-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.427 OF 2008 APPEAL NO.427 OF 2008 APPEAL NO.427 OF 2008 Bombay Mineral Ltd. ...Appellant vs. Meena Agency & Others ...Respondents Mr.P.D.Desai for the Appellant Mr.U.S.Shinde,A.P.P. for State CORAM: CORAM: CORAM: SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. DATE DATE DATE : JUNE 24,2008. : JUNE 24,2008. : JUNE 24,2008. P.C.: P.C.: P.C.: 1. The Appellant-original complainant has preferred this Appeal for enhancement of the punishment awarded to the respondents-original accused by the learned Metropolitan Magistrate, 33rd Court, Mumbai by order dated 19th March 2008 in case No.256/SS of 2007. By the said judgment and order the learned Magistrate convicted the Respondents-accused under section 138 of Negotiable Instrument Act and sentenced them to pay fine of Rs.1000/- each in default S.I. for one week. The Respondents-accused were also directed to pay Rs.15,00,000/- (Rupees fifteen lakhs only) to the complainant as compensation under section 357(3) of Cr.P.C. 2. Heard the learned counsel for the appellant. I have perused the Judgment and Order and the evidence which has been annexed by the Appellant. 3. The cheque in question is for Rs.15,00,000/-. On perusal -2- of the papers it is seen Respondents-accused were ready and willing to make payment on the first day that they appeared. Not only this but they have also submitted a xerox copy of the demand draft of the cheque amount dated 7-8-2007. The Respondents also brought the original demand draft to give it to the complainant. On that day, the complainant sought adjournment to give say. Thereafter, the proceeding continued. In the reply by the complainant dated 19-12-2007 he expressed his unwillingness to settle the matter. He claimed interest at the rate of 24% on the cheque amount. On 8-2-2008 the accused also tendered an application stating that they are ready to repay the amount with interest. The complainant as well as the counsel for the complainant refused to accept this offer and the complainant insisted that the accused be heard on sentence. 4. As far as recording of plea of the accused on sentence is concerned, the pursis submitted by the counsel for the accused is on record. The said pursis has been signed by all the accused. Not only that but all the accused have verified that they have appointed Advocate Devassy for recording of plea on their behalf. In such case, it is clear that the accused are not required to be heard on the point of sentence and submission of the counsel for the accused would suffice on the point of sentence. -3- 5. The accused have shown their willingness to pay the cheque amount when they first appeared in court. It is seen that the accused were ready to plead guilty and ready to pay the cheque amount as well as interest. I have noticed that though the accused were ready to pay, the complainant wants to see that the accused are punished and sent to jail. The learned counsel for the Appellant has pointed out the provisions of section 138 of the Negotiable Instruments Act wherein it is provided that the offence is punishable with imprisonment for a term which may extend to years. On perusal of the section it is seen that the sentence of imprisonment is not mandatory and there is an option in the section which says that the offence may be punishable with imprisonment or with fine. Thus, it is not mandatory that sentence of imprisonment has to be imposed. 6. Thereafter, the learned counsel for the Appellant pointed out that the fine amount should extend to twice the cheque amount. As far as this aspect is concerned, section 138 makes it very clear that the offence will be punishable with fine which may extend to twice the amount. Thus, the word used is ‘may’ and not ‘shall’, which means that it is left to discretion of the court as to what amount of fine should be imposed on the accused. Accused no.1 is a partnership firm , accused Nos. 3 and 4 are ladies. In fact, accused No.3 is an old lady aged about 74 years. They belong to reputed family. -4- They have shown their bonafides and willingness right from the beginning to pay the amount of cheque. The accused have also shown their willingness to pay the interest as well. It is seen that the complainant was not interested in money and he was only interested in seeing that the accused persons should be punished with imprisonment. Taking undue advantage of their status in society the complainant was insisting that the accused be sent behind bars so that he would be able to extract maximum amount of money from the accused persons. Looking to the fact that accused nos.3 and 4 are ladies and their status and reputation, the learned Magistrate was of the view that it was not desirable to send them behind bars. The learned Magistrate has observed that the same punishment should be imposed on the accused no.2 so that there should not be any discrimination among the accused. It appears that the complainant is not interested in receiving the amount but wants to take undue advantage of the fact that two of the accused are ladies and one of them is an aged lady i.e. accused No.3 who is 74 years of age. On the other hand, the conduct of the accused clearly shows that they were ready and willing to make payment at the first stage itself i.e. on the date on which they first appeared before the court. 7. It is seen that the accused have shown their bonafides by depositing the cheque in Court. The accused were also ready to plead guilty. Useful reference may be made to the decision -5- of the Apex Court in the case of Narsingh Dais Tapadia Vs. Narsingh Dais Tapadia Vs. Narsingh Dais Tapadia Vs. Goverdhan Das Partani and another Goverdhan Das Partani and another Goverdhan Das Partani and another reported in [(2001 (1) [(2001 (1) [(2001 (1) Mh.L.J. 154 = AIR 2000 S.C. 2946] Mh.L.J. 154 = AIR 2000 S.C. 2946] Mh.L.J. 154 = AIR 2000 S.C. 2946] wherein in para no.14 therein, the Apex Court has held that lenient view can be taken when the accused has tendered or paid all the cheque amount to the complainant i.e. to the holder in due course of the cheque. 8. Looking to the conduct of the accused persons in the present case and the fact that two of the accused persons are ladies and accused No.3 is an old lady of 74 years and considering the other facts and circumstances of the case, the learned Magistrate has imposed sentence on the respondents which is stated in paragraph 1 above. 9. Looking to the above facts, in my opinion no case is made out for interference. Appeal is dismissed. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)