Dishonour of cheque not an "offence against society", mitigating circumstances can be considered in sentencing: P&H HC

The Punjab and Haryana High Court recently ruled that the offence of dishonour of a cheque is not an offence against society and that an accused is entitled to have mitigating factors considered in sentencing (Rakesh Kumar v. Jasbir Singh and another)..A Single-Bench of Justice Sudhir Mittal emphasised that the offence of cheque bouncing under Section 138 of the Negotiable Instruments Act was quasi-criminal in nature. Moreover, Section 147 of the Act even stated that the offence is compoundable..In the case before the High Court, the revision-petitioner (the accused) was convicted and sentenced to undergo rigorous imprisonment for two years. Additionally, he was directed to pay compensation equal to the amount dishonoured, along with 9% interest per annum, from the date of cheque till the judgment date. .The appeal against the judgment of conviction was dismissed leading to the filing of a revision petition before the High Court..When the revision petition was heard, the counsel for the petitioner confined his prayer to a reduction in the quantum of sentence. Describing the petitioner as a “poor person”, it was argued that the accused was subjected to a protracted trial of almost ten years. Further, he had undergone an actual sentence of a little more than a year..The prosecution opposed the plea, urging the Court to confirm the full sentence imposed on the petitioner..Ruling that the question of sentencing was primarily a matter of discretion in the absence of statutory provisions governing the same, Justice Mittal found that the sentence imposed was supposed to be proportionate to the crime committed. .The sentence was also to be in accordance with the principles of deterrence, retribution or restoration, with mitigating and aggravating circumstances to be factored in, he observed..The amendments to the provisions of the relevant law revealed the legislative intent of expediting the trial and making the sentence deterrent when it comes to cheque bouncing, it was noted..“Provisions inserted for inculcating greater faith in banking transactions needed more teeth so that cases involving dishonour of cheques reduced. It is, thus, apparent that deterrence and restoration are the principles to be kept in mind for sentencing,” Justice Mittal ruled..Pertinently, the Court added,."... the Court cannot lose sight of the fact that the offence under Section 138 of the Act is quasi criminal in nature. Section 147 of the Act makes the offence compoundable notwithstanding anything contained in the Code of Criminal Procedure, 1973. It is not an offence against society and an accused can escape punishment by settling with the complainant.".The Court went on to note that the petitioner had been awarded the maximum sentence by the lower court, keeping in view the socio-economic nature of the offence. Further, the principle of restoration was applied in ordering the payment of compensation with interest. .However, it opined that the maximum sentence of 2 years imposed on the petitioner was arbitrary, given the quasi-criminal nature of the offence and the fact that the cheque amount was only Rs 4 lakhs. ."Mitigating circumstances argued by counsel for the petitioner such as the petitioner being a poor person and having undergone a protracted trial of almost 10 years, also exist", the Court said..Therefore, the revision petitioner’s prayer for a reduction in prison time was accepted and the sentence was reduced to the period already undergone..Read the Order: