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2002 DIGILAW 474 (CAL)

Biswajit Chowdhury v. S. S. Distributors

2002-07-19

Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J. This proceeding arises out of an application under section 401 read with section 482 of the Criminal Procedure Code, 1973 and it is directed against the judgement and order dated 24-8-2001 passed by the Additional Sessions Judge, 13th Court, Alipore, 24-Parganas(S), in Criminal Appeal No. 19/2001 modifying the judgment and order of conviction and sentence passed by the Sub-Divisional Judicial Magistrate, Alipore, 24-Parganas(S) in complaint case No. 112/97 convicting the petitioner for commission of the offence punishable under section 138 of the N.I. Act, 1881 (as amended upto date) and sentencing him to pay a fine of Rs. 5000/-, in default simple imprisonment for 3 months and directing the petitioner to pay a compensation to the tune of Rs. 3,00,000/-. 2. Briefly stated the circumstances under which, the petitioner has come before this court, are as follows:- The petitioner issued two cheques dated 18.5.96 and 11.6.96 totalling Rs. 2,77,551.58 paise drawn on Bank of Baroda in favour of O.P. M/s. S.S. Distributors having its office at 18B/1A, Satya Doctor Road, Khiddirpur, Calcutta-700 023, in discharge of his liability and debt towards the O.P. The cheques were presented on 23.11.96 by the O.P. for payment through its bank, Bank of Baroda, Khiddirpur Branch, but those cheques were returned unpaid with the endorsement "Exceeds arrangement dt. 26.11.96". On receipt of the information from the bank on 27.11.96, the O.P. issued a notice on 3.12.96 to the petitioner by Registered Post with A.D. informing him that the aforesaid cheques had been dishonoured and demanded payment within 15 days from the receipt of the said notice. The notice was received, as per acknowledgment by the petitioner on 6.12.96, but no payment was made till the date of filing of the case. 3. In connection with the trial of the case, the petitioner appeared before the trial court. The defence case in such trial was that there was different transactions on different dates between the petitioner and the O.P. and no such cheques of the alleged amount were issued. The petitioner claimed, that following the usual practice in the business, he kept signed blank cheques and the O.P. used those cheques after inserting the amount appeared in such cheque. The specific case of the petitioner was that he received Rs. 1, 3, 985.93 paise from the O.P. out of which an amount of Rs. 53, 985.93 paise was lying unpaid. 4. The specific case of the petitioner was that he received Rs. 1, 3, 985.93 paise from the O.P. out of which an amount of Rs. 53, 985.93 paise was lying unpaid. 4. Through the instant proceeding, the petitioner wants to challenge the order passed by the learned Additional Sessions Judge, confirming the conviction and sentence but modifying the amount of compensation from Rs. 4,00,000/- to Rs. 3,00,000/- by alleging, inter alia, that the learned court below failed to appreciate the specific defence case in spite of the fact that such version got support from the prosecution witnesses who admitted that the writing on the body of the cheque and the signature were different, that such court failed to appreciate that Rs. 50,000/- was paid by the bank draft to the de facto complainant, but the same was not deducted from the total dues. That the examination under section 313 of the C.P. Code in the instant case was conducted contrary to the law as various incriminating facts which have been relied on in the instant case were not placed before the petitioner during his examination under section 313 of the Code of Criminal Procedure, that the compensation in the instant case was awarded contrary to the provisions of section 357 of the Code of Criminal Procedure. 5. I have heard the arguments of both sides, learned Counsel for the petitioner has mainly contended that the courts below did not consider the specific defence case before coming to the conclusion. His contention was that the impugned cheques indicating the amount of money both in number and in words were not written by the accused. Some post dated cheques with the signature of the petitioner were kept with the complainant with the instruction to present before bank after those were duly filled up and the complainant took the opportunity of that system by putting inflated amount in those cheques and this specific defence has not been considered by the court. His further argument is that the examination of the accused under section 313 Cr. P.C. was not properly done by the trial court and this was not considered by the court of appeal in the impugned order. It is also argued that the compensation awarded in the instant case was so awarded contrary to the provisions of section 357 of the Code of Criminal Procedure. P.C. was not properly done by the trial court and this was not considered by the court of appeal in the impugned order. It is also argued that the compensation awarded in the instant case was so awarded contrary to the provisions of section 357 of the Code of Criminal Procedure. In reply, the learned Counsel for the O.P. has contended that the learned appellate court below confirmed the order of conviction, sentence awarded and also fixed the amount of compensation by modifying the order of the trial court after due consideration of the material facts and circumstances and therefore there is no scope for this court to interfere with the order impugned, in revision. 6. So far the first noted argument is concerned I find that the learned Additional District Judge rejected such argument pointing out that in reply to the notice of demand for the amount, the accused/petitioner admitted that he had issued two cheques in question and there no plea was taken that the body of the cheques were filled in by the complainant. I do not find any infirmity in the reason noted by the learned Judge while he refused to accept such argument. It is settled law that to be brought within the mischief of section 138, a cheque should presumably have been issued, and not merely drawn, for payment in discharge, wholly or partly, of a legally enforceable debt to other liability. Under section 139 of N.I. Act there is a legal presumption that the holder of a cheque which falls within section 138 received it for the discharge of a debt or liability. The initial burden, no doubt, is no the complainant to show that the cheque was issued in discharge of a legally enforceable debt or other liability. Then the burden shifts to the accused to establish that the cheque was not of the nature referred to in section 138 of such Act. It is the specific case of the complainant that the two cheques in question were issued by the accused/petitioner (drawn on Bank of Borada in favour of the complainant) for discharging his liabilities and debts towards the complainant. In his evidence, the complainant as P.W.1 deposed that the two cheques were issued by the accused to pay off the outstanding amount. There was no cross-examination on this point. In his evidence, the complainant as P.W.1 deposed that the two cheques were issued by the accused to pay off the outstanding amount. There was no cross-examination on this point. It was only suggested that the complainant filled up the blank portion of the cheque before presenting the same to the bank for payment and that suggestion was denied by the complainant in his deposition. In that background, I am of the opinion that the initial burden on the complaint was duly discharged and it has already been found that the learned appellate court below rejected the defence plea in this respect after due consideration. 7. On going through the examination of the accused under section 313 Cr. P.C. I find that the learned trial court while examining the accused under that provision, sometimes, clubbed together 2 or 3 questions but the question is whether for that reason alone, the conviction should be set aside? It is well settled that the real purpose of section 313 Cr. P.C. is that it imposes a duty on the court to question, the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby an opportunity is given to the accused to explain any such point. Now, on going through the examination of the accused under section 313 Cr. P.C. specifically the first question which contains actually two or three questions regarding issuance of the cheques, their presentation before the bank for payment and also the return of those cheques without payment and subsequent demand, I find, on going through the reply that the accused took that opportunity for explaining the circumstances which appeared against him in the evidence. The very purpose of section 313 Cr. P.C. is to enable the accused to explain any circumstance appearing in the evidence against him. That purpose has been substantially satisfied by such examination as there was no scope, for the accused being misdirected for clubbing together two or more questions in the instant case. 8. Lastly I am to consider whether the compensation awarded by the court below was contrary to the provisions of section 357 of the Code of Criminal Procedure? The trial court, namely, S.D.J.M., Alipore by his judgement dt. 21.2.2001 pointed out that the court had already come to a finding that the two cheques amounting to Rs. 8. Lastly I am to consider whether the compensation awarded by the court below was contrary to the provisions of section 357 of the Code of Criminal Procedure? The trial court, namely, S.D.J.M., Alipore by his judgement dt. 21.2.2001 pointed out that the court had already come to a finding that the two cheques amounting to Rs. 2,76,661.58 paise issued by the accused were dishonoured and that the accused was responsible for committing the offence punishable under section 138 of the N.I. Act and he was liable to be punished. The court at that time also considered the amount in the cheques which bounced and also the fact that the case was a long pending case and complainant company suffered a lot of financial losses. Thereafter, he recorded the conviction and sentenced the accused to a fine of Rs. 5,000/- and also directed the accused to pay compensation of Rs. 4, 00, 000/- under section 357(3) Cr. P. C. to the complainant company within 3 months from the date of the order. In appeal, the learned Judge did not think it necessary to intervene in the matter of conviction and the sentence imposed. He also found that the amount of compensation awarded was too high and therefore by the order impugned reduced the amount to Rs. 3, 00, 000/-. Now it was the contention of the learned Counsel for the petitioner that the learned trial court had no power to impose compensation as done by it under clause (3) of section 357 of Cr. 3, 00, 000/-. Now it was the contention of the learned Counsel for the petitioner that the learned trial court had no power to impose compensation as done by it under clause (3) of section 357 of Cr. P.C. It reads as follows:- "When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgement, 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." In West Bengal, the aforesaid provision has been amended by West Bengal Act 33 of 1985 and clause (3) of section 357 reads as follows:- "When court imposes a sentence, of which fine does not form a part, the court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Scheduled Tribes, shall, when passing judgement, 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 sentenced. Provided that the court may not order the accused person to pay by way of compensation, any amount if both the accused person and the person against whom offence has been committed belong either to S. Cs. or S.Ts". 9. So, as to the matter stands now, the only grievance relating to the imposition of compensation, by taking recourse to clause (3) of section 357 Cr. P.C. is that when court awarded a sentence of fine, under that particular provision, the court had no power to award any amount by way of compensation. Therefore, the compensation which has been awarded by the trial court and which was confirmed but reduced by the appellate court, has been so awarded against the law. It is true that clause (3) of section 357 Cr. P.C. provides for awarding compensation when the sentence imposed by the court does not include the fine. Therefore, the compensation which has been awarded by the trial court and which was confirmed but reduced by the appellate court, has been so awarded against the law. It is true that clause (3) of section 357 Cr. P.C. provides for awarding compensation when the sentence imposed by the court does not include the fine. If the court imposes a sentence of fine or a sentence of which fine forms a part then under clause(1) of section 357, the court may, when passing judgement, order the whole or any part of the fine recovered to be applied in the payment of any person towards compensation. I have already noted that the trial court being the court of S.D.J.M. imposes a fine of Rs. 5,000/-, but at the same time awarded a compensation of Rs. 4,00,000/- which was reduced to Rs. 3,00,000/- in appeal. Most probably, the learned trial court found that due to clear provision contained in section 29(2) of Cr. P.C. such court could not pass a sentence of fine exceeding Rs. 5,000/- and that amount would be too insignificant to be awarded by way of compensation to the complainant. 10. In the case of Pankajbhai Nagjibhai Patel vs. The State of Gujarat & Anr., reported in J.T. 2001(1) SC 523 : AIR 2001 SC 567 , the Apex Court observed (Para-16) that it was open to a Magistrate to award compensation in a fit case where the Magistrate was of the opinion that the complainant must be compensated with his loss, by taking resort to the course indicated in section 357 of the Cr. P.C. and in doing so, the Hon'ble Court noted its earlier judgment in K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr., J.T. 1999(7) SC 558), wherein the Apex Court observed as follows:- "However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to section 357(3) of the Code. It is well to remember that this court has emphasised the need for making liberal use of that provision [Hari Singh vs. Sukhbir Singh, JT 1988(3) SC 711 : 1988 (4) SCC 551 ]. No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a court of Magistrate of the first class in respect of a cheque which covers an amount exceeding Rs. 5000/-, the court has power to award compensation to be paid to the complainant." After quoting the observation of the Apex Court in the previous case, the Hon'ble Court finally observed in Para-17 as follows:- "In our view this question does not now pose any practical difficulty. Whenever a Magistrate of the First Class feels that the complainant should be compensated he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in section 357 of the Code." 11. Here the real difficulty has arises from the fact that the learned Magistrate did not think any necessity to impose a term of imprisonment. No doubt, under section 138 of the N.I. Act an accused on conviction under that particular provision can be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. So the trial court had the liberty to impose a sentence of fine without imposing a term of imprisonment as provided in section 138 but then the difficulty is that the language of section 357(3) Cr. P.C. is very clear to show that the Magistrate in the event of imposing a sentence of fine only cannot resort to the provisions contained in section 357(3) as under that provision, the compensation can be separately awarded when the court imposes a sentence of which fine does not form a part. In that background, the learned trial court ought to have imposed a term of imprisonment before awarding compensation to the complainant. Or he could have resorted to the provisions contained in section 357(1) but the difficulty in that event would be that the power of imposing fine of the trial court being a Judicial Magistrate, 1st Class is restricted to Rs. 5000/- as per section 29(2) of Cr. P.C., compensation, may be too inadequate. Or he could have resorted to the provisions contained in section 357(1) but the difficulty in that event would be that the power of imposing fine of the trial court being a Judicial Magistrate, 1st Class is restricted to Rs. 5000/- as per section 29(2) of Cr. P.C., compensation, may be too inadequate. So two ways were open to the learned Magistrate either he could have imposed only a sentence of imprisonment before awarding compensation under section 357(3) Cr. P.C. or he could have forwarded the accused to the Chief Judicial Magistrate to whom he is sub-ordinate under section 325 of Cr. P.C. and the Chief Judicial Magistrate could have passed an order imposing fine sufficient to compensate the complainant under section 357(1) Cr. P.C. 12. In this background, the question which is staring on us is whether for this reason alone, the compensation awarded should be set aside or not by this court? On going through the judgement and order of the trial court I find that he has assigned sufficient reason for awarding the compensation. There only a defect of the learned trying Magistrate is in awarding the compensation under section 357(3) Cr. P.C. as it is well settled that in deserving cases a Judicial Magistrate of First Class can also award compensation and on going through the order I am fully satisfied that the present case, compensation should be awarded. But should the compensation awarded to the complainant be quashed only because the trial court did not impose a term of imprisonment as required, to bring the case within the domain of section 357(3) Cr. P.C.? In the case of Pankajbhai Nagjibhai Patel vs. The State of Gujarat & Anr. (supra), the trial court being the court of Judicial Magistrate, First Class sentenced the accused to imprisonment for 6 months and also to a fine of Rs. 83,000/-, contrary to the provisions of section 29(2) of Cr. P.C. In that case, the Hon'ble Court deleted the fine portion from the sentence and directed the appellant/accused to pay compensation of Rs. 83,000/- to the respondent/complainant. But unfortunately in the instant case this court cannot, in the facts and circumstances of the case, alter the sentence of fine to Rs. 3, 00,000/- and direct the accused/petitioner to pay the entire amount of fine of Rs. 3,00,000/- by way of compensation to the complainant, under section 357(1) Cr. 83,000/- to the respondent/complainant. But unfortunately in the instant case this court cannot, in the facts and circumstances of the case, alter the sentence of fine to Rs. 3, 00,000/- and direct the accused/petitioner to pay the entire amount of fine of Rs. 3,00,000/- by way of compensation to the complainant, under section 357(1) Cr. P.C. because of the bar created under section 386(b)(iii) of Cr. P.C. The said provision of Cr. P.C. deals with the power of the appellate court and clause (b) (iii) has made it clear that the appellate court has got the power to alter the nature and extent of the sentence but not so as to enhance the same. In the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr., JT 1999 (7) SC 558, the Apex Court dealt with the same question. In that case, the Judicial Magistrate in one of the districts of Kerala acquitted the accused from a charge under section 138 N.I. Act on the ground that his court had no territorial jurisdiction to try the case. The High Court of Kerala on the appeal against acquittal preferred by the complainant, set aside the order of acquittal and convicted the accused and sentenced him to imprisonment for 6 months besides a fine of Rs. 1,00,000/-. In that background, the Apex Court on consideration of provisions contained in second proviso to section 386 of the Code which reads as follows:- "Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal." "The trial in this case was held before a Judicial Magistrate of First Class who could have imposed a fine exceeding Rs. 5000/- besides imprisonment. The High Court while convicting the accused in the same case could not impose a sentence of fine exceeding the said limit." In course of the same judgement, the Apex Court further held that the Magistrate could alleviate the grievance of the complainant by making resort to section 357(3) of the Code, if it was found that the fine amount, which the Magistrate could have imposed under section 29(2) of Cr. P.C. was too insignificant to pay the compensation out of the fine realised. P.C. was too insignificant to pay the compensation out of the fine realised. The Hon'ble Court specifically noted the need for making liberal use of the provision under section 357(3) which did not impose any limit in connection with awarding the compensation. 13. I have already noted that section 357(3) Cr. P.C. comes into play only when the court imposes a sentence of which fine does not form a part. Unfortunately, in this case, the learned Magistrate did not think it necessary to impose any imprisonment, for the purpose of bringing the case within section 357 clause 3 Cr. P.C. It is also clear that this court is not in a position to convert the amount of compensation awarded against the accused/ petitioner to a fine, with a direction to pay the whole amount of such fine to the complainant as the compensation under section 357(1) of Cr. P.C. due to the bar created under section 386 as noted above. Being faced with such a situation and in view of the clear position that the conviction under section 138 of N.I. Act is not tainted with any illegality, for non-consideration of any material facts and evidence, the conviction of the accused/petitioner for the offence under section 138 of the N.I. Act is confirmed. But for the reasons stated above I set aside the sentence and also the compensation awarded in this case. Let the case be sent back to the trial court to pass orders on the question of sentence and compensation, after affording a reasonable opportunity to both sides to submit before that court only on the point of sentence and compensation. In the result, the revisional application is allowed in part as indicated above. The trial court is directed to dispose of the matter within 4 months from the date of this order. Revisional application allowed in part.