1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.582 OF 2009 IN C.C.NO.149/S/2003 WITH CRIMINAL APPLICATION NO.557 OF 2009 WITH CRIMINAL REVISION APPLICATION NO.583 OF 2009 IN C.C.NO.458/S/2003 WITH CRIMINAL APPLICATION NO.558 OF 2009 WITH CRIMINAL REVISION APPLICATION NO.584 OF 2009 IN C.C.NO.282/S/2003 WITH CRIMINAL APPLICATION NO.559 OF 2009 WITH CRIMINAL REVISION APPLICATION NO.585 OF 2009 IN C.C.NO.23/S/2003 WITH CRIMINAL APPLICATION NO.560 OF 2009 Suresh S. Mulani ...Applicant. v/s. The State and Anr. ...Respondents. Mr. Jahangir Khajotia, adv. For the Applicant. Mr. P.S.Hingorani, APP for the Respondent/State. None for the R.No.2. CORAM : J.H. BHATIA, J. DATED : APRIL 6, 2011. P.C. 2 1 Heard the learned counsel for the revision applicant, who is original accused. Respondent no.2 is served. On the last date an advocate had appeared for the respondent no.2 and it was made clear that these applications will be heard finally at the stage of admission. However, today when the matters are called out none appears for the respondent no.2. 2 These four revision applications arise out of four complaints filed by the respondent no.2 Jayesh Shah under Section 138 of the Negotiable Instruments Act. According to him in discharge of legally enforceable liability in each case, the accused/revision applicant had issued in all eight cheques of different dates. Two cheques dated 1.1.2003 were for an amount of Rs.2 lac and for Rs.90,000/-. Similarly two cheques dated 1.3.2003 were also of Rs.2,00,000/- and Rs.90,000/- respectively. Two cheques dated 1.4.2003 were also of Rs.2 lac and Rs. 90,000/- respectively. Two cheques were dated 1.5.2003 for the amounts of Rs.2,20,000/- and Rs.84,999/- respectively. All these cheques were drawn against the account of the accused maintained with HSBC Bank. Cheques were deposited for presentation to the said bank. After presentation, cheques were returned unpaid with remarks 'Payment 3 stopped'. In spite of service of statutory notice, the accused failed to make the payment within the stipulated period and, therefore, four different complaints were filed as per the dates of the said cheques. During the cross-examination of the complainant, it was revealed that he had handed over 54,000 shares of a company of Rs.10/- each to Jitesh Shah, who is brother of the accused and he had also given an amount of Rs.11,45,000/- to Jitesh Shah for investment in BDS Private Ltd. Company. Said Jitesh Shah is a director of that company while the present accused is chairman of that company. The accused issued the above referred 8 cheques to the complainant against his personal account to discharge the liability of the company and they were dishonoured. According to the accused, he was not personally liable to make the payment and, therefore, cheques issued were not for discharge of any legally enforceable liability and, therefore, section 138 of the Negotiable Instruments Act is not applicable. The trial Court rejected this contention after hearing the evidence for the parties and convicted the accused in each case and sentenced him to undergo S.I. for three months and to pay the cheque amount as compensation. The appeals preferred by the accused were also dismissed by the sessions Court. 3 After perusal of the record and after hearing the learned 4 counsel for the applicant, it appears that B.D.S. Private Ltd. Company is a company of family members of the present applicant and it is controlled by him, his brother and other family members. Even though the amounts were received by his brother Jitesh Shah from the complainant, it was taken for the company and the applicant being the chairman of that company and head of the family, he had issued the cheques drawn against his personal account. It was clearly issued in discharge of liability of the said company of which he is chairman. Taking into consideration the facts, I do not find any illegality or irregularity in the conviction of the accused under Section 138 of the Negotiable Instruments Act. 4 The learned counsel for the petitioner contended that cheque amounts in all the four cases have been deposited and 50% of that amount is already withdrawn by the complainant and, therefore, sentence of imprisonment may be quashed. The offence under Section 138 is punishable with imprisonment for a term, which may extend to two years or with fine, which may extend to the twice of the cheque amount or with both. Applicant is aged about 60 years and therefore, he is senior citizen. In my opinion, if amount of compensation is appropriately increased and sentence of imprisonment is reduced, interest of justice 5 will be better sub-served in these cases. Amounts were received by the accused and his company prior to 1.1.2003 and cheques were issued on different dates beginning with 1st January and ending 1st May, 2003. The learned counsel for the applicant contends that on 18.10.2010 whole of the cheque amount has been deposited. It means for a period of 8 years, the amount was used by the accused and his company. In my opinion, mere payment of the cheque amount as compensation would not be sufficient to meet the ends of justice. Though it is not a civil suit wherein interest could be awarded as per the market rates because these are the commercial transactions, still in my opinion, compensation amount may be about 10% p.a. over and above the cheque amounts. As the accused and his company used that money for a period of 8 years, compensation amount will have to be increased accordingly. 5 Revision applications are partly allowed. Conviction of the accused/applicant under Section 138 of the Negotiable Instruments Act is maintained. However, the sentence awarded by the trial Court stands modified as follows: 6 In criminal case no.149/S/2003, Criminal Case No. 282/S/2003 and Criminal Case No.23/S/2003, the applicant/accused shall undergo simple imprisonment till rising of the Court and to pay an 6 amount of Rs.4,20,000/- as compensation inclusive of the cheque amount in each case. 7 In Criminal Case No.458/S/2004, he is sentenced to simple imprisonment till rising of the Court and to pay compensation of Rs. 6,30,000/- inclusive of the cheque amount. The amount, which is already deposited, shall be adjusted against the compensation now awarded and the balance amount shall be deposited with the trial Court within four weeks. Applicant shall appear before the trial Court to undergo simple imprisonment. 8 All the revision applications stand disposed off accordingly. 9 As the revision applications are disposed off, other criminal applications do not survive and stand disposed off accordingly. (J.H. BHATIA,J.)