High Court dismissed criminal revisions challenging convictions and sentences under Section 138 NI Act. Found cheques issued for valid debt. Reduced total imprisonment to time suffered but upheld fine payment requirement.
Imprisonment reduced to 10 months; fine payment extended by four months; default imprisonment retained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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revn.120.121.12.9.group.doc
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.120 OF 2012 WITH CRIMINAL REVISION APPLICATION NO.121 OF 2012 WITH CRIMINAL APPLICATION NO.62 OF 2013 IN
CRIMINAL REVISION APPLICATION NO.121 OF 2012
IBS Bespoke Solution Pvt.Ltd. And others. ..Applicants -Versus- Sanjay N. Divekar and another. ..Respondents
.............
Mr.M.G.Shukla, for the Applicants. Mr.A.R.Patil, APP, for the Respondent/State.
CORAM : S.C.DHARMADHIKARI, J. Date : 25th April,2013.
P.C.:
1 Heard Mr.Shukla, learned counsel appearing for the Applicants. None appears on behalf of the Respondent No.1/Complainant though duly served.
2 Upon perusal of the concurrent orders convicting and sentencing the Applicants for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, I am satisfied that no interference is necessary in revisional jurisdiction. The concurrent findings are not vitiated by any error of law or perversity warranting interference in revisional jurisdiction.
3 The only contention which has been raised before the lower Appellate Court pertains to the cheque/negotiable instrument being not
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given in due discharge of legally enforceable debt or liability. Thus, the presumption under Section 139 of the Negotiable Instruments Act, 1881 was rebutted. After considering all materials produced and particularly the letter dated 27.04.2007, the Courts below concurrently found that the Applicants did nothing to rescind the contract or terminate it. They accepted the delivery on 27.04.2007 despite due date specified as 25.03.2007. For all these reasons, it was clear that the cheques were given in due discharge of legally enforceable debt or liability. The contract was not rescinded or terminated, but was taken through. Therefore, for these reasons and for dishonor of the cheques, brought the matter within the purview of Section 138. The conviction, therefore, cannot be said to be vitiated by any error of law or perversity requiring interference in revisional jurisdiction.
4 However, as far as the sentence is concerned, the Applicant Nos.2 to 3 were sentenced to suffer simple imprisonment for 12 months and pay fine of Rs.24 lacs and in default, to undergo simple imprisonment for six months.
5 The Applicant Nos.2 and 3 have stated that they have undergone the sentence of 10 months each. They would pay the fine amount within four months.
6 Having regard to the fact that they have undergone the sentence for 10 months, the substantive sentence of simple imprisonment for 12 months is reduced to the period already undergone. However, the fine amount has to be paid and the default punishment for that need not be interfered with.
7 I have observed in several cases that the prosecution for dishonouring a cheque has less deterrent effect and the trials in the cases where offences punishable under Sections 138 and 141 of the Negotiable
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Instruments Act, 1881 completely lose their legal efficacy and such conviction and sentences are treated lightly and casually. The convicts approach higher courts to avoid surrendering to custody. Their tendency is to avoid making payments and cause dishonor of cheques and thereafter, to buy time and in support of that, all defences are raised. Ultimately, the higher court is persuaded to interfere with the sentence and quantum of compensation. This is nothing but mockery of the Rule of Law.
8 In these circumstances by extending the time to pay the fine amount by four months, the direction to pay the fine and in default to suffer simple imprisonment is maintained. Barring this modification and in the above terms, the Revision Applications fail and are dismissed. 9 In view of disposal of the Revision Applications, the Criminal Application does not survive and it is also disposed of.
(S.C. Dharmadhikari, J)
3 issues framed by the court
Whether the concurrent finding that cheques were given in discharge of legally enforceable debt warrants revisional interference?
Whether the sentence passed on the applicants requires modification in the revisional jurisdiction?
Whether the fine payment extension affects the default punishment for non-payment?
2 provisions across 1 enactments
IBS Bespoke Solution Pvt.Ltd. And others
Sanjay N. Divekar and another
S.C. Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
