TMI Blog2022 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... ally enforceable debt or other liability - This Court is of the view that this argument does not merit acceptance. The explanation to Section 138 of the Act, clarifies the words debts or other liability as used in Section 138 of the Act and according to it, the debts and other liability means legally enforceable debts or other liability. Even if particular date, time and place is not mentioned in the complaint or at any place, it does not mean that the respondent was not under any debt or legally enforceable liability. The offences under Section 138 of the Act, in fact, though is criminal in nature, but, it has an element of enforcing negotiable instruments to ensure free and fair transactions. It has an element of civil liability, as well. Admittedly, both the parties had their business dealings. It is also admitted that, in fact, in the past, the respondent had paid certain amounts to the appellant - As stated, in the instant case, parties were in business dealing. They were dealing in the property. They have transactions in the past, as well. Therefore, this Court is of the view that the interest of justice would be served, if a fine of ₹ 6 Lacs is imposed on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the appellant. 4. In his examination-in-chief, the appellant filed an affidavit. He was cross examined on 08.09.2014. The respondent was examined under Section 313 of the Code on 14.12.2017. At this stage, the respondent admitted to have given two cheques to the appellant of ₹ 3 Lakh and ₹ 1 Lakh each. It is the case of the respondent that thereafter, the appellant told it to him that the cheques had been lost. Therefore, the respondent gave ₹ 1.5 Lakh, in cash to the appellant and also gave two cheques of ₹ 1.5 Lakh and ₹ 1 Lakh to the appellant. But, the appellant presented all the cheques for payment in the Bank. 5. After hearing the parties, mainly on two grounds, the respondent has been acquitted. They are:- (i) That there is evidence to show that the respondent had returned ₹ 4 Lakh as taken by him from the appellant. (ii) That the statement of the appellant does not inspire confidence, because the handwritings on both the cheques are different, though, the appellant in his statement has stated that it is the respondent, who filled up the cheques, with one pen alone. 6. Aggrieved by the acquittal, the appellant is befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in appeal should be slow to substitute the view recorded by the trial court. In the case of two possible views, the court leans towards the view which favours the accused. 10. Learned counsel for the appellant at this stage would submit that the court, in appeal against acquittal, may reverse the finding of acquittal and record conviction. In support of his contention, learned court placed reliance on the principle of law, as laid down in the case of Guru Dutt Pathak Vs. State of Uttar Pradesh, (2021) 6 SCC 116. 11. In the case of Guru Dutt Pathak (supra), the Hon ble Supreme Court referred to the various principles of law in the matters of appeal against acquittal. In paragraph 15 of the judgment, the Hon ble Supreme Court referred to various case laws. It is as hereunder:- 15. In Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under : (SCC pp. 196-199) 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .) 15. In Chandrappa v. State of Karnataka, Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the earlier judgments of this Court and laid down that : (SCC p. 374, para 20) 20. An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused. 18. In State of U.P. v. Banne [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include : (Banne case [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , SCC p. 286, para 28) 28. (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder and it has not been rebutted by the respondent. 15. Learned senior counsel would submit that the entries in the Bank record, which have been relied upon by the court below, pertain to 20.05.2010 and 16.01.2012. It is argued that if on that dates, any money was deposited in the account of the appellant, it may not be construed as discharge of the loan, which was taken by the respondent in the year 2013, because the loan taken in the year 2013, could not have been repaid sometimes in the year 2010 and 2012. It is argued that the finding with regard to the handwritings, on the cheques, has no force of evidence because the signatures and delivery of cheques have been admitted by the respondent himself. Therefore, it is submitted that the impugned judgment and order is bad in the eyes of law. The appellant has proved the case beyond reasonable doubt. The respondent is liable to be convicted for the offence under Section 138 of the Act. Therefore, the appeal deserves to be allowed. 16. On the other hand, learned counsel for the respondent would submit that in view of the explanation attached to Section 138 of the Act, there is no legally enforceable debt or other liability, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the drawer is at liberty to rebut this presumption. 20. In the instant case, the postal receipt has been filed by the appellant and information received under the Right to Information Act, 2005 has also been filed by the appellant relating to postal receipts, by which the Postal Department had informed that the item had been delivered on the respondent. In his affidavit given in the examination-in-chief, the appellant has deposed about these facts. It categorically establishes that, in fact, service had been sufficient on the respondent. There is no doubt about it. 21. On behalf of the respondent, reference has been made to explanation to Section 138 of the Act. Section 138 of the Act reads as hereunder:- 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 money standing to the credit of that account is insufficient to honour the cheque or that it exceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 24. The appellant is holder of the cheques. In view of the presumption under Section 139 of the Act, also it shall be presumed that he received the cheques for the discharge of debt. This Court will further discuss as to whether contrary to it has been proved, as held in the impugned judgment. But, before that the Court deals with the issued with regard to the handwritings on the cheques. 25. An argument has been advanced on behalf of the respondent that according to the statement of appellant, both the cheques were filled up by the respondent by one pen. But, it is argue that a bare perusal of the cheques reveal that they are written by the different pen/ink. It, according to learned counsel, doubts the case of the appellant. This argument has less significance in view of the fact that the respondent himself in his statement under Section 251 and Section 313 of the Code has admitted to have given cheques to the appellant. At the stage of Section 251 of the Code, the respondent has categorically admitted to have given c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the impugned judgment and order deserves to be set aside and respondent is liable to be convicted under Section 138 of the Act. 32. The question of sentence has also comes up for consideration. The Court heard learned counsel for the parties on the question of sentence also. 33. Learned counsel for the respondent would submit that it is appeal against acquittal. The complaint and the accused both were friends. Admittedly, as per the appellant also they were Contractors. The punishment under Section 138 of the Act may extend up to the term of two years with a fine of double the amount of cheque or with both. 34. In fact, this matter was finally heard on 28.10.2021. When the judgment was dictated in the open Court. In fact, sentence that was to be imposed on the respondent had also been dictated. But, before the judgment could be signed, this Court found that, in fact, on the question of sentence, the matter has not been deliberately effectively. Therefore, on that date, this Court passed the following order:- This is an appeal against acquittal of the respondent under Section 138 of the Negotiable Instruments Act, 1881. Arguments heard, judgment dictated in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the purpose underlying the punishment provided therein. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment of money rather than to seek retribution. The Court said : (SCC p. 670, para 17) 17. Unlike that for other forms of crime, the punishment here (insofar 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 the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. 14. This Court also took note of the number of cases involving dishonour of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonour of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended to ensure quick recovery of the amount payable under the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. Inasmuch as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage. 16. Coming then to the question whether the additional amount which the High Court has directed the appellant to pay could be levied in lieu of the sentence of imprisonment, we must keep two significant aspects in view. First and foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. The High Court has, in the case at hand, obviously overlooked the statutory limitation on its power to levy a fine. It appears to have proceeded on the basis as though payment of ..... 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