B.K. Syed Zakir vs Basha Khan

Anand Byrareddy, J.—Heard the learned counsel for the petitioner.

These three petitions are disposed of together, as they are filed by the very petitioner - accused. The petitioner is said to have issued three different cheques in respect of which three separate complaints have been filed. Insofar as all these cheques are concerned, it was the case of the petitioner that they were offered as security for supply of paddy and issued in advance, in expectation that the supplies would be made. However, it is the case of the petitioner that no such supply was made, but the respondent sought to enforce the cheques. To compound the same, the respondent had carried out alteration of two of the cheques, namely one cheque which was issued for Rs. 5,000/- was made into Rs. 25,000/- and another cheque issued for a sum of Rs. 50,000/- was altered as if it was issued for a sum of Rs. 1,50,000/-. The alteration was also carried out in words and this was the defence that was set up by the petitioner in claiming that there was no consideration and that the cheques were not issued in discharge of any legal liability. On the other hand, the transaction itself had failed and the respondent instead of returning the cheques, had sought to misuse them in the manner as aforesaid. That defence having been set at naught, both the courts have arrived at concurrent findings and have imposed a fine equivalent to the cheque amount of Rs. 3,10,000/- with interest at 18%. This led to a total sum of Rs. 5,52,000/- being paid as fine which was to be treated as compensation to the respondent. Apart from this, the petitioner was also sentenced to imprisonment for a period of one year and in default in payment of fine, again he was to "undergo imprisonment for a period of one year. It is that which is under challenge in the appeals.

The findings are concurrent findings and it is seen from the actual cheque leaves which are produced along with record, that there are indeed certain alterations in the cheque which appear to be doubtful. However, the bankers involved not having found any suspicion and having issued endorsements only to the effect that there were insufficient funds and the courts below also having found that the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the NI Act'', for brevity), in respect of which all those cheques have been established, it would be a futile effort to remand the matter for further enquiry. Therefore, in the fitness of things, it is deemed proper to reduce the punishment to the bare minimum of directing the petitioner to pay a total sum of Rs. 3,10,000/-, which will be the actual amount indicated under the cheques which are alleged to be altered and eschew the additional component of interest at 18%, which the courts below have thought it fit to impose.

Insofar as the punishment of sentence of imprisonment is concerned, it would result in disproportionate punishment being imposed on the accused, in directing payment of fine as well as to undergo imprisonment, even if it could be established that the offence had been committed. Therefore, since the petitioner has already deposited a total sum of Rs. 3,00,000/-, the additional amount to be deposited would be Rs. 10,000/-. The responded is permitted to withdraw the amount in deposit. The petitioner shall deposit the additional sum of Rs. 10,000/- within two weeks from today, which again, the respondent is permitted to withdraw.

With that modification, the petitions are allowed in part.

The learned counsel for the respondent however seeks that since this court is eschewing the interest component on the transaction, it would be necessary to reserve liberty to the respondent to recover the amount by way of interest by recourse to civil proceedings.

If the law so permits, it is open for the respondent to recover the same. Accordingly, the punishment of imprisonment is set-aside. In default of deposit of the further sum of Rs. 10,000/-, the petitioner shall be liable to undergo imprisonment for a period of two weeks.