TMI Blog2019 (8) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 directed to restore the appeal to its original number and by assigning the cogent reasons reconsidered the appeal on the point of sentence - revision partly allowed. - Criminal Revision No. 638/2017 - - - Dated:- 2-8-2019 - Single Bench : Justice Shri Vishnu Pratap Singh Chauhan For the Applicant : Shri Mukesh Agrawal, learned counsel And Shri Mukesh Kumar Shukla, learned counsel For the Respondent : Shri Prakash Upadhyay, learned counsel ORDER This criminal revision has been preferred by the applicant under Section 401 read with Section 482 of the Cr.P.C. being aggrieved by the judgment and order dated 07.12.2016 whereby learned Appellate Court below jointly disposed of Appeal No. 270046/2016 filed by the respondents and Appeal No. 2700073/2016 filed by the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rate of 9% per annum interest and prayed to modify @ 16% per annum instead of 9% per annum. 4. Learned Appellate Court after hearing both parties, delivered a common judgment dated 07.12.2016 in both appeal, dismissed the Criminal Appeal No. 2700073/2016 filed by the applicant herein and partly allowed the Criminal Appeal No. 2700046/2016 by affirming the conviction passed against respondents No. 1 and 2 and modified the sentence of imprisonment of 1 year R.I. into till rising of the Court and also imposed a additional fine of ₹ 10,000/- for each counts total ₹ 40,000/- against respondent No. 1 and affirmed compensation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 apparent that respondents No. 1 and 2 have not deposited the amount within the stipulated period as ordered by the Hon ble Apex Court. The Co-ordinate Bench of this Court vide order dated 13.08.2018, dismissed Criminal Revision No. 624/2017 for not obeying the order of the Supreme Court. On the basis of the forgoing discussion, this Court finds that when the Criminal Revision No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revent 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 offence was also described as regulatory offence . The burden of proof was on the accused in view of presumption under Section 139 and the standard of proof was of preponderance of probabilities . The object of the provision was described as both punitive as well as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 appeal on the point of sentence. So far as dismissal of Appeal No.2700073/2016 is concerned no interference is required in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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