Partly allowed

Krishna Baburao Titare v. Gujrathi Urban Co. Op Society through Its Manager and Anr.

Bombay HC4 Sept 2013REVN/173/2009

Case brief

AI extract

What is this about?

In a criminal revision application against conviction and sentence under Section 138 NI Act, the High Court allowed the revision in part. The Court modified the sentence imposed by the Magistrate to comply with Section 357 CrPC by ordering the fine amount to be utilized towards the compensation to the payee, while maintaining the conviction.

What did the court decide?

The order of conviction is maintained. The previous sentence is set aside and substituted with a fine of Rs.1,60,000/- within two months, with default imprisonment of four months. The fine amount shal

Krishna Baburao Titare Vs Gujrathi Urban Co. Op Society… — Cheque Dishonour | Bombay HC (2013)

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Cri.Rev. 173.09

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD

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CRIMINAL REVISION APPLICATION NO. 173 OF 2009

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Krishna S/o Baburao Titare
Age : 44 years, Occ : Riksha Driver,
R/o Plot No. 36, Ram Nagar,
Jalgaon, Tq. & Dist. Jalgaon.

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..APPLICANT

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-VERSUS-

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1. Gujrathi Urban Co-op. Society, Through it’s Manager, Dnyaneshwar D. Mali Age : 37 years, Occ : Service, R/o Gujrathi Urban Co-op. Society, Jalgaon.

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2. The State of Maharashtra

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..RESPONDENTS

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...

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Advocate for applicant : Mr. V.Y. Patil
APP for Respondent No.2 : Mr. G.R. Ingole

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...

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CORAM : ABHAY M. THIPSAY, J.
Dated: September 04, 2013

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...

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ORAL JUDGMENT:-

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This revision is directed against the
conviction of the applicant of an offence
punishable under Section 138 of the Negotiable
Instruments Act, recorded by the Judicial
Magistrate, First Class, Jalgaon and the
sentence imposed upon the applicant by him. The
applicant had challenged the order of his
conviction and sentence by filing an appeal
before the Court of Sessions, Jalgaon. The

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2 Cri.Rev. 173.09

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learned Additional Sessions Judge, Jalgaon, who
heard the appeal, found nothing wrong in the
order passed by the trial Court and dismissed
the appeal. The learned Magistrate sentenced the
applicant to suffer simple imprisonment for five
months and to pay a fine of Rs.5,000/-, in
default to suffer simple imprisonment for 10
days. The Magistrate also directed the applicant
to pay a sum of Rs. 7,000/- to the respondent
No.1 herein i.e. the original complainant as and
by way of compensation.

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2.I have heard the learned counsel for
the applicant. None appears for the respondent
no.1, when the matter is called out. I have also
heard the learned A.P.P. for Respondent No.2
State of Maharashtra.

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3.The learned counsel for the applicant
submitted that since there is a concurrent
finding of facts, he does not intend to
challenge the same in the present revision
proceedings. He further submitted that there
were talks of settlement between the applicant
and the representative of the respondent no.1,
but they did not materialise. He, however,
submitted that the sentence imposed upon the
applicant was rather harsh, and that, a lenient
view with respect to the sentence be taken.

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4.I find that the respondent no.1 is a

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3 Cri.Rev. 173.09

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Co-operative society and had advanced a loan of
Rs.1,27,000/- to the applicant. In discharge of
the liability towards the repayment of the said
loan, the applicant had issued a cheque in the
sum of Rs.1,50,950/-.

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5.Under these circumstances the propriety
of the sentence imposed by the learned
Magistrate needs to be examined. He has awarded
a substantive sentence upon the applicant, but
has ordered a meagre sum :- namely Rs. 7,000/-,
to be paid to the respondent no.1, as
compensation. The learned Magistrate has also
sentenced the applicant to pay a fine of Rs.
5000/- separately. The scheme of provisions of
Section 357 of the Code of Criminal Procedure
clearly indicates that where fine forms a part
of the sentence, the compensation can be ordered
to be paid only from the amount of fine. Thus,
there is an error to that extent in the order
passed by the Magistrate.

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6.The offence punishable under Section
138 of the Negotiable Instruments Act does not
involve any moral turpitude. It is basically a
breach of an agreement to repay. It is a deemed
offence. There is nothing to indicate that the
applicant had committed similar offences in the
past. The object of the relevant provisions is
to ensure credibility to cheque transactions by
making recovery of the cheque amount by payee of

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4 Cri.Rev. 173.09

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the cheque, easier. The trial Court failed to
understand the aforesaid aspect and also failed
to achieve the desired results.

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7.After hearing the learned counsel for
the applicant and the learned A.P.P., it appears
proper to me to interfere in the matter by
modifying the sentence imposed upon the
applicant by the Magistrate. As aforesaid, that
the order of conviction is erroneous, has not
been contended before me and as a matter of
fact, the correctness thereof has been conceded.

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8.In the result, the revision application
is partly allowed.

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The order of conviction of the
applicant, as recorded by the Magistrate and as
upheld by the Sessions Court, is maintained.

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However, the sentence imposed upon the
applicant is set aside and is substituted by
following sentence :-

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The applicant is convicted of an offence punishable under Section 138 of the Negotiable Instruments Act and is sentenced to pay a fine of Rs.1,60,000/-, in default to suffer simple imprisonment for four months. If the amount of fine is realised, an amount of Rs.1,50,950/- therefrom, shall be paid to the

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Cri.Rev. 173.09

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respondent no.1 society, as compensation.

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The applicant shall pay the amount of fine within a period of two months from today, failing which, the trial Court shall take necessary steps to enforce the sentence.

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9.The Revision Application is disposed
of, in the aforesaid terms.

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Sd/-

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( ABHAY M. THIPSAY, J. )

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...

Krishna Baburao Titare v. Gujrathi Urban Co. Op Society through Its Manager and Anr.

Case brief

What is this about?

What did the court decide?

Krishna Baburao Titare v. Gujrathi Urban Co. Op Society through Its Manager and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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