PARVEEZ ALIAS MOHMMED PARVEEZ Vs. SULAIMAN

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) THE petitioner was the accused before the court below, whereby the complainant had alleged commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for brevity). It was alleged that the petitioner had borrowed a sum of Rs.58,000/-,assuring that it would be repaid within a period of two months. On the very day, the petitioner is said to have issued a cheque bearing No.472117 dated 30.06.2005 for the said sum of Rs.58,000/-, drawn on Syndicate Bank, Chikmagalur Branch. Thereafter,the complainant is said to have presented the cheque for encashment through his bank, which was returned with an endorsement that the cheque was dishonoured for want of sufficient funds. Thereafter, a legal notice having been issued,and the petitioner having failed to comply with the terms of the notice, the complaint followed. The petitioner upon receiving summons, had entered appearance and resisted the complaint. The respondent having tendered evidence and the petitioner himself having tendered evidence, the court below, after considering the material on record, had proceeded to hold that the offence alleged was proved and therefore,convicted the petitioner to simple imprisonment for a period of one year and to pay a fine of Rs.60,000/-, out of which Rs.58,000/- was to be paid as compensation to the respondent. That having been carried in appeal, the Appellate Court has affirmed the judgment of the Trial Court. It is that which is under challenge in the present petition.

(3.) GIVEN the above facts and circumstances, the counsel for the respondent is right in his contention that the burden was entirely on the petitioner to hold that there was no presumption in favour of the respondent insofar as the liability under the cheque is concerned. In that view of the matter, there is no merit in the grounds raised in the petition and the petition is liable to be rejected. However, it is to be noticed that while imposing the punishment, the courts below have not only thought it fit to impose the punishment by way of imprisonment, but have also directed payment of fine exceeding the cheque amount. This in fact would result in the petitioner suffering a punishment twice over. It is true that Section 138 of the NI Act does provide for to the court to impose punishment which may include imprisonment as well as fine, which may extend to twice the extent of the cheque. Merely because the power is available, the exercise of the same ought to be judicious and should not result in a punishment which is disproportionate with the commission of the offence. Therefore, in the opinion of this Court, ends of justice would be met if a higher amount of fine is imposed, which in turn could be paid as compensation to the respondent, and the punishment of imprisonment is eschewed.