Punjab-Haryana High Court
Jaswinder Singh vs State Of Punjab And Another on 10 March, 2025
Neutral Citation No:=2025:PHHC:033228
CRR 2380 of 2024 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR 2380 of 2024 (O&M)
Date of Decision: 10.03.2025
Jaswinder Singh ...Petitioner
Versus
State of Punjab and another ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. K.B.S. Mann, Advocate
for the petitioner.
Mr. Deepinder Singh Brar, Sr. DAG, Punjab.
Mr. Nayandeep Rana, Advocate
for respondent No. 2.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present revision petition
against the impugned judgment dated 13.02.2024 passed by the Court
of Additional Sessions Judge, Sri Muktsar Sahib and judgment and
order dated 08.09.2016 passed by the Chief Judicial Magistrate, Sri
Muktsar Sahib, whereby, the petitioner has been convicted for the
offence punishable under Section 138 of the Negotiable Instruments
Act 1881 (hereinafter to be referred as ‘the Act’) and sentenced to
undergo rigorous imprisonment for a period of two years and to pay a
fine of Rs. 10,000/-. In default of payment of fine, he would further
undergo imprisonment for two months. However, no compensation
has been awarded to the respondent/complainant in the present case.
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2. The brief facts, as highlighted in the complaint before the
trial Court were that on the application of the petitioner, a CCLF of
Rs.18,00,000/- vide loan account No. 43180400004757 was advanced
to the petitioner by the respondent No.2/complainant bank and the
terms and conditions of the same were conveyed to the petitioner.
According to account books of the respondent No.2, a sum of
Rs. 21,43,752.40/- is due against the petitioner and in order to
discharge his above said part liability, the petitioner had issued a
cheque No. 596223 dated 31.07.2014 amounting to Rs. 18,00,000/-
out of his account No. 04311690000378 drawn at HDFC Bank, KKP
Road, Branch, Sri Muktsar Sahib with an assurance that the same
would be encashed on presentation and petitioner signed the above
said cheque in the present of respondent No. 2. It had been further
stated that respondent No.2 presented the above said cheque to its
clearing house for encashment of cheque amount and clearing house
of HDFC bank returned the original cheque alongwith memo dated
13.08.2014 dishonouring the cheque disclosing the reason as “funds
insufficient” and in this way the cheque issued by the petitioner was
dishonoured. The petitioner had intentionally issued the above said
cheque fully knowing the reasons that there was no balance in his
account and as such, petitioner had committed an offence punishable
under Section 138 of the Act. It had been further stated that the
respondent No.2 had requested to petitioner so many times to pay the
cheque amount and in this regard a legal notice had also been served
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upon the petitioner on dated 26.08.2014, which was received by the
petitioner, but he did not make the payment of the cheque amount to
the respondent No.2.
3. After completion of the trial, the petitioner was held
guilty for the commission of an offence punishable under Section 138
of the Act. However, while awarding the sentence, the petitioner was
ordered to undergo rigorous imprisonment for a period of two years,
but was directed to pay a fine of Rs.10,000/- only and in default of
payment of fine, he would further undergo imprisonment for a period
of two months only and no compensation was awarded to the
respondent. The petitioner/accused filed an appeal before the Court of
District and Sessions Judge, Sri Muktsar Sahib and the appellate
Court/Court of Additional Sessions Judge, Muktsar Sahib, upheld the
judgment of conviction and sentence passed by the trial Court.
Challenging the impugned judgment, the petitioner/accused preferred
present revision petition before this Court.
4. After the issuance of the notice, the respondent No. 2 did
not appear before the Court despite service. Consequently, Mr.
Nayandeep Rana, Advocate, was appointed as Amicus Curiae to assist
the Court on behalf of respondent No. 2. During the course of
hearing of the matter, this Court had noticed that the prosecution in
the present case was launched by the respondent/complainant for the
dishonour of a cheque of Rs. 18,00,000/-, which was issued by the
petitioner more ten years ago on 31st July, 2014. However, while
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awarding the sentence, the trial Court had directed the petitioner to
pay a meager sum of Rs. 10,000/- only as fine and no amount of
compensation was awarded to the respondent No.2/complainant.
Since, this Court felt that the trial Court should have exercised its
discretion to impose fine and to order payment of compensation to the
respondent No.2/complainant, learned counsel for the parties were
heard on the issue of awarding of adequate amount of compensation
in view of the provisions of Section 138 read with Section 142 of the
Act.
5. Having heard learned counsel for the petitioner and
perused the record, the only question that begs determination in this
case is what should be the approach of the trial Court while awarding
punishment to an accused convicted for commission of offence under
Section 138 of the Act; whether the trial Court should, with or without
the punishment of imprisonment, impose fine which is sufficient
enough to meet the liability of the accused towards the complainant as
represented by the bounced cheque ?.
6. With a view to appreciate the issue raised by learned
counsel for the petitioner, it is necessary to first set out Section 138 of
the Act.
“138. Dishonour of cheque for insufficiency, etc., of
funds in the account. –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 or4 of 19
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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 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 unless–
(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 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- For the purposes of this section, “debt or
other liability” means a legally enforceable debt or
other liability”.
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7. As is apparent from a bare reading of Section 138 of the
Act reproduced above, the Criminal Court after convicting the
accused, is empowered to impose punishment of imprisonment for a
term, which may extend to two years, or fine which may extend to
twice the amount of cheque, or both. The trial Court is, thus, given the
discretion to impose the sentence of imprisonment or fine or both.
8. That from a perusal of the provisions of Section 138 of
the Act, it is apparent that the trial Court is empowered to award the
imprisonment for a term, which may extend to two years or fine,
which may extend to twice the amount of cheque or both. Thus, the
trial Court was granted the discretion to impose the sentence of
imprisonment or fine or both. Still further, while exercising this
discretion, the trial Court must put in mind the object of the
enactment, i.e., Negotiable Instruments Act, particularly the object of
engrafting the provisions of Section 138 of the Act on the statute
book. The prime object of enacting Chapter XVII, which was inserted
in the Act by way of Act No. 66 of 1988 was to control and
discourage the menace of cheque bouncing in the course of
commercial transactions and to encourage the culture of use of
cheques and enhancing the credibility of the instrument. The
observations made by the Hon’ble Supreme Court in the matter of
Damoder S. Prabhu vs Sayed Babalal H. (2010) 5 SCC 663 are
reproduced as under:
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“3. However, there are some larger issues which can be
appropriately addressed in the context of the present
case. It may be recalled that Chapter XVII comprising
Sections 138 to 142 was inserted into the Act by the
Banking, Public Financial Institutions and Negotiable
Instruments Laws (Amendment) Act, 1988 (66 of 1988).
The object of bringing Section 138 into the statute was to
inculcate faith in the efficacy of banking operations and
credibility in transacting business on negotiable
instruments. It was to enhance the acceptability of
cheques in settlement of liabilities by making the drawer
liable for penalties in case of bouncing of cheques due to
insufficient arrangements made by the drawer, with
adequate safeguards to prevent harassment of honest
drawers. If the cheque is dishonoured for insufficiency of
funds in the drawer’s account or if it exceeds the amount
arranged to be paid from that account, the drawer is to
be punished with imprisonment for a term which may
extend to two years, or with fine which may extend to
twice the amount of the cheque, or with both”
“4 It may be noted that when the offence was inserted in
the statute in 1988, it carried the provision for
imprisonment up to one year, which was revised to two
years following the amendment to the Act in 2002. It is
quite evident that the legislative intent was to provide a
strong criminal remedy in order to deter the worryingly
high incidence of dishonour of cheques. While the
possibility of imprisonment up to two years provides a
remedy of a punitive nature, the provision for imposing a
fine which may extend to twice the amount of the cheque
serves a compensatory purpose. What must be
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best described as a regulatory offence that has been
created to serve the public interest in ensuring the
reliability of these instruments. The impact of this
offence is usually confined to the private parties involved
in commercial transactions”.
9. Later in paragraphs (17) and 18 of the said judgment, the
Hon’ble Supreme Court, referring to recently published commentary
on the topic of Section 138 of N.I. Act, made very apt observations. It
was noticed by the Hon’ble Supreme that unlike other forms of crime,
the punishment for commission of offence under Section 138 of the
Act is not a means of seeking retribution, but is more a means to
ensure payment of money and, therefore, in respect of offence of
dishonor of cheques, it is the compensatory aspect of the remedy
which should be given priority over the punitive aspect. For ready
reference, the observations of the Hon’ble Supreme Court in
paragraphs (17) and (18) are reproduced:
“17. In a recently published commentary, the following
observations have been made with regard to the offence
punishable under Section 138 of the Act. Unlike that for
other forms of crime, the punishment here (in so far as
the complainant is concerned) is not a means of seeking
retribution, but is more a means to ensure payment of
money. The complainant’s interest lies primarily in
recovering the money rather than seeing the drawer of
the cheque in jail. The threat of jail is only a mode to
ensure recovery. As against the accused who is willing to
undergo a jail term, there is little available as remedy for
the holder of the cheque. If we were to examine the8 of 19
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number of complaints filed which were `compromised’ or
`settled’ before the final judgment on one side and the
cases which proceeded to judgment and conviction on
the other, we will find that the bulk was settled and only
a miniscule number continued.”
18 It is quite obvious that with respect to the offence of
dishonour of cheques, it is the compensatory aspect of
the remedy which should be given priority over the
punitive aspect. There is also some support for the
apprehensions raised by the learned Attorney General
that a majority of cheque bounce cases are indeed being
compromised or settled by way of compounding, albeit
during the later stages of litigation thereby contributing
to undue delay in justice- delivery. The problem herein is
with the tendency of litigants to belatedly choose
compounding as a means to resolve their dispute.
Furthermore, the written submissions filed on behalf of
the learned Attorney General have stressed on the fact
that unlike Section 320 of the CrPC, Section 147 of the
Negotiable Instruments Act provides no explicit guidance
as to what stage compounding can or cannot be done
and whether compounding can be done at the instance of
the complainant or with the leave of the court”
10. Similarly in the matter of Somnath Sarkar vs Utpal
Basu Mallick and another, (2013) 16 SCC 465, the Hon’ble Supreme
Court while considering the issue in paragraph (15) has summed up
its observations in the following manner:
15…….. Suffice it to say that the High Court was
competent on a plain reading of Section 138 to impose a
sentence of fine only upon the appellant.. Inasmuch as9 of 19
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the High Court did so, it committed no jurisdictional
error…..”
11. The Hon’ble Jammu and Kashmir High Court in the case
of Abdul Hamid Mir Vs. Tariq Ahmad Khan (561-A Cr.P.C. No.
124/2015, decided on 20.02.2018) has also made the similar
observations.
12. From a reading of provisions of Section 138 of the Act in
the context of laudable object sought to be achieved by Chapter XVII
of the Act, it is abundantly clear that the Criminal Court while
convicting an accused for commission of offence under Section 138
of the Act, cannot ignore the compensatory aspect of remedy and the
compensatory aspect can only be given due regard if the sentence
imposed is at least commensurate to the amount of cheque, if not
more, so that this fine, once imposed, can be appropriated towards
payment of compensation to the complainant by having resort to
Section 357 of Cr.P.C. Before I proceed, it would be appropriate to set
out the provisions of Section 357 as well.
“357. Order to pay compensation-(1) When a Court
imposes a sentence of fine or a sentence (including a
sentence of death) of which fine forms a part, the Court
may, when passing judgment, order the whole or any
part of the fine recovered to be applied:-
(a) in defraying the expenses properly incurred in the
prosecution;
(b) in the payment to any person of compensation for any
loss or injury caused by the offence, when compensation10 of 19
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is, in the opinion of the Court, recoverable by such
person in a Civil Court;
(c) when any person is convicted of any offence for
having caused the death of another person or of having
abetted the commission of such an offence, in paying
compensation to the persons who are, under the Fatal
Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss resulting
to them from such death;
(d) when any person is convicted of any offence which
includes theft, criminal misappropriation, criminal
breach of trust, or cheating, or of having dishonestly
received or retained, or of having voluntarily assisted in
disposing of, stolen property knowing or having reason
to believe the same to be stolen, in compensating any
bona fide purchaser of such property for the loss of the
same if such property is restored to the possession of the
person entitled thereto.
(2) If the fine is imposed in a case which is subject to
appeal, no such payment shall be made before the period
allowed for presenting the appeal has elapsed, or, if an
appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does
not form a part, the Court may, when passing judgment,
order the accused person to pay, by way of
compensation, such amount as may be specified in the
order to the person who has suffered any loss or injury
by reason of the act for which the accused person has
been so sentenced.
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(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of
Session when exercising its powers of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or recovered
as compensation under this section”.
13. Even, the Hon’ble Supreme Court of India has held in the
matter of Suganthi Suresh Kumar Vs. Jagdeeshan 2002(2) SCC 420
that the object of Section 138 of the Act is not only punitive, but
compensatory as well. The Hon’ble Supreme Court clearly held that
the compensatory aspect must receive priority over the punitive
aspect of Section 138 of the Act and the held as follows:-
“The total amount covered by the cheques involved in the
present two cases was Rs. 4,50,000. There is no case for
the respondent that the said amount had been paid either
during the pendency of the cases before the trial court or
revision before the High Court or this Court. If the
amounts had been paid to the complainant there perhaps
would have been justification for imposing a flee-bite
sentence as had been chosen by the trial court. But in a
case where the amount covered by the cheque remained
unpaid it should be the look out of the trial Magistrates
that the sentence for the offence under Section 138
should be of such a nature as to give proper effect to the
object of the legislation. No drawer of the cheque can be
allowed to take dishonour of the cheque issued by him
light heartedly. The very object of enactment of
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defeated if the sentence is of the nature passed by the
trial Magistrate. It is a different matter if the accused
paid the amount at least during the pendency of the
case”
14. In a later case of R. Vijayan vs Baby & Anr, (2012) 1
SCC 260, their Lordships of Hon’ble Supreme Court culled out the
following principle from the provisions of Chapter XVII of the Act
which states as under:
“The provision for levy of fine which is linked to the
cheque amount and may extend to twice the amount of
the cheque (section 138) thereby rendering section
357(3) virtually infructuous in so far as cheque
dishonour cases are concerned”.
The Hon’ble Supreme Court in the later part of the said
judgment while alluding to the intention of the Legislature for
enacting Section 138 held thus:
“17. The apparent intention is to ensure that not only the
offender is punished, but also ensure that the
complainant invariably receives the amount of the
cheque by way of compensation under section 357(1)(b)
of the Code. Though a complaint under section 138 of
the Act is in regard to criminal liability for the offence of
dishonouring the cheque and not for the recovery of the
cheque amount, (which strictly speaking, has to be
enforced by a civil suit), in practice once the criminal
complaint is lodged under section 138 of the Act, a civil
suit is seldom filed to recover the amount of the cheque.
This is because of the provision enabling the court to
levy a fine linked to the cheque amount and the usual13 of 19
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direction in such cases is for payment as compensation,
the cheque amount, as loss incurred by the complainant
on account of dishonour of cheque, under section 357 (1)
(b) of the Code and the provision for compounding the
offences under section 138 of the Act. Most of the cases
(except those where liability is denied) get compounded
at one stage or the other by payment of the cheque
amount with or without interest. Even where the offence
is not compounded, the courts tend to direct payment of
compensation equal to the cheque amount (or even
something more towards interest) by levying a fine
commensurate with the cheque amount. A stage has
reached when most of the complainants, in particular the
financing institutions (particularly private financiers)
view the proceedings under section 138 of the Act, as a
proceeding for the recovery of the cheque amount, the
punishment of the drawer of the cheque for the offence of
dishonour, becoming secondary”.
“18. Having reached that stage, if some Magistrates go
by the traditional view that the criminal proceedings are
for imposing punishment on the accused, either
imprisonment or fine or both, and there is no need to
compensate the complainant, particularly if the
complainant is not a `victim’ in the real sense, but is a
well-to- do financier or financing institution, difficulties
and complications arise. In those cases where the
discretion to direct payment of compensation is not
exercised, it causes considerable difficulty to the
complainant, as invariably, by the time the criminal case
is decided, the limitation for filing civil cases would have
expired. As the provisions of Chapter XVII of the Act
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by way of compensation, the courts should, unless there
are special circumstances, in all cases of conviction,
uniformly exercise the power to levy fine upto twice the
cheque amount (keeping in view the cheque amount and
the simple interest thereon at 9% per annum as the
reasonable quantum of loss) and direct payment of such
amount as compensation. Direction to pay compensation
by way of restitution in regard to the loss on account of
dishonour of the cheque should be practical and
realistic, which would mean not only the payment of the
cheque amount but interest thereon at a reasonable rate.
Uniformity and consistency in deciding similar cases by
different courts, not only increase the credibility of
cheque as a negotiable instrument, but also the
credibility of courts of justice”.
“19. We are conscious of the fact that proceedings under
section 138 of the Act cannot be treated as civil suits for
recovery of the cheque amount with interest. We are also
conscious of the fact that compensation awarded under
section 357(1)(b) is not intended to be an elaborate
exercise taking note of interest etc. Our observations are
necessitated due to the need to have uniformity and
consistency in decision making. In same type of cheque
dishonour cases, after convicting the accused, if some
courts grant compensation and if some other courts do
not grant compensation, the inconsistency, though
perfectly acceptable in the eye of law, will give rise to
certain amount of uncertainty in the minds of litigants
about the functioning of courts. Citizens will not be able
to arrange or regulate their affairs in a proper manner
as they will not know whether they should
simultaneously file a civil suit or not. The problem is
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aggravated having regard to the fact that in spite of
section 143(3) of the Act requiring the complaints in
regard to cheque dishonour cases under section 138 of
the Act to be concluded within six months from the date
of the filing of the complaint, such cases seldom reach
finality before three or four years let alone six months.
These cases give rise to complications where civil suits
have not been filed within three years on account of the
pendency of the criminal cases. While it is not the duty of
criminal courts to ensure that successful complainants
get the cheque amount also, it is their duty to have
uniformity and consistency, with other courts dealing
with similar cases.”
15. Still further, the Hon’ble Supreme Court in the matter of
Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 expressed its
anguish that some Magistrates went by the traditional view, that the
criminal proceedings were for imposing punishment and did not
exercise discretion to direct payment of compensation, causing
considerable difficulty to the complainant, as invariably the limitation
for filing civil cases would expire by the time, the criminal case was
decided. Even, this Court has no hesitation to hold that while
imposing sentence under Section 138 of the Act, the Court should
exercise its discretion in imposing fine by having regard to Section
357(3) of Cr.P.C. Rather, the Criminal Court should bear in the mind
the laudable object of engrafting Chapter XVII containing Section
138 to 142 of the Act and give priority to compensatory aspect of
remedy.
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16. Indisputably, the Legislature has given discretion to the
Magistrate to impose a sentence of fine which may extend to double
the amount of cheque and, therefore, the sentence of fine whenever
imposed by the Criminal Court upon conviction of accused under
Section 138 of the Act must be sufficient enough to adequately
compensate the complainant. The amount of cheque and the date from
which the amount under the cheque has become payable along with
payment of reasonable interest may serve as good guide in this regard.
To be consistent and uniform, it is always advisable to impose a fine
equivalent to the amount of cheque plus at least 6% interest per
annum from the date of cheque till the date of judgment of conviction.
However, before inflicting such fine, the trial Magistrate must eschew
the amount of interim compensation, if any, paid under Section 143A
of the Act or such other sum which the accused might have paid
during the trial or otherwise towards discharge of liability. It may or
may not accompany the sentence of simple imprisonment. It is purely
in the discretion of the trial Magistrate but having regarding to the
object of legislation, it shall be appropriate if the sentence of
imprisonment imposed is kept at the minimum unless, of course, the
conduct of accused demands otherwise.
17. In the present case also, it is apparent that the trial Court
has miserably failed to take into account the peculiar facts of the
present case and has imposed a fine of Rs.10,000/- only under Section
138 of the Act and in default of payment of fine, the
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petitioner/accused had been directed to further undergo imprisonment
for a period of two months and no amount of compensation was
awarded. Thus, the respondent No.2, who was the complainant before
the trial Court had even been deprived of an amount of
Rs.18,00,000/-, which had become payable to him on 31.07.2014, i.e.,
more than 10 years ago.
18. Consequently, the present revision petition is allowed the
impugned judgment dated 13.02.2024 passed by the appellate Court,
i.e., the Court of Sh. Girish, Additional Sessions Judge, Sri Muktsar
Sahib and the order on quantum of sentence dated 08.09.2016 passed
by the Court of Sh. Vishesh, Chief Judicial Magistrate, Sri Muktsar
Sahib, are set-aside and the matter is remanded back to the trial Court
for considering the imposition of sentence on the present petitioner,
de-novo, in the light of the legal preposition discussed and the
observations made hereinabove. Needless to observe that the trial
Court shall hear the parties afresh, before imposing the sentence on
the petitioner.
19. Since, the petitioner is in custody, he shall be released on
bail on his furnishing bail bonds/surety bonds to the satisfaction of the
learned trial Court/Duty Magistrate/CJM concerned till the passing of
order on quantum of sentence by the trial Court and, thereafter, the
trial Court shall proceed in accordance with law.
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20. Before parting with the judgment, this Court places on
record its deep appreciation for Mr. Nayandeep Rana, learned Amicus
Curiae, who had rendered able assistance to the Court.
21. All pending applications, if any, are disposed off,
accordingly.
10.03.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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