TMI Blog2022 (6) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... accused no. 1 as she is not the drawer of the cheque but he observed that the term of sentence imposed upon the accused appears to be excessive. He has not explained why it appears to be excessive to the appellate court because the maximum sentence of imprisonment that a Magistrate can award under Section 138 of the Negotiable Instruments Act is for two years - the finding of the first appellate court needs to be interfered because though the offence under Section 138 of the Negotiable Instruments Act is a basically documentary offence but still such proceeding can never be considered as money recovery proceeding. Once it is proved that the offence has been committed, court is under obligation to impose appropriate sentence to the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.1 Smt. Rupa Karpas. But said order of sentence was revised by the appellate court by his impugned judgment dated 6th September, 2018 to the extent that the Appellant/ accused no. 2 to suffer sentence of simple imprisonment till rising of the court and also to pay a sum of Rs. 5,92, 447/- only as compensation to the complainant as per Section 357 (3) of the Code of Criminal Procedure. 4. Learned counsel for the petitioner Mr. Pinaki Ranjan Mitra strenuously argued that no reason has been assigned by the learned appellate court for remission of sentence though he did not interfere with the finding of the trial court who has convicted the respondent no. 2 and acquitted respondent no.1. Moreover, he contended that in view of the Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the term of sentence imposed upon the accused no. 2 appear to me to be excessive. I am of the opinion that in cases involving offence under Section 138 of the N.I. Act justice can be served better if the complaint is provided with more pecuniary relief than sentencing the accused persons to imprisonment. 7. Appellate Court specifically observed that the learned Magistrate has rightly convicted the accused no. 2 for committing offence under Section 138 of the Negotiable Instruments Act and he has also rightly acquitted accused no. 1 as she is not the drawer of the cheque but he observed that the term of sentence imposed upon the accused appears to be excessive. He has not explained why it appears to be excessive to the appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 138 of N.I. Act which has maximum sentence upto two years, thought it fit to impose the sentence till rise of court , without applying it's mind as to why it should be reduced from three months to till rise of the court . Such misplaced generosity on the part of the courts while imposing sentence has been seriously deprecated by Apex Court in Suganthi Suresh Kumar Vs. Jagdeeshan, reported in AIR 2002 SC 681. 9. In the said case two cheques drawn by the respondent in favour of the appellant were dishonoured by the drawee bank. The total amount covered by the cheques was Rs 4,50,000. The trial Magistrate convicted the respondent under Section 138 of the Negotiable Instruments Act but sentenced him only to undergo imprisonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial court shall remain unaltered. The finding of both the courts below respondent no. 2 as convict and acquitting respondent no.1 on the ground that she is not the drawer of the cheque, remains uninterfered by this court. Opposite no 2/ convict Swapan Kumar Karpas is directed to surrender before the Trial Court within 30days from the communication of this order for the purpose of undergoing sentence and to pay compensation as awarded by the Trial Court. In default Ld. Trial Court will be at liberty to proceed in accordance with law and complainant will be at liberty to take appropriate steps for realization of compensation amount along with interest @ 9% p.a. from the date of judgment passed by Trial Court till recovery. 11. CRR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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