence charged against him and, therefore, no interference may be called for by this Court.
7. Learned Advocate Mr. Rao for the original complainant has read the defence version and contended that even from the plain reading of the Judgment and order of both the Courts below and the oral evidence of witnesses, it is prima facie established that the prosecution has proved its case beyond reasonable doubt. He has also contended that the conduct of the applicant is also required to be seen. He has contended that more than 5 cases have been registered against the applicant for the same offence, which itself suggest that the applicant is habitual offender and, therefore, no lenient view may be taken in the present case.
8. I have heard the learned Advocates for the respective parties and also perused the papers produced before me. I have also gone through the Judgments of both the Courts below.
9. The contention on behalf of the applicant – original accused is that the alleged cheque amount is not received by the applicant, but, fraudulently the complainant has obtained the blank cheques from the office of the applicant. I have minutely perused the cross examination of the witness and from the deposition of witnesses as well as from the documentary evidence, it clearly appears that the main ingredients of Section 138 of NI Act are proved beyond reasonable doubt and, therefore, in my opinion, the learned trial Magistrate has not committed any error in holding the applicant guilty of the offence charged against him.
10. I have also gone through the decisions cited before me.
(i) In the case of TRANSMISSION CORPORATION OF A.P. v/s CH. PRABHAKAR & ORS., reported in AIR 2004 SC 3368, more particularly Head Note (B), the Hon'ble Apex Court has held as under :
“Constitution of India, Art. 20(1) – Protection against conviction – Liberal construction has to be given to language used in Art. 20(1) and not narrow one.
A liberal interpretation of sub clause (1) of Art. 20 would mean that the protection available is only against conviction for an act or omission which was not an offence under the law in force when the same was committed and against infliction of a greater penalty than what was provided under the law in force when the offence was committed. Constitution being a living organic document needs to be construed in a broad and liberal sense. A construction most beneficial to the widest possible amplitude of its powers may have to be adopted. Of all the instruments, the constitution has the greatest claim to be construed broadly and liberally.”
(ii) In the case of DILIP S. DAHANUKAR v/s KOTAK MAHINDRA CO. LTD. & ANR., reported in 2007 (3) GLH 244, more particularly in Head Note (B) the Hon'ble Apex Court has observed as under :
“(B) Code of Criminal Procedure, 1973 – S. 357 – Negotiable Instrument Act, 1981 – Ss. 138 & 141 – Conviction for dishonour of cheque and order of compensation – Trial Court imposed a fine of Rs.25,000/- on the company, whereas Chairman of the company was directed to pay compensation of Rs.15 lacs besides imposition of simple imprisonment of one month – An Appellate Court suspended the sentence subject to deposit of Rs.5 lacs, while admitting an appeal of the accused – Chairman – Held, in case of this nature, sub-Sec. (2) of S. 357 of the Code would be attracted even when the accused was directed to pay compensation – Further held, while suspending the sentence, the Appellate Court is entitled to put accused on terms – However, no such term could be put as a condition precedent for entertaining an appeal which is a constitutional and statutory right.”
11. I am also of the opinion that relying upon the decision of the Hon'ble Apex Court in the case of K.BHASKARAN v/s SANKARAN VAIDHYAN BALAN & ANR., reported in (1999) 7 SCC 510, the lower Appellate Court has also rightly awarded the amount of compensation to the complainant and, therefore, no interference is called for, so far as imposition of penalty upon the applicant by the Lower Appellate Court is concerned.
12. In view of above, I am of the opinion that the Additional Sessions Judge has rightly imposed the penalty by way of fine upon the applicant and, therefore, no interference is required to be called for. However, the learned Additional Sessions Judge has committed error in enhancing the sentence of simple imprisonment for 2 years from simple imprisonment for 1 year as awarded by the learned Metropolitan Magistrate to the applicant.
13. Accordingly, this Revision Application is partly allowed on the question of sentence only. The order of sentence awarded by the learned Metropolitan Magistrate to the applicant i.e. awarding sentence of simple imprisonment for 1 year to the applicant is hereby confirmed. However, rest of the Judgment and order of the learned Additional Sessions Judge i.e. imposition of penalty upon the applicant, and other direction issued in the said order is confirmed. Order accordingly. Rule is made absolute to the aforesaid extent only.
(Z.K.SAIYED, J.) sas