Kaushalya Devi Massand vs Roopkishore Khore

2. On a complaint filed by the Appellant herein, Smt. Kaushalya Devi

Massand, the Respondent herein, Roopkishore, was convicted by the Judicial

Magistrate First Class, Indore (M.P.), under Section 138 of the Negotiable

Instruments Act, 1881, in Criminal Case No.445 of 2000. Having regard to the

fact that the Respondent had deposited a sum of Rs.3,50,000/-, as against

the cheque amounting to Rs.2 lakhs, the learned Magistrate was of the view

that sentence of fine only would suffice without awarding any jail sentence.

The learned Magistrate, accordingly, sentenced the Respondent to pay a fine

of Rs.4 lakhs which was to be paid to the Appellant herein as compensation.

However, the learned Magistrate also indicated that a sum of Rs.3,50,000/-

had already been deposited and that the balance amounting to Rs.50,000/-

was to be deposited by the Respondent and if deposited, the same was to be

paid to the Appellant. On failure to deposit the said amount of Rs.50,000/-,

the Respondent would have to undergo two months' Rigorous Imprisonment.

3. The order of the learned Magistrate was challenged by the Respondent

before the learned Third Upper Sessions Judge, Indore (M.P.), by way of

Criminal Revision No.593 of 2006. The learned Sessions Judge while

confirming the judgment of conviction passed by the Magistrate, remanded

the matter to the learned Magistrate for a fresh hearing on the question of

quantum of sentence and to pass an order accordingly.

4. The said orders of the learned Sessions Judge and the learned

Magistrate dated 27th December, 2007, and 23rd February, 2007,

respectively are the subject matter of the present appeal. Incidentally, the

appeal has been filed by the complainant, Smt. Kaushalya Devi Massand,

who is being represented by her son, Shri Harish Massand, on the strength of

a Power of Attorney executed by the Appellant in his favour.

5. Shri Massand submitted that the offence was in respect of three

cheques dated 1st May, 1997, 15th May, 1997 and 30th May, 1997, for Rs.1

lakh each. The said cheques were issued in lieu of the payment of

consideration against the sale of property. On presentation of the cheques to

the Bank, the same were dishonoured on the ground of insufficient funds.

Subsequently, in lieu of the three cheques which had been dishonoured, four

cheques drawn on Central Bank of India, Sanyogitaganj Branch, Indore, were

issued by the Respondent to the Appellant, namely, (i) Cheque No.0121035

dated 15th June, 1999 for Rs.50,000/-; (ii) Cheque No.0121036 dated 15th

July, 1999 for Rs.1 lakh; (iii) Cheque No.0121037 dated 15th August, 1999

for Rs.50,000/-; and (iv) Cheque No.0121038 dated 15th September, 1999 for

Rs.1 lakh. The said cheques presented to the Bank were again dishonoured

due to insufficient funds resulting in the filing of the complaint, as indicated

hereinabove.

6. Shri Massand submitted that since 1997, the Appellant, an old

widowed lady, was subjected to unnecessary harassment for the last 14

years and the Respondent had not even been punished with a jail sentence

for a day, despite the severe inconvenience and trouble which the Appellant

had to suffer on account of the dishonesty of the Respondent and the fraud

perpetrated by him. Shri Massand pointed out that while not sentencing the

Respondent to a jail sentence despite the enormity of the offence committed

by the Respondent, ironically the Magistrate sentenced the Respondent to

two months' Rigorous Imprisonment in default of payment of Rs.50,000/-

towards the fine/compensation of Rs.4 lakhs. Shri Massand also took us

through the order-sheet of the case before the learned Magistrate to show the

manner in which the proceedings had been prolonged by the Respondent.

7. Shri Massand submitted that in order to maintain the faith of the people

in the judicial system, it was only proper that a jail sentence be awarded to

the Respondent to serve as a deterrent to others involved in similar activities.

8. Mr. Shakil Ahmed Syed, learned Advocate, who appeared for the

Respondent, submitted that after an interval of 14 years it would be unjust to

sentence the Respondent to a jail term, especially when the initial liability of

Rs.2 lakhs had been increased to Rs.4 lakhs by the Magistrate and to Rs.6

lakhs by the High Court. Learned Counsel submitted that the Respondent

was ready to pay a further sum of Rs.2 lakhs towards the compensation

amount. In addition, learned counsel submitted that a jail sentence for an

offence under Section 138 of the Negotiable Instruments Act, 1881, was not

mandatory and it was within the discretion of the Magistrate to award a

sentence of fine only, as has been done in the instant case.

9. Having considered the submissions made on behalf of the parties, we

are of the view that the gravity of a complaint under the Negotiable

Instruments Act cannot be equated with an offence under the provisions of

the Indian Penal Code or other criminal offences. An offence under Section

138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil

wrong which has been given criminal overtones. The learned Magistrate, in

his wisdom was of the view that imposition of a fine payable as compensation

to the Appellant was sufficient to meet the ends of justice in the instant case.

Except having regard to the submission made that the Appellant/

complainant, is a widowed lady of advanced age, there is no other special

circumstance which calls for interference with the order of the learned

Magistrate, as confirmed by the High Court, with an increased fine. After an

interval of 14 years, we are not inclined to interfere with the order of the High

Court impugned in the appeal, except to the extent of increasing the amount

of compensation payable by a further sum of Rs.2 lakhs. The said amount of

Rs.2 lakhs in addition to the sum of Rs.6 lakhs already directed to be paid by

the Respondent to the Appellant, shall be deposited in the Trial Court within

two weeks from date and upon such deposit being made, the Appellant will

be at liberty to withdraw the same by way of compensation, together with the

amounts already deposited, if not already withdrawn. In default of such

deposit, the Appellant shall undergo one month's simple imprisonment.

10. The appeal is partly allowed to the aforesaid extent.