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2018 (2) TMI 2057 - JAMMU AND KASHMIR HIGH COURTDishonor of Cheque - insufficiency of money - sufficient cause for not being convicted or not - cooling off period - Section 138 of Negotiable Instrument Act - HELD THAT:- It is clear that the petitioner has now no cause, what to speak of sufficient cause for not being convicted. The Magistrate has rightly convicted him. When the mandate of law and the procedure prescribed has been strictly followed i.e. Chapter XX of Cr.P.C. has been followed, there could be no requirement of following Section 17 of the Evidence Act. The argument advanced is accordingly repelled. The provision of Negotiable Instrument Act has an object of controlling and discouraging the cheque bouncing. Conviction or sentence is only resorted to when the accused fails to pay the borrowed amount. Scheme of the Act is such which provides that when a cheque is bounced, notice of demand shall be issued. Then a cooling off period of one month for filing the complaint has been prescribed, so that the amount is paid. Commission of other crimes is different to the crime covered by the Negotiable Instrument Act. Award of compensation - permissible under Section 138 of N.I. Act or not - HELD THAT:- Learned Appellate Court while dealing with the contention has noticed that in view of conferment of special power and the jurisdiction of the Judicial Magistrate 1st Class, the ceiling as to the amount of fine stipulated in the Criminal Procedure Code has been removed and, as such, Magistrate can impose sentence or fine under Section 138 N.I. Act beyond ₹ 5000/, which opinion is based on the judgment rendered by the Hon'ble Apex Court titled R. VIJAYAN VERSUS BABY [2012 (6) TMI 519 - SUPREME COURT] where it was held that Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary. The conclusions drawn by learned Additional Sessions, Anantnag, in maintaining the sentence and then modifying the order of fine enhancing it to ₹ 7,00,000/- is perfectly justified and in-keeping with the position of law, therefore, no interference is warranted - petition dismissed.
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