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2008 DIGILAW 158 (MP)

Marry Jani Kumrawat v. Krishnakant

2008-01-29

S.K.KULSHRESTHA

body2008
JUDGMENT S.K. Kulshrestha, J. 1. This revision has been filed by the applicant against the order dated 20.1.2007 in Criminal Appeal No. 474/2006 passed by the learned Second Additional Sessions Judge, Mhow by which the conviction of the applicant under Section 138 of the Negotiable Instruments Act, 1881 and award of compensation of Rs. 1,20,000/- to the complainant has been upheld and she has been directed to undergo also substantive sentence till rising of the Court. 2. The applicant was prosecuted in the Court of the Judicial Magistrate Class-I, Mhow for commission of an offence under Section 138 of the Negotiable Instruments Act and by order dated 22.8.2006 passed in Criminal Case No. 1540/2004, while convicting the applicant thereunder, she was directed to pay compensation to the respondent in the sum of Rs. 1,20,000/-, otherwise to undergo R.I. for three months. 3. An appeal was filed by her against the said judgment under the provisions of Section 374 of the Cr.P.C. and simultaneously therewith a revision was filed by the respondent before the Sessions Court for awarding substantive sentence to the applicant and for enhancement of the compensation. The appeal and the revision were decided by the impugned common judgment and in addition to the direction for compensation and dismissal of her appeal, the revision filed by the respondent was partly allowed and the applicant was awarded sentence till the rising of the Court. The applicant, therefore, prays that the order passed by the Courts below be set aside and she may be acquitted of the charges. 4. It was not disputed before the Trial Court that the applicant had issued the cheque in the sum of Rs. 1,20,000/- but when the same was presented to the Bank, it was dishonoured. In this respect a notice had been sent on 17.8.2004 and despite receipt of the notice, she had not paid the amount of the cheque that was issued by her. It was in this context that the respondent filed a complaint on 10.9:2004 stating that despite notice she had not cleared the amount of cheque and had thus committed offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). 5. It was in this context that the respondent filed a complaint on 10.9:2004 stating that despite notice she had not cleared the amount of cheque and had thus committed offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). 5. Learned Counsel for the respondent submits that once it was patent that the applicant accused had not paid the amount of the cheque after its dishonour and after the notice was served on her in accordance with the provisions of Section 138 of the Act, the applicant had no case merely because the Court, under the provisions of Section 357(3) of the Cr.P.C, has awarded compensation to the tune of the a amount of the cheque. 6. The core question that arises in the present case is as to whether the Trial Court can act as a Civil Court or Executing Court on finding that a person has committed offence under Section 138 of the Act. Learned Counsel for the respondent has invited attention to the judgment of the Supreme Court in P. Suresh Kumar v. R. Shankar by which grant of compensation to the tune of Rs. 7,00,000/- instead of fine of Rs. 5,000/- was approved. Attention has also been invited to the judgment of the Kerala High Court in Ramkrishnan v. Gangadharan Nair and Anr. in which it was held that in the facts and circumstances of this case, direction to pay a sum of Rs. 3.5 lakh as compensation was not excessive. Attention has also been invited to the judgment of the Supreme Court in Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr. 2001CriLJ950 , holding that the limit of fine of Rs. 5,000/- which a Judicial Magistrate can impose, cannot be exceeded merely on account of the provision for fine made in Section 138 of the Act. Subsequently, by Act No. 55 of 2002 the provision contained in Section 143 of the Act has been amended and the first proviso appearing under Sub-section (1) of Section 143 makes provision as under: 143. 5,000/- which a Judicial Magistrate can impose, cannot be exceeded merely on account of the provision for fine made in Section 138 of the Act. Subsequently, by Act No. 55 of 2002 the provision contained in Section 143 of the Act has been amended and the first proviso appearing under Sub-section (1) of Section 143 makes provision as under: 143. Power of Court to try cases summarily.--(1) Notwithstanding anything e contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code. 7. In the present case, assuming that the conviction of the applicant is proper, the question that arises for consideration is as to whether in all cases the Magistrate trying the offence under Section 138 of the Act is required to compensate the complainant under the provisions of Section 357(3) of the Cr.P.C. and to act as Civil or the Executing Court. Section 138 of the Act reads as follows: 138. Section 138 of the Act reads as follows: 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 or 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. 8. A perusal of the section manifests that it contemplates sentence of imprisonment for a term which may extend to two years or fine that may extend to twice the amount of cheque, or with both. Thus, the power to grant compensation animates only from Section 357(3) of the Cr.P.C. and not from Section 138 of the Act. In this connection, I may refer to the view expressed by Their Lordships in the case of Dilip Section Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. 2007CriLJ2417 . Thus, the power to grant compensation animates only from Section 357(3) of the Cr.P.C. and not from Section 138 of the Act. In this connection, I may refer to the view expressed by Their Lordships in the case of Dilip Section Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. 2007CriLJ2417 . In the said case the Supreme Court has observed in paragraphs 39, 40,41, 42 and 43 of the report as under: 39. If(sic) fine is to be imposed under the Act, the amount of which in the opinion of Parliament would be more than sufficient to compensate the complainant, can it be said, that an unreasonable amount should be directed to be paid by the. Court while exercising its power under Sub-section (3) of Section 357 The answer thereto must be rendered in the negative. Sub-section (5) of Section 357 also provides for some guidelines. Ordinarily, it should be lesser than the amount which can be granted by a Civil Court upon appreciation of the evidence brought before it for losses which might have reasonably been suffered by the plaintiff. Jurisdiction of the Civil Court, in this behalf, for realisation of the amount in question must also be borne in mind. A criminal case is not a substitution for a civil suit, far less execution of a decree which may be passed. 40. Prosecution under the Act may be contemplated as a measure of deterrence, but the same is never meant to be a persecution. 41. Even in a case where violation of fundamental right guaranteed under Article 21 is alleged, the amount of compensation cannot be arbitrary or unreasonable even under public law. 42. In Sube Singh v. State of Haryana it is stated (SCC pp. 198-99, para 38) The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a Civil Court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal e Court ordering compensation under Section 357 of the Code of Criminal Procedure. 43. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a Civil Court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal e Court ordering compensation under Section 357 of the Code of Criminal Procedure. 43. It does not appeal to us that although a compensation payable out of the quantum of fine would remain stayed under Sub-section (2) of Section 357 of the Code, if a compensation is directed to be paid under Sub-section (3) thereof, the same would not attract the said provision (see P. Suresh Kumar v. R. Shankar). 9. From the above decision of the Supreme Court it is luculent that if fine is imposed, the amount of compensation cannot be arbitrary or unreasonable and should be lesser than the amount which can be granted by the Civil Court upon a appreciation of the evidence brought before it for losses which the complainant had reasonably suffered. The Jurisdiction of the Civil Court for realisation of the amount in question must also be borne in mind as a criminal case is not a substitution for a civil suit far less execution of a decree which may be passed. I have, therefore, no hesitation in holding that the Judicial Magistrate has exercised the power capriciously without regard to the fact that basically it is the Civil Court which considers such claim and decrees the amount to be realised by a plaintiff. It is, therefore, clear, as observed by the Supreme Court, prosecution under the Act cannot be a device for persecution. 10. The loss that dishonour of cheque occasions to a party is the harassment of initiating proceedings against such party under Section 138 of the Act and pursuing the litigation in which inconvenience is suffered in addition to the expenses incurred. It is this loss which deserves to be compensated, of course, without in any way affecting the power of the Trial Court to award compensation with regard to the other losses suffered. The learned Magistrate has directed payment of compensation in the sum of Rs. 1,20,000/-, the amount of the dishonoured cheque, and has acted as a Civil Court or an Executing Court for recovery of the amount due to the complainant. 11. The learned Magistrate has directed payment of compensation in the sum of Rs. 1,20,000/-, the amount of the dishonoured cheque, and has acted as a Civil Court or an Executing Court for recovery of the amount due to the complainant. 11. Such a course in the light of the decision in Dilip Section Dahanukar (supra) though cannot deprecated it does create a situation that the message that reaches the public is that the amount is recoverable in such proceedings. I am, therefore, of the considered view that the learned Magistrate should have first seen whether the amount to be compensated should also include the amount of the cheque or the matter should be left for determination by a Civil Court. I may add that the deterrent provisions contained in Section 138 of the Act are devised taensure sanctity to the amount paid by cheque but not for recovery of the amount. 12. Learned Counsel for the respondent submits that since now the amount has already been paid by the applicant and insofar as the offence is concerned, the same has already been brought home, the applicant is not entitled to claim any relief. There is substance in the contention of the learned Counsel. Though the course adopted by the learned Magistrate cannot be strictly approved, since the amount has already been paid to the complainant (aggrieved person), no orders are necessary for its restitution. 13. Accordingly, maintaining the conviction of the applicant under Section 138 of the Act and the sentence awarded to her, this revision is disposed of with no orders for restitution of the amount of Rs. 1,20,000/- allowed as compensation.