1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.320 OF 2000 Prakash Liladhar Chowdhary ...Applicant (Orig.Complainant) Vs. Nivruti Sopan Shilwant ...Respondent (Orig.Accused) None for the Applicant Mrs. A.A.Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 3RD DECEMBER, 2009 P.C. 1.The applicant and his Advocate have remained absent on the last date of hearing as well as today. Earlier this case was adjourned at the request of the Advocate for the applicant. Perused the Appeal papers and the R & P. 2.The applicant had given a friendly loan of Rs. 1,41,814/-to the respondent No.1 herein who was the accused in criminal case filed before the learned 2 Judicial Magistrate, First Class, Nashik Road. The accused had given a cheque of Rs.1,63,086/- to the complainant representing the principal amount as well as the interest. Upon the cheque being dishonoured the complaint was filed. The learned Magistrate has convicted the accused for the offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to suffer detention until rising of the Court and to pay fine of Rs.5000/- and to suffer further simple imprisonment for 3 months in default of payment of fine. 3.The execution of the cheque has not been denied. The case made out by the accused was that the applicant stole blank signed cheques from the file of the accused and a demand letter to that effect was served by the accused on the complainant under the postal certificate. That story was denied by the complainant. No evidence has been led by the accused to rebut the presumption raised under the cheque, admittedly signed by the accused amongst other cheques also. Without leading evidence the accused produced the copy of the letter sent to the complainant under postal certificate. It could not be exhibited in evidence as the accused did not examine himself and could not be cross examined. The bank was not informed to stop payment of all those cheques. The evidence of the bank 3 officer has shown the cheque being dishonoured on account of insufficient funds. The learned Magistrate has seen that the cheque was signed and issued by the accused to discharge the liability of the advance received by him. 4.Answer to question No.4 in the statement under Section 313 of the Cr.P.C of the accused shows that the cheque was executed under threats. The answer to question No. 11 in the 313 statement shows that the complainant became his partner and then took out the cheques from his file and misused them. 5.The learned Judge has framed 8 issues or points for determination. He has come to the conclusion that the case under Section 138 of the Negotiable Instruments Act has been clearly made out and that the offence is conclusively proved against the accused. The learned Magistrate has convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him. The sentence is until rising of the Court and the compensation payable by him towards the cheque of Rs.1,63,086/- is Rs. 5000/-. The reasoning of the learned Magistrate is that the amount was payable in a transaction of a civil nature and it was the first offence of the accused. 4 6.This Appeal is filed for enhancement of the sentence. The Appeal is seen to be legitimately and justifiably filed for that purpose. Offence under Section 138 of the Negotiable Instrument Act is invariably under transactions of civil nature. It is made a criminal offence by a Specific Statutory Provision. The fine of Rs.5000/- that is imposed is completely arbitrary and unjudicious, though the learned Magistrate has discretion to sentence the accused and to award fine to the extent of double the amount of the cheque to be paid to the complainant as compensation. The discretion however, must be judiciously used. It cannot be arbitrary. Atleast one of the two modes of punishment being either sentence or fine should be deterrent. In the impugned judgment neither is the sentence awarded to be served by the accused in keeping with the conclusive proof of the offence, nor is the fine imposed commensurate with the consideration that passed under the cheque which bears the statutory presumption which was not rebutted. 7.The respondent No.1 could not be served with the papers in this Revision Application at the two addresses of the respondent No.1 upon which they were sought to be served. The respondent No.1 has been served by affixation in May, 2003. 5 8.None has appeared for the respondent No.1 pursuant to service. The respondent himself has failed to appear. The facts in this case have been seen from the R & P which has been called. Since notice has been served upon respondent No.1 by affixation, the provision of Section 377(3) of the Cr.P.C is complied. 9.The order of the learned Magistrate First Class, Nashik Road dated 28 th July 2000 deserves modification on merits. It is seen that the cheque which came to be dishonoured was executed and given to the complainant since 20 th November 1996. It was presented, and dishonoured by the bankers on 29 th November 1996. 13 years after the cheque came to be dishonoured the consideration value would have more than double. However, this is a criminal prosecution. The applicant is also required to file a Civil Suit for recovery of the amount under dishonoured cheque upon payment of ad-velorum Court fees thereon. It is not known whether such suit is filed and decreed. 10.Taking an overall view of the case the compensation amount is enhanced from Rs.5000/- to Rs.1,63,086/- which is the consideration stated in the cheque, conclusively proved to have been issued by the accused and dishonoured by the bankers. 6 11.The Revision Application is allowed to that extent. Order accordingly. 12.Revision Application disposed off accordingly. (SMT. ROSHAN DALVI, J.)