RAJKUMAR Vs. SURESH

JUDGEMENT

(1.) Heard learned counsel for the applicant and learned counsel for the respondent at length.

(2.) The Complainant, dissatisfied with the punishment, has impugned the order passed by the learned Judicial Magistrate First Class, Dondaicha, in STC No.83 of 2003 (Old STCC No.1250 of 1998) dtd. 4/8/2004.

(3.) Learned counsel for the applicant would submit that the accused was a businessman. He has a business selling utensils and a seasonal business selling crackers. The petitioner/complainant has proved the legally enforceable debt. However, while imposing the sentence, the learned Magistrate has imposed disproportionate imprisonment till the rising of the Court and a fine of Rs.1,000.00 only against the cheque amount of Rs.10,000.00. He would argue that the respondent had sufficient income. He was very well able to pay at least Rs.10,000.00. He also argued that the Court did not give proper reasons for such leniency, imposing a sentence and penalty less than provided in the law. Referring to Sec. 138 of the Negotiable Instruments Act, he would argue that the proceeding under Sec. 138 of the Negotiable Instruments Act is quasi-civil and quasicriminal. The said Act guarantees the debt. The order granting compensation under the said act has the force of the money decree. The Court has the power to impose a fine to the extent, twice the amount of the cheque. However, the learned Magistrate ignored the substantial provisions. The complainant was pursuing his complaint for so many years. He has spent a huge amount on litigation, lawyer's fee and suffered a loss of his business. The learned Magistrate ignored the pragmatic aspects of the losses suffered by the complainant while imposing the sentence and fine. The applicant/complainant was at least entitled to receive the compensation to the extent of the cheque amount. Since the imprisonment and fine imposed upon the accused by the learned Magistrate is disproportionate, it may kindly be modified.