R RAMESHA Vs. K PRASANNAKUMAR

JUDGEMENT

(1.) HEARD the learned counsel for the appellant.

(2.) THE appellant, who is the complainant before the court below had alleged that the respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act', for brevity). It was the case of the complainant that the respondent herein had borrowed a sum of Rs.1,25,000/ - as on 1.1.2006 and had agreed to repay the same within 40 days and when he failed to repay on repeated demands, respondent had issued cheque on 2.2.2006 and requested to pay the balance amount of Rs.75,000/ - and thereafter had issued a cheque for Rs.75,000/ - which is also dated 2.2.2006. When the same was presented for encashment, the same was dishonoured for want of sufficient funds. It is thereafter the complainant having made a demand which was not complied with, and the complaint was lodged for an offence punishable under Section 138 of the N.I.Act. The Respondent had contested the same and had contended that he had borrowed a sum of Rs.10,000/ - and blank cheques were issued to the complainant as security for the amount borrowed by him. The complainant has misused the same. This contention has been negatived by the Court below and he has been convicted and sentenced to undergo rigorous imprisonment for a period of one year and shall pay a fine of Rs.1,40,000/ -. Out of the fine amount a sum of Rs.1,30,000/ - was to be paid as compensation to the complainant under Section 357 of the Code of Criminal Procedur 1973. That having been challenged in appeal, the Appellate Court had allowed the appeal and set aside the judgment of the Trial Court following the judgment of the Supreme Court in Krishna Janardhan Bhat vs Dattatraya G Hegde, 2008 AIR(SCW) 738.

(3.) IT is that which is under challenge in the present case on hand. Krishna Janardhan Bhat's case has been held to be no longer good law in a larger bench judgment in the case of Rangappa vs Mohan, 2010 AIR(SC) 1898. Therefore, the Appellate Court proceeding on the footing that the initial burden was cast on the complainant to establish that the cheque was issued in discharge of a legal liability and since the complainant had failed to establish the same, the complaint was not maintainable and having acquitted the accused by allowing the appeal and setting aside the judgment of the trial Court is bad in law. Further it is necessary to note that though there is a serious dispute about the fact of money being lent and borrowed and that the further fact that the petitioner and the respondent were said to be close friends, the proceeding was not in the nature of suit for recovery of money. Therefore a large amount of fine being imposed and a substantial amount having ordered to be paid as compensation may result in the punishment being disproportionate and would cause hardship to the respondent who is said to be a school teacher, who is out of work. Though the petitioner would dispute that position and claims that the respondent is very well to do. In any event, the punishment being on the higher side needs to be substantially scaled down. Hence, on the face of it, the appeal is allowed and the judgment of the lower Appellate Court is set aside and the portion of judgment imposing fine of Rs.1,40,000/ - is modified and the respondent is ordered to pay a sum of Rs.90,000/ -. It is made clear that the respondent shall pay the said sum of fine which shall be paid as compensation under section 357 of the Criminal Procedure Code and shall deposit the same within a period of 15 days, in default of which the respondent shall suffer simple imprisonment for 30 days. It is to be further noticed that apart from imposing fine the court has also punished the respondent by way of rigorous imprisonment for one year, which is totally disproportionate and cannot be sustained as the offence is in the nature of a quasi criminal offence and the object of the legislation is to ensure that cheques issued are honoured and therefore, does not warrant such punishment. Consequently, it is to be noted that the punishment indicated in the statute book is more in terrorem and it should not be invoked mechanically and should be reserved for cases of habitual offenders and not in such cases as the present one on hand and therefore, is set aside.