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2004 DIGILAW 367 (KAR)

N. KRISHNA SHETTY v. N. MRUTHYUNJAYA RAO

2004-06-16

K.RAMANNA

body2004
K. RAMANNA, J. ( 1 ) THIS revision is filed by the complainant against the order of conviction and sentence passed in C. C. No. 1105/95 on the file of the Addl. JMFC. , Mudigere. for inadequacy of sentence. ( 2 ) HEARD the learned counsel for the petitioner and the respondent. ( 3 ) DURING the course of the argument the learned counsel for the petitioner sub- mitted that the respondent herein has issued a cheque for Rs. 75,000/- dated 11-10-1994, which was issued for re-payment of the debt, which came to be dishonoured. Therefore, he filed a private complaint. After recording the evidence the trial Court had come to the conclusion that the respondent -accused was guilty of the offence punishable under Section 138 of the Negotiable instruments Act, though convicted but sentenced him to pay fine only. It is contended that under the law the petitioner is entitled to receive the compensation and the Court is empowered to impose fine double the cheque amount therefore, in the instant case, the trial Court has not properly appreciated the main object of enactment of section 138 of the Negotiable Instruments act (for short "n. I. Act" ). Therefore, the order under revision is liable to be modified by enhancing the fine amount. ( 4 ) IN support of this contention the learned counsel for the petitioner submitted that filing of a suit for recovery of amount covered under the cheque is different aspect and there is no bar for the complainant to file civil suit for the cheque amount before the civil Court. Further it is contended that the trial Court is not justified in imposing minimum sentence of Rs. 5,000/- on the ground that the suit has ended in compromise for a total sum of Rs. 85. 000/- which is totally incorrect and illegal and which calls for interference. ( 5 ) ON the other hand the learned counsel for the respondent submitted that since the revision petitioner had already filed a suit and the said suit was ended in compromise before the Lok Adalath for Rs. 84. 000/- and the respondent has already paid the decretal amount and. therefore, the trial court was right in recording its finding in imposing fine of Rs. 5,000/- which does not call for interference. 84. 000/- and the respondent has already paid the decretal amount and. therefore, the trial court was right in recording its finding in imposing fine of Rs. 5,000/- which does not call for interference. In support of the contention the learned counsel for the respondent relied on a decision reported in the case of Anil Kumar Haritwal v. Alka Gupta (2004) 4 SCC 366 : ( AIR 2004 SC 3978 : 2004 Cri lj 3853), wherein the Hon'ble Supreme court held that:"where the dispute settled between the parties, held, conviction and sentence of the defaulter set aside, in view of the fact that s. 147 of the Negotiable Instruments Act allows compounding of the offence. "in the instant case the respondent has not entered into any compromise with the revision petitioner under Section 147 of the N. I. Act. But he entered into a compromise with the revision petitioner in O. S. 13/98 and paid a sum of Rs. 30. 000/- on the date of compromise decree before the Lok Adalath and he has paid the balance of Rs. 54. 000/- subsequently in civil litigation. Hence the ratio laid down in the aforesaid decision cannot be made applicable to the case on hand. ( 6 ) I have carefully gone through the judgment under challenge and also the arguments advanced by both parties. It is an undisputed fact that the revision petitioner has issued a cheque for Rs. 75,000/ -. Since he failed to repay the same, therefore, the petitioner presented the cheque for encashment which came to be dishonoured, therefore, he filed a private complaint before the jmfc, Mudigere. After considering the entire evidence placed on record by the petitioner the trial Court had come to a conclusion that the respondent has committed an offence punishable under Section 138 of the n. I. Act. But while imposing sentence the trial court has forgotten to hold that the initiation of criminal proceeding for dishonour of Cheque is a separate proceeding and filing of the suit for recovery of the cheque amount is a separate one. In the instant case, the revision petitioner, who is a retired employee, has been made to knock the doors of the Courts, both criminal as well as civil. Of course, the powers of the Magistrate to impose fine is restricted to Rs. 5. In the instant case, the revision petitioner, who is a retired employee, has been made to knock the doors of the Courts, both criminal as well as civil. Of course, the powers of the Magistrate to impose fine is restricted to Rs. 5. 000/ but the Magistrate is not barred from imposing the fine over and above the cheque amount to pay to the complainant by way of compensation under Section 357, Cr. P. C. in this behalf a reference may be made to the decision reported in the case of Pankajbhai naggibhai Patel v. State of Gujarat (2001) 2 scc 595 : 2001 Cri LJ 950 : ( AIR 2001 SC 567 ), wherein the Hon'ble Supreme Court has observed at para 17 that (at Page 571) :"even that apart, a Magistrate who thinks it fit that the complainant must be compensated with his loss he can resort to the course indicated in Section 357 of the Code. This aspect has been dealt with in bhaskaran case as follows ( (1999) SCC p. 510) : 31. 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 v. Sukhbir Singh, 1988 SCC (Cri) 984 ). 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 a Magistrate of the First class in respect of a cheque which covers an amount exceeding Rs. 5. 000/- the Court has power to award compensation to be paid to the complainant'. " ( 7 ) IN another judgment, relied on by the learned counsel for the petitioner, reported in the case of B. Harikrishna v. Macro Links pvt. Ltd. , ILR 2000 Kant 2855, the learned single Judge of this Court held that:". . . . . . . . . " ( 7 ) IN another judgment, relied on by the learned counsel for the petitioner, reported in the case of B. Harikrishna v. Macro Links pvt. Ltd. , ILR 2000 Kant 2855, the learned single Judge of this Court held that:". . . . . . . . . I am of the view that the sentence of fine, if imposed, ought to be the minimum equivalent to the amount of the cheque and proportionate costs incurred by the payee or holder in due course with outer limit of twice the cheque amount. " ( 8 ) CONSIDERING the ratio laid down by the Hon'ble Supreme Court and this Court that the Magistrate is empowered to impose fine either the cheque amount or the double the cheque amount. Therefore, the order under revision passed by the trial Court in imposing fine of Rs. 5. 000/- is illegal and incorrect and the same is to be modified. ( 9 ) ACCORDINGLY, the revision petition is allowed and the order of sentence passed by the trial Court in imposing fine of rs. 5. 000/- is modified and the respondent -accused is sentenced to pay fine of rs. 80,000/-, in default of payment of fine he shall undergo simple imprisonment for a period of 3 years. Out of the fine amount recovered, a sum of Rs. 75,000/- shall be paid to the revision petitioner-complainant and Rs. 5,000/- shall be credited to the State exchequer. Revision allowed. --- *** --- .