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TMI Blog2016 (1) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court for an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'Act') and also to pay compensation of `6,00,000/-, double of the cheque amount to be paid within thirty days with a prayer that the judgment passed by the learned Court below be set-aside and the respondent/accused be sentenced with actual imprisonment for commission of an offence under Section 138 of the Act. 2. The first and foremost question that arises for consideration is as to whether this appeal, that too, under Section 378(4) of the Criminal Procedure Code (for short 'Code') is legally maintainable in view of the fact that the respondent has not been acquitted but has been convicted and sentenced as aforesaid. 3. Section 378 (4) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehemently argued by Mr. Rupinder Singh, learned counsel for the appellant that the learned Court below has erred in imposing a flea-bite sentence upon the respondent and should have convicted the respondent to undergo actual and substantive two years imprisonment in terms of the mandate of Section 138 of the Act. 7. Section 138 of the Negotiable Instruments Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of the cheque, or with both. But nowhere is it mandatory for the Magistrate to punish the accused with actual imprisonment even in case where he has already imposed a fine of twice the amount of the cheque. 9. That apart, unlike that for other forms of crime, the punishment under Section 138 is not a means of seeking retribution, but is more a means to ensure payment of money. This is because the complainant's interest lies primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery as would be evident from the following observations made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system. 17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5] : "... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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