KAUSHALYA DEVI MASSAND v.

ROOPKISHORE KHORE (Criminal Appeal No.723 of 2011)

MARCH 15, 2011 [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

[2011] 3 SCR 879

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Leave granted.

2.  On a complaint  filed by the Appellant  herein,  Smt.  Kaushalya Devi  

Massand, the Respondent herein, Roopkishore, was convicted by the Judicial  

Magistrate First  Class, Indore (M.P.),  under Section 138 of the Negotiable  

Instruments Act, 1881, in Criminal Case No.445 of 2000. Having regard to the  

fact that the Respondent had deposited a sum of Rs.3,50,000/-, as against  

the cheque amounting to Rs.2 lakhs, the learned Magistrate was of the view  

that sentence of fine only would suffice without awarding any jail sentence.  

The learned Magistrate, accordingly, sentenced the Respondent to pay a fine  

of Rs.4 lakhs which was to be paid to the Appellant herein as compensation.  

However, the learned Magistrate also indicated that a sum of Rs.3,50,000/-  

had already been deposited and that the balance amounting to Rs.50,000/-  

was to be deposited by the Respondent and if deposited, the same was to be  

paid to the Appellant. On failure to deposit the said amount of Rs.50,000/-,  

the Respondent would have to undergo two months’ Rigorous Imprisonment.  

3. The order of the learned Magistrate was challenged by the Respondent  

before the learned Third Upper Sessions Judge, Indore (M.P.),  by way of  

Criminal  Revision  No.593  of  2006.  The  learned  Sessions  Judge  while  

confirming the judgment of conviction passed by the Magistrate, remanded  

the matter to the learned Magistrate for a fresh hearing on the question of  

quantum of sentence and to pass an order accordingly.

4.  The  said  orders  of  the  learned  Sessions  Judge  and  the  learned  

Magistrate  dated  27th  December,  2007,  and  23rd  February,  2007,  

respectively are the subject matter  of  the present  appeal.  Incidentally,  the  

appeal has been filed by the complainant,  Smt. Kaushalya Devi  Massand,  

who is being represented by her son, Shri Harish Massand, on the strength of  

a Power of Attorney executed by the Appellant in his favour.  

5.  Shri  Massand  submitted  that  the  offence  was  in  respect  of  three  

cheques dated 1st May, 1997, 15th May, 1997 and 30th May, 1997, for Rs.1  

lakh  each.  The  said  cheques  were  issued  in  lieu  of  the  payment  of  

consideration against the sale of property. On presentation of the cheques to  

the Bank, the same were dishonoured on the ground of insufficient funds.  

Subsequently, in lieu of the three cheques which had been dishonoured, four  

cheques drawn on Central Bank of India, Sanyogitaganj Branch, Indore, were  

issued by the Respondent to the Appellant, namely, (i) Cheque No.0121035  

dated 15th June, 1999 for Rs.50,000/-; (ii) Cheque No.0121036 dated 15th  

July, 1999 for Rs.1 lakh; (iii) Cheque No.0121037 dated 15th August, 1999  

for Rs.50,000/-; and (iv) Cheque No.0121038 dated 15th September, 1999 for  

Rs.1 lakh. The said cheques presented to the Bank were again dishonoured  

due to insufficient funds resulting in the filing of the complaint, as indicated  

hereinabove.  

6.  Shri  Massand  submitted  that  since  1997,  the  Appellant,  an  old  

widowed  lady,  was  subjected  to  unnecessary  harassment  for  the  last  14  

years and the Respondent had not even been punished with a jail sentence  

for a day, despite the severe inconvenience and trouble which the Appellant  

had to suffer on account of the dishonesty of the Respondent and the fraud  

perpetrated by him. Shri Massand pointed out that while not sentencing the  

Respondent to a jail sentence despite the enormity of the offence committed  

by the Respondent,  ironically the Magistrate sentenced the Respondent to  

two months’  Rigorous  Imprisonment  in  default  of  payment  of  Rs.50,000/-  

towards  the  fine/compensation  of  Rs.4  lakhs.  Shri  Massand  also  took  us

through the order-sheet of the case before the learned Magistrate to show the  

manner in which the proceedings had been prolonged by the Respondent.  

7. Shri Massand submitted that in order to maintain the faith of the people  

in the judicial system, it was only proper that a jail sentence be awarded to  

the Respondent to serve as a deterrent to others involved in similar activities.  

8.  Mr.  Shakil  Ahmed  Syed,  learned  Advocate,  who  appeared  for  the  

Respondent, submitted that after an interval of 14 years it would be unjust to  

sentence the Respondent to a jail term, especially when the initial liability of  

Rs.2 lakhs had been increased to Rs.4 lakhs by the Magistrate and to Rs.6  

lakhs by the High Court.  Learned Counsel  submitted that  the Respondent  

was  ready to  pay a  further  sum of  Rs.2  lakhs towards the compensation  

amount.  In addition,  learned counsel  submitted that  a jail  sentence for  an  

offence under Section 138 of the Negotiable Instruments Act, 1881, was not  

mandatory  and  it  was  within  the  discretion  of  the  Magistrate  to  award  a  

sentence of fine only, as has been done in the instant case.  

9. Having considered the submissions made on behalf of the parties, we  

are  of  the  view  that  the  gravity  of  a  complaint  under  the  Negotiable  

Instruments Act cannot be equated with an offence under the provisions of  

the Indian Penal Code or other criminal offences. An offence under Section  

138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil  

wrong which has been given criminal overtones. The learned Magistrate, in  

his wisdom was of the view that imposition of a fine payable as compensation  

to the Appellant was sufficient to meet the ends of justice in the instant case.  

Except  having  regard  to  the  submission  made  that  the  Appellant/  

complainant, is a widowed lady of advanced age, there is no other special  

circumstance  which  calls  for  interference  with  the  order  of  the  learned  

Magistrate, as confirmed by the High Court, with an increased fine. After an  

interval of 14 years, we are not inclined to interfere with the order of the High  

Court impugned in the appeal, except to the extent of increasing the amount

of compensation payable by a further sum of Rs.2 lakhs. The said amount of  

Rs.2 lakhs in addition to the sum of Rs.6 lakhs already directed to be paid by  

the Respondent to the Appellant, shall be deposited in the Trial Court within  

two weeks from date and upon such deposit being made, the Appellant will  

be at liberty to withdraw the same by way of compensation, together with the  

amounts  already  deposited,  if  not  already  withdrawn.  In  default  of  such  

deposit, the Appellant shall undergo one month’s simple imprisonment.  

10. The appeal is partly allowed to the aforesaid extent.