1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 10 OF 2010 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 44 OF 2010 AND CRIMINAL REVISION APPLICATION NO. 19 OF 2010 CRIMINAL REVISION APPLICATION NO. 10 OF 2010 Smt. Placida Cota, Major in age, resident of House No.590, Nagwado, Betalbatim, Salcete, Goa. ... Applicant versus 1. M/s. National Marketing Company a proprietary concern of Smt. Olga Monseratte, with office at Villa Monte, behind Durga Petrol Pump, Fatorda, Margao, Goa through their attorney Shri Joseph Monseratte, Major in age, resident at Villa Monte Behind Durga Petrol Pump, Fatorda, Margao, by virtue of power of attorney dated 5-5-2004. 2. State of Goa, through the Public Prosecutor, Panaji, Goa. ... Respondents 2 CRIMINAL REVISION APPLICATION NO. 19 OF 2010 M/s. National Marketing Company, a proprietary concern of Smt.Olga Monseratte, with office at Villa Monte, Behind Petrol Pump, Fatorda, Margao, Goa, Through attorney Shri Joseph Monseratte, Major in age, resident of VillaMonte, Behind Durga Petrol Pump, Fatorda, Margao, by virtue of Power of attorney dated 05-05-2004. ... Applicant versus 1. Smt. Placida Cota, 62 years, major in age, resident of House No.590, Nagwado, Betalbatim, Salcete, Goa. 2. State of Goa through Public Prosecutor. ... Respondents Shri A. Monteiro, Advocate for the Applicants. Shri J. P. Mulgaonkar, Advocate for Respondent No.1. Shri C. A. Ferreira, Public Prosecutor for Respondent No.2. 3 CORAM : N. A. BRITTO, J. DATE : 22ND JUNE, 2010. JUDGMENT These two Criminal Revision Applications can be conveniently disposed off by this common Judgment. The first is filed by the accused and is directed against Judgment dated 10-11-2009 of the learned Additional Sessions Judge, Margao upholding the conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881. The second has been filed by the Complainant and is also directed against the same Judgment of the learned Additional Sessions Judge, Margao modifying the sentence imposed upon the accused by the learned J.M.F.C. 2. The case of the Complainant was that the Complainant is a proprietary concern of Smt. Olga Monseratte and that the accused had issued a cheque No. 813735 dated 12-3-2004 for Rs.6,11,000/- to the Complainant towards payment of an amount of Rs.6,27,972/- which was misappropriated by Shanti Cota in collusion with the accused and the said cheque when presented for payment on 13-3-2004 was returned dishonoured on the ground that the payment was stopped by the drawer. The Complainant sent notice dated 25-3-2004 demanding the said payment. The accused received the notice but did not comply with the same, and, therefore the complaint was filed through 4 the attorney of the Complainant. 3. The Complainant examined herself through the said attorney and the proprietor of the Complainant was examined by the accused as her witness. The Complainant also examined other witnesses and from the evidence of the Complainant's witness Shri Hiru Khiyani/PW2 it is evident that the accused had an account with State Bank of India, Agricultural Branch, Margao. She did not have cheque book facility but the accused was given two cheque leaves, one of which was given by the accused to the Complainant dated 12-3-2004 for Rs.6,11,000/- 4. According to the Complainant, the cheque was given on 5-3-2004 postdated 12-3-2004. The accused had an amount of Rs.6,28,791.08 as on 9-3-2004 in her account. On 9-3-2004 the accused gave stop payment instructions to the Bank and when the subject cheque was presented on 12-3-2004 obviously it was dishonoured. The other cheque leaf was used by the accused on 15-3-2004 to withdraw a sum of Rs.6,11,000/-. That this amount was paid by the accused to the Complainant is a fact which has been disbelieved by both the Courts below. 5. There is no dispute that the daughter of the accused was working for the Complainant from November, 1997 to 25th February, 2004 and there 5 were allegations that she had misappropriated certain amounts of the Complainant in collusion with the accused and the subject cheque was given by the accused in settlement of the dues payable to the Complainant on account of the said misappropriation. The accused, in her statement recorded under Section 313 Cr. P.C. stated that the subject cheque was forcefully taken by the Complainant and the Complainant also took cash of Rs.6,11,000/-, after the cheque was forcefully taken. She also stated that the said attorney Joseph Monseratte came to her house and forcefully took another Rs.9000/-. 6. The learned J.M.F.C. after taking into consideration the evidence produced by the Complainant and the accused, came to the conclusion that there was no evidence on record adduced by the accused to show under what circumstances the cheque came to be given to the Complainant and that the only plea taken by the accused was that the said Joseph Monseratte had forcefully taken the cheque from the accused, but in the absence of any explanation as to where and how the cheque was taken and in the absence of any police complaint filed by the accused as regards the said cheque being forcefully taken from the accused, the contention of the accused was difficult to be believed. The learned J.M.F.C. observed that the facts stated by the Complainant's attorney(PW1) to the effect that the amount was misappropriated by the daughter of the accused by name Shanti Cota was admitted by the accused and the accused knelt down and asked for pardon 6 touching his feet and for that reason the cheque was issued to the Complainant in respect of the misappropriated amount which facts were corroborated by the proprietor of the Complainant who was examined by the accused as her witness. The learned J.M.F.C., therefore, proceeded to convict and sentence the accused to simple imprisonment for a period of three months and to pay compensation of Rs.7,00,000/-. The learned J.M.F.C. also came to the conclusion that the defence of the accused was improbable and in fact the defence version(of DW1) corroborated the version of the Complainant. 7. The learned Additional Sessions Judge held that the learned trial Court had duly considered that the cheque was issued by the accused from the account maintained by her and that the learned J.M.F.C. had taken into consideration the provisions of Sections 138 and 139 of the Negotiable Instruments Act, 1881, and Section 114 of the Evidence Act and based on various authorities of the Apex Court and of the High Courts had held the accused guilty under Section 138 of the said Act. 8. Shri Monteiro, the learned Counsel, on behalf of the accused submits that the verification of the complaint was done by an affidavit which was not permissible in law. In my view, it is too late in the day to make such a submission, after the trial is over. A trial cannot be vitiated because verification or recording of statement on oath was done by way of an affidavit. 7 Learned Counsel next submits that Section 138 of the Act could be invoked only when a cheque is dishonoured on account of insufficient funds in the account of the accused, and not in a case where the accused has given instructions to the Bank to stop payment. Learned Counsel further submits that the penal provision of Section 138 of the Act has to be strictly construed and this regard is placed on M. D. Thomas v. P. S. Jaleel and another((2000) 14 SCC 398) wherein the Apex Court has held that a notice served on the wife was not sufficient compliance with the requirement of clause (b) of proviso to Section 138 of the said Act. According to the learned Counsel, the cheque was given on 5-3-2004 and thereafter the Complainant started demanding an amount more than which was due on the cheque as the amount misappropriated by the daughter of the accused and for that reason the accused was compelled to give instructions to the Bank to stop payment. 9. There is no doubt that the provisions of a penal statute have got to be strictly construed. I am unable to accept the submission of the learned Counsel for the Apex Court has clearly held in GoaPlast(P) Ltd. v. Chico Ursula D'Souza and another((2003) 3 SCC 232) that notwithstanding that payment was stopped prior to the due date of the cheque, Section 138 was still applicable. Both the Courts below have considered the evidence produced in a proper perspective and has convicted the accused under Section 138 of the Negotiable Instruments Act, 1881. The findings are concurrent and are in 8 accordance with law and therefore call for no interference in revisional jurisdiction. 10. The learned Additional Sessions Judge, as regards the sentence, observed that the accused had attained the age of 65 years and as she was a Senior Citizen and therefore it was not justifiable to send her to jail and on that count modified the sentence by directing the accused to pay only compensation of Rs.7,00,000/-, and in default to undergo three months simple imprisonment, an imprisonment which the learned J.M.F.C. had not specified in the order dated 26-3-2007. Learned Counsel on behalf of the Complainant submits that the fact that the accused had attained 65 years of age was not at all germane for the purpose of sentencing her and thus the learned Additional Sessions Judge committed an illegality by doing away with the substantive sentence imposed upon the accused, by the learned J.M.F.C. 11. Section 138 of the Act was amended w.e.f. 6-2-2003 enhancing the punishment from one year to two years and all that the learned Magistrate had awarded to the accused was a bare three months simple imprisonment. This is a case where the daughter of the accused who was employed with the Complainant had misappropriated the amounts due to the Complainant and the cheque was given by the accused towards repayment of the same. Not only the cheque was dishonoured on account of stop payment instructions given by the 9 accused but the accused also withdrew a sum of Rs.6,11,000/-, and yet did not pay the sum to the Complainant. The Complainant herself had given her age in the cause title of the appeal as 62 years. The appeal was filed on 20-4-2009, and was disposed off on 10-11-2009. Therefore, one fails to understand as to how the accused could have attained the age of 65 years. There were no mitigating circumstances in favour of the accused for the learned Additional Sessions Judge to have done away with the substantive sentence imposed upon the accused. The learned Additional Sessions Judge does not seem to have taken into consideration the object behind Section 138 of the Act nor behind enhancing the punishment. The object was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the account or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. One year punishment was found to be inadequate. The existing provisions were found to be deficient in dealing with the dishonour of the cheques. 12. Punishment for any offence must be commensurate to the offence committed but there are no golden scales to measure it either. Deterrence remains of one of the objects of imposing punishment. As George Saville would say “men are not hanged for stealing horses but that horses may not be stolen”. Seniority cannot earn immunity from imposing substantive 10 sentence. In Suganthi Suresh Kumar (AIR 2002 SC 681) the Apex Court held that “if the amount had been paid to the Complainant, there perhaps would have been justification by imposing a flea bite sentence as had been chosen by the trial Court in that case but in a case where the amount covered by the cheque remained unpaid, it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case”. 13. As a result, the Criminal Revision Application No.10 of 2010 is hereby dismissed. Criminal Revision Application No.19 of 2010 is hereby allowed. The Judgment of the learned Additional Sessions Judge as regards sentence is hereby set aside and that of the learned J.M.F.C. is restored. It is clarified that in default of payment of compensation of Rs.7,00,000/- the accused shall undergo three months simple imprisonment as ordered by the learned Additional Sessions Judge. N. A. BRITTO, J. RD