M/S Screen Palace & Ashok Kariya vs Bharat Singh

Both the matters pertain to the Criminal Case No 34716/2016, hence, both are hereby disposed of by the present common judgment.

(2) The appellant has preferred criminal appeal No.236/2008 against the judgment and order dated 23.03.2017 passed by XI Additional Sessions

Judge, Indore, whereby the judgment dated 18.09.2006 rendered by the Judicial Magistrate First Class, Indore in criminal case No.34716/2006

convicting the appellant under Section 138 of Negotiable Instruments Act, 1881 (For short as “N.I.Actâ€) has been set aside and the

respondent/accused was acquitted.

(3) Appellant/complainant has filed Misc. Criminal Case No.6105/2006 challenging the order dated 08.11.2008 passed by XI Additional Sessions

Judge, Indore in criminal case No.34716/2006 by which criminal revision No.662/2006 preffered for imposing the fine sentence on the

respondent/accused, has been dismissed.

(4) Facts of the case in short are that the appellant is the proprietor of the 'M/s Screen Palace' involved in the purchase of printing materials etc. The

respondent was serving as an employee at the appellant's shop since over 11 years, whose duty was to handle the shop and sales as well. The

appellant having faith in him used to leave the shop on his resposbility and also used to assign him important works like sales to other dealers etc. The

another employee of the shop has informed the appellant that the respondent used to take goods from the shop and used to sell it to other dealers

outside, which amounted to average of around Rs. 5000/- to 6000/- per month and account of which was never given to the appellant. The same was

confessed by respondent through to a written document Ex. D-1. The respondent, in order to pay off the total amount of the sales which he earlier

took into for his own use, issued a cheque No.452277002 dated 11.03.2004 of the Hindu Nagrik Sahari Bank Limited of an amount of Rs. 5,00,000/-.

therefore, the respondent did not complain to the police. However, when the cheque was presented for encashment, the same was dishonoured by an

endoresement 'Fund insufficeint'. Thereafter, notice demanding the said amount was sent to the respondent but the respondent did not pay the amount

so the appellant filed criminal complaint against the respondent under Section 138 of N.I. Act.

(5) After appreciating the evidence produced by the parties, the Trial Court convicted the respondent and sentenced him to undergo R.I.for period of 6

months.

(6) Being aggrived by the judgment of conviction, the respondent preferred an appeal before the Additional Session Court, which was allowed by the

impugned judgment dated 23.03.2007 and the respondent was acquitted from the aforesaid offence. The appellant has also filed a revision petition

before the Additinoal Session Court for enhancement of sentence conteding that the trial Court has not awarded any compensation to the appellant

under Section 357 of Cr.P.C., whereas the accused/respondent was under the legal liability to pay dishonour cheque amount. The same revision was

dismissed by the appellate Court vide order dated 08.11.2006 which is challenged by the appellant before this Court.

(7) Lerarned counsel for the appellant submitted that lower appellate Court has committed grave error in law by holding that the respondent issued a

cheque to the appellant under presure, which is contrary to the fact that the respondent has nowhere in his defence has taken this plea that the cheque

was given to him under any threat or presure. The appellate Court has also erred in holding that the burden of proving the libality of the respondent

(for the cheque) was on the appellant. It was the respondent, who had to show that circumstances existed are contrary of the allegation made by the

appellant and to the presumption under section 139 of the N.I.Act. The lower appellate Court has also wrongly come to the conslusion that the

appellant has failed to produce his copy of register to show how much amount of goods were taken away by the respondent and other respective

details. However, it was brought to the notice of the trial Court as well as appellate Court that the respondent used to sell those goods without the

notice of the appellant, and therefore, it is not possible him to produce the exact records on that behalf. Under these circumstances, the appellate

Court committed error in law in acquitting the respondent for the offence under Section 138 of N.I. Act.

(8) Learned counsel for the appellant also pointed out that the XI Additional Sessions judge has dismissed the revision petition filed by the complainant

for enhancement of sentence without giving due consideration to the averements of the application. Learned Additinoal Sessions judge has committed

grave error in law in hiolding that the respondent is incapable in the family, Social and Financial Backgrounds for making the payment shown in the

cheque without making any proper finding regarding his background, which is perverse. Moreover. the respondent has not adduced any evidence to

show his incapability to pay the cheque amount. Lower appellate Court did not consider citation which was presented by the appellant to support his

case in which the Hon'ble Supreme Court held that the Court should exercise its power to award the compensation to the victim under Section 357 of

Cr.P.C.so that as to meet the ends of justice in a better way. Any such measure which would give the victim succor is far better than a sentence by

deterrence. Therefore, he prayed that respondent is directed to pay adequate compensation to the appellant.

(9) In the other hand learned counsel for the respondent supported the findings given by the Sessions Court by contending that no sufficient ground is

made out for interfere in the judgment of acquittal passed by the lower appellate Court.

(10) The appellant moved an application under Section 391 of Cr.P.C. for taking additional evidence on the record which also be considered with the

present appeal.

(11) I have heard learned counsel for the parties at lenght and perused the record.

(12) From the perusal of the record, it appears that on 11.03.2004 the respondent Bharat issued a cheque sum of Rs. 5,00,000/- in favour of the

appellant which was presented by him for encashment in his bank account at Indore Sahkari Bank Indore, which was dishonoured vide communication

dated 24.03.2014 contending “fund insufficientâ€. Notice of demand dated 15.04.2004 was issued to the respondent but neither he replied the

notice nor he made payment of the amount mentioned in the cheque.

(13) To resolve the controversy, it appears necessary first of all to have a look on the provisions of Section 138 and 139 of N.I.Act. Section 138 of

N.I. Act, 1881 reads as under:

“138 Dishonour of cheque for insufficiency, etc., of funds in the account. â€" Where any cheque drawn by a person on an account maintained by

him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt

or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour

the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to

have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may

be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this

section shall apply unlessâ€

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity,

whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving

a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the

cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course

of the cheque, within fifteen days of the receipt of the said notice.

Explanation.â€" For the purposes of this section, “debt or other liabilityâ€​ means a legally enforceable debt or other liability.]â€​

Section 139 of N.I.Act provides that :

“39 Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the

nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liabilityâ€​.

(14) The respondent was an employee whose duty was to handle the shop and sell the articles. The appellant used to leave the shop on his

responsibility and being entrusted with the property by the appellant the respondent dishonestly misappropriated and when this fact came into the

knowledge of the appellant, he interrogated him then the respondent confessed and in order to pay the misappropriate property he issued a cheque of

amount Rs. 5,00,000/- in favour of the respondent which clearly indicates that the cheque was issued by the respondent under the payment of

liabilities. The respondent has not taken any defence that the appellant has obtained the aforesaid cheque creating pressure upon him. Therefore, I am

unable to accept the reasoning given by the appellate court in the paragraph 17 of his judgment. The respondent has taken a plea that he was having a

Insurance policy and sometime he gave a cheque of premium of his insurance policy and handed over to the complainant for depositing the premium

amount and the appellant has misused the cheque which he has given him to pay the premium amount of Insurance policy, however respondent has

failed to establish the aforesaid defence. In these circumstances it will presume that the cheque was issued for the payment of legal debt or liabilities.

(15) From the evidence of the appellant it is evident that the respondent used to sell the goods without notice of the appellant and therefore it would

not possible to him to produce the records to show that how much amount or goods were taken away by the respondent. It is pertinent to note that the

respondent issued a cheque of Rs. 5,00,000/- in favour of the appellant through written document Ex.D-1 in which he has confessed that he is working

in the screening printing shop of the appellant since 1992 and had misappropriated lot of articles from the the shop of the appellant and he had sold to

various persons and out of sell proceed had earned Rs. 5,000/- to 6,000/- per month, which came about more than 5,00,000/-.

(16) From the record it appears the respondent was operating the bank account and he has also taken a Insurance policy. The respondent has not

taken any plea that he is not having sufficient source to pay the cheque amount, therefore, the finding given by the Trial court that respondent is not in

such condition to pay the cheque amount, does not seen appropriate. The cheque has been issued by the respondent under his liability therefore, he is

responsible to pay the cheque amount.

(17) From the aforesaid discussion this court is of the view that the appellate court has committed error in acquitting the respondent for the offence

under Section 138 of N.I.Act. Therefore, the finding of acquittal given by the appellate Court is not sustainable. So far as the sentence is concerned

the Trial court as well as appellate court have ignored the provision of 357 of Cr.P.C. which is empowered the courts to pay the compensation to the

victim who has suffered by the action of the accused. It is pertinent to note that this powers to courts to award the compensation is not ancillary to

other sentence but it is in addition thereto. This power intended to do something to reassure the victim that he or she is not forgotten in the criminal

justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a

constructive approach to crime. It is step forward in our criminal justice system. Therefore, Hon'ble Apex Court has held in so many pronouncement

that all courts are recommended to exercise this power liberally so as to meet ends of justice in better.

(18) Looking to the aforesaid legal position the court below committed error not awarding the compensation amount and rejected the revision

application filed by the appellant for granting of compensation amount.

(19) In view of the aforesaid, present appeal and Mics. Criminal Case are hereby allowed and the judgment of Appellate Court dated 23.03.2017 by

which respondent has been acquitted from the offence under Section 138 N.I.Act is hereby set aside and the conviction imposed by the Trial Court is

restored, however, the sentence of R.I. for 6 months awarded by the Trial Court to the respondent, is quashed and instead of jail sentence the

respondent is sentenced to fine of Rs.5,25,000/- payable to the appellant as compensation under Section 357 of Cr.P.C.

(20) As the appeal has already been allowed, therefore, there is no need to pass any order in the application filed by the appellant under Section 391 of

Cr.P.C, hence, aforesaid application is rejected.

(21) With the aforesaid, Cr. Appeal No 236/2008 and Misc. Case No.6105/2006 are disposed of.

(22) It is made clear that if the respondent will not deposit the said amount, then he will suffer a period of 6 months R.I.