Raju @ Sheikha
Mohamed Sharif Vs State of Maharashtra & ANR
AFTAB ALAM, J.
appellant stands convicted under section 138 of the Negotiable Instruments Act
(hereinafter, the Act). He is sentenced to imprisonment for six months and
payment of compensation of Rs.4,00,000/- with the direction Nature of
imprisonment not specified by any of the courts. that in default of payment he
would undergo imprisonment for a further period of one month.
appellant gave a cheque dated November 5, 2003 forRs.4,00,000/- to the
complainant-respondent in repayment of a loan of the same amount earlier taken
by him. The cheque on presentation before the bank was returned with the
endorsement, "account closed." The respondent gave a notice to the
appellant asking for payment of the cheque amount but the appellant did not
make the payment. Hence, the respondent filed a complaint against the appellant
under section 138 of the Act, giving rise to case bearing CC No.245/SS/2004. In
the complaint case, the Special Metropolitan Magistrate and Judge of the Small
Causes Court found and held that the complainant was able to establish the
appellant's guilt and by judgment and order dated October 6, 2005, convicted
him under section 138of the Act and sentenced him to undergo imprisonment for
six months. The court also directed the appellant to pay compensation of
Rs.8,00,000/- under section 357(3) of the Code of Criminal Procedure and in
default of payment of compensation, to undergo imprisonment for a period of one
month. The court further directed that on realization of the amount of
compensation,Rs.4,00,000/- would be paid to the complainant and the remaining
amount would be credited to the State for the "loss and expenses incurred
by both the parties".
the judgment of the trial court, the appellant preferred appeal (Crl. A. No.698
of 2005). The appeal was dismissed without any modification in conviction or
sentence by judgment and order dated June 29,2007. The appellant, then, moved
the High Court in Criminal Revision Application No.317 of 2007. The High Court
by its judgment and order dated December 9, 2009 sustained the appellant's
conviction. It, however, noted that during the pendency of the criminal
revision, the appellant had deposited Rs.4,00,000/- in court which was
withdrawn by the complainant by the permission of the court. The court further
observed that in the facts of the case there was no specific loss caused to the
State and, therefore, there was no justification for payment of the large sum
of Rs.4,00,000/- as compensation to the State. It, accordingly, reduced the
amount of compensation from Rs.8,00,000/- to Rs.4,00,000/-.
appellant has now brought this matter to this Court. At the SLP stage notice
was issued limited to the question of sentence. From the materials on record it
appears that before the complainant gave the loan to the appellant (for the repayment
of which the dishonoured cheque was issued by the appellant) there were
business transactions between the appellant and the complainant's sister that
had gone sour. As a matter of fact it was the defence of the appellant that
having regard to the past events there was no question that the complainant
would give him any loan and the whole case that the cheque was given in
repayment of the loan was completely false. We are referring to the
circumstance not to reconsider the appellant's conviction which we confirm but
for the limited purpose of the due sentence. The appellant has faced the
rigours of a criminal prosecution for the past six years and is said to have
served out the substantive sentence of imprisonment for 39 days.
the overall facts and circumstances of the case, we are satisfied that the ends
of justice would be satisfied by reducing the substantive sentence of the
appellant to the period already undergone by him. This would, however, be
subject to the condition of payment of Rs.1,00,000/- as additional amount of
compensation to the complainant.
accordingly, direct that the appellant's sentence of imprisonment be reduced to
the period already undergone by him provided he deposits a sum of Rs.1,00,000/-
in the trial court within 8 weeks from today failing which, he would be taken
in custody to serve out the remaining period of sentence given to him by the
High Court. If the amount of Rs.1,00,000/- is deposited as directed the entire
amount would be paid to the complainant.
appeal is dismissed subject to the modification in sentence.