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2019 (8) TMI 373

..... e of the orders of the learned trial Court, Appellate Court as well as by this Court and also by the Hon’ble Supreme Court, have not paid the cheques amount and flouted the order by putting the technical procedure hurdles and not obeying the order. This conduct shows that the respondents issued the cheques merely as device to fraud the complainant and this dishonored of the cheques caused incredible loss, injuries and inconvenience to the complainant and also reflected the credibility of the business transaction. This Court is of the view that the learned trial Court without assigning any reason reduced the sentence of imprisonment into the lowest one till rising of the Court, which does not seem to be warranted in this situation - the reduction of sentence without assigning any reason is not sustainable and deserved to be reconsidered. This Court is not found fit to reconsider the sentence at this stage, therefore, this case should be remitted back to the Appellate Court for reconsidering the sentence. Conviction under Section 138 of the N.I. Act is hereby affirmed and the order of sentence passed by the Appellate Court is hereby set aside - Learned Appellate Court is direct .....

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..... dents have not paid the cheque amount, then applicant filed a complaint under Section 138 of the N.I. Act against both respondents before the Court of JMFC, Katni. The Court of JMFC, Katni after trial, delivered a judgment dated 15.03.2016 and convicted the both respondents for the offence punishable under Section 138 of the N.I. Act. Respondent No. 2 being a private limited company and respondent No. 1 being a director of that company, respondent No. 1 sentenced to undergo 1 year R.I. (4 counts for each cheque of ₹ 10 Lakh) and calculated the compensation @ 9% per annum and fixed ₹ 5376000/- as a compensation and ordered to be paid by the respondents to the applicant/complainant, in default of payment to undergo 6 months R.I. additional. 3. Respondent Nos. 1 and 2 being aggrieved by that conviction and sentence filed an appeal, registered as Criminal Appeal No.2700046/2016 and prayed to set aside the conviction and sentence and prayed for acquittal. Applicant had also filed an appeal being aggrieved by the same judgment dated 15.03.2016 against the respondents, registered as Criminal Appeal No. 2700073/2016 challenging the order of calculation of compensation at the ra .....

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..... opal Sharma to deposit the whole amount of cheques in High Court within a period of eight weeks from passing of the order dated 17th November, 2017. Hon ble Supreme Court also ordered in last para of the order which is reproduced here-in-below:- It is needless to state that if the amount is not deposited by the appellants within the stipulated time the revision petition filed before the High Court shall stand dismissed and the appellants would not be at liberty to approach this Court. The amount, if already deposited, shall be adjusted. The appeal is disposed of accordingly. 10. It reflects that appellants who are respondents No. 1 and 2 herein in this revision were the appellants in the Apex Court in Criminal Appeal No. 1982/2017 (Arising out of SLP (CRL.) No. 8676/2017). The both respondents were directed to pay the cheque amount i.e. ₹ 40 Lakhs within eight weeks from 17th November, 2017 and if they fails to deposit the amount in the High Court, the Criminal Revision No.624/2017 filed by the respondents herein shall stand dismissed and the respondents would not be at liberty to approach the Apex Court for the same cause. 11. After perusal of the order-sheets, it is apparen .....

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..... 7 has held as under:- 6. The object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988 was to enhance the acceptability of cheques in the settlement of liabilities. The drawer of cheque is made liable to prosecution on dishonour of cheque with safeguards to prevent harassment of honest drawers. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to amend the Act was brought in, inter-alia, to simplify the procedure to deal with such matters. The amendment includes provision for service of summons by Speed Post/Courier, summary trial and making the offence compoundable. 7. This Court has noted that the object of the statute was to facilitate smooth functioning of business transactions. The provision is necessary as in many transactions cheques were issued merely as a device to defraud the creditors. Dishonour of cheque causes incalculable loss, injury and inconvenience to the payee and credibility of business transactions suffers a setback. At the same time, it was also noted that nature of offence under Section 138 primarily related to a civil wrong and the 2002 amendment specifically made it compoundable. The offen .....

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..... P.C., Court can order for payment of compensation for the loss out of fine and if fine is not imposed, compensation can be awarded under Section 357(3) of the Cr.P.C. Learned Appellate Court awarded a fine. If fine is there, compensation can be awarded out of fine under Section 357 (1)(b) of the Cr.P.C. If fine is not imposed, then, compensation can be awarded under Section 357(3) of the Cr.P.C.. In this way, this Court finds that learned Appellate Court has not modified the sentence as per law. Hence, the reduction of sentence without assigning any reason is not sustainable and deserved to be reconsidered. This Court is not found fit to reconsider the sentence at this stage, therefore, this case should be remitted back to the Appellate Court for reconsidering the sentence. 16. On the basis of forgoing discussion, this criminal revision is partly allowed. Conviction under Section 138 of the N.I. Act is hereby affirmed and the order of sentence passed by the Appellate Court in Criminal Appeal No.2700046/2016 is hereby set aside. Learned Appellate Court is directed to restore Criminal Appeal No.2700046/2016 to its original number and by assigning the cogent reasons reconsidered the a .....

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