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2008 DIGILAW 525 (GAU)

Ambika Baishya v. State of Assam

2008-07-22

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 26.12.2006, passed, in complaint Case No. 3745C/2004, learned Sub-Divisional Judicial Magistrate No. 2, Guwahati, convicted the accused-petitioner under Section138 of the Negotiable Instrument Act, 1881 ('the NI Act') and sentenced him to undergo simple imprisonment for one year with further direction to pay to the complainant the cheque amount of Rs. 60,000 and another amount of Rs. 50,000, as compensation, under Section 357, Cr.PC and, in default of payment, so directed, suffer simple imprisonment for a further period of one year. Aggrieved by his conviction and the sentence, passed against him, as mentioned hereinbefore, the accused-petitioner preferred an appeal. By judgment and order, dated 16.11.2007, passed, in Criminal Appeal No. 05/2007, while the learned Additional Sessions Judge (FTC No. 4), Kamrup, Guwahati, has upheld the conviction of the accused-petitioner under Section 138, N.I. Act, it modified the sentence by directing the accused-petitioner to suffer simple imprisonment for a period of one year and to pay, in all, a sum of Rs. 90,000, as compensation, under Section 357 Cr.PC, and, in default, to undergo simple imprisonment for a period of three months. With such modification in the sentence, the appeal has been dismissed. Still dissatisfied, the accused-petitioner has presented, this revision. 2. I have heard Mr. P.K. Roychoudhury, Learned Counsel, appearing on behalf of the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. None has appeared on behalf of the complainant-opposite party, though notice stands served on him. 3. Before entering into the question as to whether the order of conviction and sentence, passed, against the accused-petitioner, is sustainable in law or not, it is necessary to set out the respective cases of the parties concerned and the reasons, which led to the conviction of the accused-petitioner. 4. The case of the complainant, as unfolded at the trial, was thus: accused Ambika Baishya, in discharge of his liability towards the complainant, Nabajyoti Sharma, issued the cheque No. 494452, dated 4.9.2004, drawn, on the State Bank of India, Silpukhuri Branch, Guwahati, for a sum of Rs. 60,000, in favour of the complainant. 4. The case of the complainant, as unfolded at the trial, was thus: accused Ambika Baishya, in discharge of his liability towards the complainant, Nabajyoti Sharma, issued the cheque No. 494452, dated 4.9.2004, drawn, on the State Bank of India, Silpukhuri Branch, Guwahati, for a sum of Rs. 60,000, in favour of the complainant. The said cheque was deposited by the complainant in his account with his banker, namely, Canara Bank, Guwahati, for encashment, but, accused-person's banker, namely, State Bank of India, Silpukhuri Branch, Guwahati, returned, vide Memo, dated 19.9.2004, the cheque without payment on the ground that the payment had been stopped by the drawer. The complainant issued, on 13.9.2004, a notice, in writing, demanding payment of the cheque amount within fifteen days from the date of the receipt thereof by the accused. The accused did not pay the cheque amount within the period aforementioned, the complainant, then, presented the complaint, which gave rise to complaint Case No. 3745C/2004 aforementioned. 5. When the particulars of offence, under Section 138 of the NI Act, were read over and explained to the accused, he pleaded not guilty thereto. During trial, the complainant adduced evidence by examining four witnessed including himself. The accused was, then, examined under Section 313, Cr.PC, wherein he denied to have committed any offence at all/his defence being that the cheque, in question, had been lost and he accordingly informed his banker about the loss of the cheque, and stopped payment in respect thereof. This apart, according to the accused, the cheque was a 'self-cheque' and that having, somewhere, found the said cheque, the complainant struck off the word 'self', appearing on the cheque, and wrote his own name, as the payee, on the cheque. Thus, according to the defence, the whole case of the complainant was false and based, on fabrication of documents. In support of his case, the accused examined himself as a witness and further adduced evidence by examining one more witness. 6. Having found the accused guilty of the offence under Section 138 of the N.I. Act, the learned trial court convicted him accordingly and passed sentence against him with direction to make payment of compensation as mentioned hereinabove. The appeal, preferred by the accused-petitioner having failed, the petitioner is, now, before this Court with the present revision. 7. 6. Having found the accused guilty of the offence under Section 138 of the N.I. Act, the learned trial court convicted him accordingly and passed sentence against him with direction to make payment of compensation as mentioned hereinabove. The appeal, preferred by the accused-petitioner having failed, the petitioner is, now, before this Court with the present revision. 7. At the time of hearing of this revision, the legality of the accused-petitioner's conviction and the sentence, passed against him, have been assailed. The conviction of the accused-petitioner has been assailed on the ground that the accused-petitioner had adduced sufficient evidence to show that the complainant had forged the said cheque by converting a 'self-cheque' (which the accused-petitioner had issued, for collection of money, in his own name), into a cheque drawn in favour of the complainant. 8. While considering the above aspect of the case, what is extremely important to point out is that the cheque bears the name of the complainant as the payee for a sum of Rs. 60,000, the cheque having been issued, on 4.9.2004, against an account number, which is, admittedly, maintained by the petitioner with the State Bank of India, Silpukhuri Branch. This cheque was proved and exhibited as Exhibit 1 without any objection having been raised by, or on behalf of, the accused-petitioner. This apart, the complainant has also proved a forwarding letter issued by the accused. This forwarding letter has been brought on record, as Exhibit 2, without any objection having been raised by the accused. Exhibit 2 shows that by this letter, addressed to the complainant, the accused petitioner had forwarded the cheque (Exhibit 1) to the complainant, wherein the accused-petitioner had admitted his liability towards the complainant and issued the cheque in discharge of such liability. Though the accused-petitioner denied that he had drawn the cheque in favour of the complainant, he did not dispute that Exhibit 1(1) was his signature. This apart, Exhibit 2 remained an undisputed document, which clearly reflected issuance of the cheque by the accused in favour of the complainant in discharge of the former's liability. 9. Though the accused-petitioner denied that he had drawn the cheque in favour of the complainant, he did not dispute that Exhibit 1(1) was his signature. This apart, Exhibit 2 remained an undisputed document, which clearly reflected issuance of the cheque by the accused in favour of the complainant in discharge of the former's liability. 9. Section 139 of the NI Act, which is relevant to the facts and circumstances of the present case, reads, "It shall be presumed, unless the contrary is proved, that the holder of the cheque received, the cheque of the nature as referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability." 10. When read carefully, it becomes transparent that Section 139 makes it mandatory for the court, unless the contrary is proved, to presume that the holder of the cheque holds the cheque for the discharge, in whole or in part, of the debt or other liability of the drawer. This, in turn, means that if a person holds the cheque for a particular sum of money, it shall be presumed by the court that the drawer of the cheque had the liability to pay, at least, the sum of money for which the cheque has been drawn. There is, indeed, a difference between the expressions "may presume", on the one hand, and "shall presume" or "it shall be presumed", on the other. When the Legislature uses the expression "may presume", such presumption is called a natural presumption or presumption of fact, which a court is entitled to raise if the facts of a given case so require. However, when the statute uses the expression "shall presume" or "it shall be presumed", such a presumption is a presumption of law as distinguished from the presumption of fact. In a given case, when the facts established make it a case for raising a presumption of law, it becomes obligatory for the court to raise such a presumption. Clarified succinctly this position of the law of presumption, the Apex Court, in State of Madras v. A. Vaidyanatha Iyer AIR 1958 SC 61 , held thus: 14....It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Clarified succinctly this position of the law of presumption, the Apex Court, in State of Madras v. A. Vaidyanatha Iyer AIR 1958 SC 61 , held thus: 14....It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the Legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e.g., presumptions, and therefore should have the same meaning. "Shall presume" has been defined in the Evidence Act as follows: Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved until and unless it is disproved. It is a presumption of law and, therefore, it is obligatory on the court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumption of law constitute a branch of jurisprudence. While giving the finding quoted above the learned judge seems to have disregarded the special rule of burden of proof under Section 4 and therefore his approach in this case has, been on erroneous lines. 11. While under Section 114 of the Evidence Act, it is open to the court to draw or not to draw a presumption as to the existence of a fact from the proof of another fact, the court is, under Section139 of the NI Act, obliged to raise presumption. Thus, in the case of a presumption of law, the court has no option, but to raise presumption provided that the facts, required for raising such a presumption, exist. The Constitution Bench, in Dhanvantrai Balwantrai Desai v. State of Maharashtra, 1964 (1) Crl. Thus, in the case of a presumption of law, the court has no option, but to raise presumption provided that the facts, required for raising such a presumption, exist. The Constitution Bench, in Dhanvantrai Balwantrai Desai v. State of Maharashtra, 1964 (1) Crl. LJ 437 (SC) made explicit this position of law, when it held thus: 12....It is well to bear in mind that whereas under Section 114 of the Evidence Act it is open to the court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under Sub-section (1) of Section 4, however, it a certain fact is proved, that is, where any gratification (other, than legal gratification) per any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in Section 161, IPC. Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money, which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement, which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that if exists. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that if exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. (Emphasis is supplied) 12. In no uncertain words has clarified the Apex Court, in Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 , that when the necessary facts are established, the court is bound to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of the debt or liability towards the holder. 13. Presumptions, let us bear in mind, are rules of evidence and do not conflict with the presumption of innocence of the accused, for, the burden, on the prosecution, to prove its case, beyond all reasonable doubt, still remains intact. When the facts give rise to a presumption of law, the prosecution shall be taken to have discharged its obligation to prove its case beyond reasonable doubt. In such a case, the onus shifts to the accused to prove the contrary. 14. What is, now, of immense importance to note is that while a presumption of fact can be rebutted by an accused by offering an explanation, which is reasonable and plausible, a presumption of law cannot be discharged by explanation alone. What must be proved is that the explanation is true. 15. It needs to be, however, borne in mind that a fact is said to be proved, according to Section 3 of the Evidence Act, when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 16. What surfaces from the above discussion is that the holder of a cheque shall be presumed, in the light of the provisions of Section 139 of the NI Act, to have received the cheque in discharge of the debt or liability, which the drawer of the cheque had. This presumption cannot be discharged by the drawer by merely offering a reasonable or plausible explanation. This presumption cannot be discharged by the drawer by merely offering a reasonable or plausible explanation. Such a presumption can be discharged only when the drawer proves that he had no such debt or liability as the sum mentioned in the cheque, reflects. This, in turn, shows that the burden, placed on a drawer of a cheque, cannot be discharged by a mere explanation, which may sound reasonable or probable; rather, the explanation must be proved to be true. 17. To sum up, when a person holds a cheque, Section 139 makes it, as "already indicated above, obligatory for the court to presume that the holder of the cheque has received the cheque for discharge, in whole or in part, of a debt or other liability. Once such presumption is raised, the burden shifts to the accused to prove that the drawee did not hold the cheque in discharge of debt or liability of the drawer. When a presumption of fact is raised, the liability of the accused is treated to have been discharged if the explanation offered by the accused is reasonable or probable. But in the case of presumption of law, the accused has the onus of showing not only that his explanation is reasonable and probable, but also that his explanation is a true one. The expression "unless the contrary is proved", which occur in Section 139, makes it clear that the presumption has to be rebutted by proof and not by a mere explanation, howsoever plausible such an explanation may be. A fact is said to be proved, I may recall, when its existence is directly established, or when, based on the materials placed before it, the court finds its existence so probable that a reasonable man ought to act on the supposition that it exists. 18. The question, now, is as to how to discharge the burden, to prove that the explanation, offered by the drawer, is true. 18. The question, now, is as to how to discharge the burden, to prove that the explanation, offered by the drawer, is true. This can be done either by eliciting materials from the cross-examination of the complainant and his witnesses or by adducing defence evidence, for, in a given case, the defence may be able to succeed in eliciting, during the course of cross-examination of the prosecution witnesses, sufficient evidence, on record, showing that the explanation offered by the accused is such that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. To put it differently, it is not necessary, in order to discharge the burden, which shirts to the accused under Section 139, that the accused must discharge the burden by adducing defence evidence. What is required is that the accused shall prove that he has no liability as the sum mentioned in the cheque reflects and this burden an accused can discharge either by adducing his own evidence or he may, for this purpose, rely on the evidence of the prosecution. 19. Thus, once the cheque was proved to have been issued in favour of the complainant, the learned trial court was bound to have raised, and had rightly raised, presumption in favour of the complainant as holder of the cheque and, it was, in such circumstances, entirely left to the accused-petitioner to prove that the said cheque was not issued by him,, in favour of the complainant, in discharge of his liability. In this regard, it is of utmost importance to note, as already indicated above, that Exhibit 2 is the forwarding letter in respect of the cheque, in question, and this forwarding letter, as had been clearly held by the learned trial court and not in dispute, even now shows that the forwarding letter was issued in respect of the cheque, in question, whereby the petitioner had, in effect, acknowledged to have issued the cheque in discharge of his liability. Thus, the burden having shifted to the accused-petitioner to show that the cheque had not been issued by him in favour of the complainant, as the payee, the question is as to whether the accused-petitioner can be said to have discharged his liability, which the law had so imposed on him under Section 139, NI Act? 20. Thus, the burden having shifted to the accused-petitioner to show that the cheque had not been issued by him in favour of the complainant, as the payee, the question is as to whether the accused-petitioner can be said to have discharged his liability, which the law had so imposed on him under Section 139, NI Act? 20. With regard to the above, it needs to be carefully noted that when the complainant and his witness were being examined, none of them was, even faintly, suggested that it was, initially, a blank cheque, which bore only the signature of the accused-petitioner or that it was a 'self cheque' drawn by the accused-petitioner for a sum of Rs. 60,000 and that it was, at a later stage, converted into a negotiable instrument by writing the name of the complainant as the payee of the cheque for a sum of Rs. 60,000. As noted by the learned trial court, it was, for the first time, when the accused-petitioner had entered into the witness box, as witness, that he came out with the story that he had lost the cheque and that with regard to the loss of the cheque, he had sent letters to his banker and also to the President of the association of which he is the Secretary. She accused-petitioner admitted that he had not reported about the loss of the cheque to the police. This apart, the accused-petitioner exhibited two letters, namely, Exhibit 'Ka' and Exhibit 'Kha', to show that the had reported about the loss of the cheque, in question, to his banker and his association's President. But, neither in Exhibit "Ka" nor in Exhibit "Kha", as noticed by the learned trial court, there was any mention that the cheque was a blank cheque or a 'self cheque' and bore only the signature of the accused as the drawer. Exhibit 'Ka' shows that it was received by the SBI, Silpukhuri Branch, i.e., the accused-petitioner's banker, on 11.12.2003 but, when PW3 and PW4, both of whom are from SBI, Silpukhuri Banch, were examined, none of them was confronted with Exhibit 'Ka' by the defence. This apart, Exhibit 'Ka' is a copy of the letter, which the accused-petitioner claims to have submitted to his banker. This apart, Exhibit 'Ka' is a copy of the letter, which the accused-petitioner claims to have submitted to his banker. Thus, the letter, which is claimed to have been actually delivered to the bank, was neither called for by the accused-petitioner nor was it ever produced and proved at the trial. In these circumstances, the learned trial court came to take the view that the accused-petitioner had miserably failed to discharge the presumption, which was raised, under Section 139 NI Act, against him. The reasons, which the learned trial court has, thus, recorded for believing the case of the complainant and not believing at all the case of the accused-petitioner, cannot be said to be wholly irrational or illogical, nor can the reasons, assigned by the learned trial court, be said to be devoid of any merit. Such a finding of fact is, therefore, not interferable in a revision. 21. Coupled with the above, the learned appellate court has thoroughly scanned the evidence on record and has pointed out that the word, 'self', which had been, initially, written, in the place of payee, on the cheque, was struck off and, then, the accused-petitioner wrote his name thereon and, further, when the cheque, in question, was introduced into evidence, the accused-petitioner raised no objection thereto nor did he (i.e., the accused-petitioner) contend that the signature appearing, at the place of striking off the word, 'self', on the cheque, was not the signature of the accused-petitioner. Thus, these two signatures of the accused-petitioner (as correctly pointed out by the learned appellate court), were proved and exhibited, without any objection having been raised by the accused-petitioner, as Exhibits 1(1) and 1(2). This apart/learned trial court has also taken into account the forwarding letter aforementioned, wherein the accused had, admittedly, Written to the effect that he had enclosed a cheque, bearing number 8,94,432, dated 4.9.2004, for Rs. 60,000, of SBI, Silpukhuri Evening Branch, against the payable amount, which was taken by him from the complainant. Exhibit 2 remained, as the learned appellate court too has correctly emphasized, without having been denied. Hence, when Exhibit 1 is taken into account in the light of the contents of Exhibit 2, there remains ho room for doubt, as correctly held by the learned appellate court, that the cheque, in question, was, indeed, issued by the accused-petitioner, in favour of the complainant, for a sum of Rs. Hence, when Exhibit 1 is taken into account in the light of the contents of Exhibit 2, there remains ho room for doubt, as correctly held by the learned appellate court, that the cheque, in question, was, indeed, issued by the accused-petitioner, in favour of the complainant, for a sum of Rs. 60,000 and this cheque having been dishonoured by the accused-petitioner's banker, the accused-petitioner was guilty of offence under Section 138 of the NI Act. 22. It is, in the above context, worth noticing that though the forwarding letter (Exhibit "Ka") states that it was written by the accused, on 11.12.2002 itself, his banker had, according to Exhibit 'Ka', received the said forwarding letter, as late as, on 11.2.2003. The accused-petitioner offered no explanation as to why his bank received the letter, dated 11.12.2002, as late as on 11.2.2003. As far as DW2, whom the learned trial court has treated as an interested witness, is concerned, his evidence had not, otherwise also, helped the case of the accused-petitioner inasmuch as this witness's evidence was merely to the effect that the accused-petitioner had informed him about the fact that his cheque was missing. Obviously, DW2 has no knowledge if the cheque, in question, as claimed by the accused-petitioner, was ever lost or not. 23. Because of what have been discussed and pointed out above, I do not find that the finding of guilt, reached against the accused-petitioner, suffers from any infirmity, legal or factual. In such circumstances, the conviction of the accused-petitioner cannot be interfered with. 24. Having apprehended that the evidence adduced on record may be held clinching in nature and the conviction of the accused-petitioner may not be interfered with, Mr. P.K. Roychoudhury, Learned Counsel, appearing on behalf of the accused-petitioner, has submitted that in the case at hand, the sentence of corporal punishment, and not of fine, has been passed against the accused-petitioner by a Judicial Magistrate, 1st class. Mr. P.K. Roychoudhury also submits that at the relevant point of time, a judicial magistrate of first class had, in terms of Section 29, no authority to impose a fine exceeding Rs. 5,000. This apart, points out Mr. P.K. Roychoudhury, the accused-petitioner was saddled, by the learned trial court, with the liability to pay, in the form of compensation, in all, a sum of Rs. 1,10,000 which included the cheque amount of Rs. 5,000. This apart, points out Mr. P.K. Roychoudhury, the accused-petitioner was saddled, by the learned trial court, with the liability to pay, in the form of compensation, in all, a sum of Rs. 1,10,000 which included the cheque amount of Rs. 60,000 and that this order to pay compensation was, obviously, passed by the learned Magistrate in exercise of his powers under Section 357, Cr.PC and though the said Compensation amount of Rs. 1,10,000 was reduced by the learned appellate court to a sum of Rs. 90,000, the fact remains that the compensation of Rs. 90,000 has been awarded, in favour of the complainant, in exercise of powers, vested in a magistrate, by virtue of the provisions of Section 357, Cr.PC. Mr. P.K. Roychoudhury submits that an order for payment of compensation, under Section 357, Cr.PC, cannot be passed without giving opportunity of hearing to the accused on the question of compensation. No such opportunity of hearing, according to Mr. Roychoudhury, was ever accorded to the accused-petitioner before the direction imposing payment of compensation was passed against him. The fact that the accused-petitioner was not heard on the question of payment of compensation before the direction for payment of a sum of Rs. 1,10,000, as the compensation, was ordered by the learned trial court or the fact that even the learned appellate court did not hear the accused-petitioner on the question of compensation is, in fact, not in dispute before this Court. 25. Two important questions, therefore, arise for determination in the present revision/These two questions are: (i) In the face of the embargo, as stood placed, at the relevant point of time, on a Magistrate of the first class, under Section 29(2), Cr.PC, by empowering him to pass a sentence of fine of a sum not exceeding Rs. 5,000, whether a Magistrate of 1st class could have imposed, while convicting a person under Section 138, NI Act, fine exceeding Rs, 5,000, and (ii) Whether it is permissible to order payment of compensation by a court, in exercise of its powers under Section357, Cr.PC, without giving any opportunity of hearing, in this regard, to the person, who may have been convicted of an offence, which is punishable by fine. It is, thus, the mechanism of the provisions contained in Section 29(2), Cr.PC vis-a-vis Section 357, Cr.PC, which needs to be examined, in the present case, in the light of the provisions contained in Section 138, NI Act. 26. What is, now, of utmost importance to note is that nothing could be submitted, on behalf of the accused-petitioner, to show that in the face of the case, which stands proved against the accused-petitioner, the sentence of imprisonment, passed against him, is harsh, unreasonable or untenable in law. This apart, in the facts and circumstances of the present case, particularly, when it is clearly noticeable from the record that the accused-petitioner had made all attempts to deny his liability in the face of the cogent evidence, which had been brought on record against him, the sentence of simple imprisonment for the term of one year cannot be said to be unreasonable, harsh or inconsistent with the gravity of the offence, which the accused-petitioner is proved to have committed. Neither the learned trial court nor the learned appellate court has, it may be pointed out, passed any sentence of fine nor has any of these courts passed any sentence of which fine forms part; what the learned trial court did was that it sentenced the accused-petitioner to undergo simple imprisonment for a period of one year with no direction to pay fine but directed only payment of compensation, as indicated hereinabove, of a sum of, in all, Rs. 1,10,000. The learned appellate court too did not interfere with the sentence so passed; what the learned appellate court did interfere with is the quantum of compensation, which the learned trial court had awarded to the complainant, and reduced the compensation, so awarded, to a sum of Rs. 90,000. 27. Having realized that the sentence of imprisonment, passed against the accused-petitioner, may not be interfered with by this Court, Mr. P.K. Roychoudhury, Learned Counsel, as already pointed out above, has submitted that the learned trial court has directed payment of compensation to the tune of Rs. 1,10,000 and the learned Sessions Judge has reduced the same to a sum of Rs. 90,000, but before directing payment of compensation, neither the learned trial court nor the learned appellate court gave any opportunity of hearing to the accused petitioner in this regard. 1,10,000 and the learned Sessions Judge has reduced the same to a sum of Rs. 90,000, but before directing payment of compensation, neither the learned trial court nor the learned appellate court gave any opportunity of hearing to the accused petitioner in this regard. It is an admitted fact that no hearing was accorded to the accused-petitioner before the direction to make payment of compensation was passed by the learned trial court and that while reducing the quantum of compensation too, the learned appellate court did not accord any opportunity of hearing to the accused-petitioner. What, therefore, falls for further determination, in the present revision, is this: When a Magistrate convicts an accused of an offence and, having so convicted the accused, is of the view that the accused shall be directed to pay 'compensation', whether any separate or specific hearing is required to be accorded by the Magistrate to such a person before a direction to pay 'compensation' passed against him? 28. While considering the above question, what needs to be noted is that the punishment, prescribed, by Section 138 of the NI Act is imprisonment for a term, which may extend to one year, or fine, which may extend "twice the amount of cheque" or with both. Can a Magistrate of the first class impose fine exceeding live thousand rupees, while sentencing a person under Section 138 of the NI Act? 29. My quest for an answer to the above question brings me to Section 29(2) of the Code of Criminal Procedure (in short, "the Code') as the same stood at the relevant point of time. Section29(2), at the relevant point of time, stated, "the court of a Magistrate of the first class may pass a sentence of imprisonment for a term not extending three years, or fine not exceeding five thousand rupees, or of both." 30. A bare reading of Section 29(2) makes it clear that though a magistrate of the first class cannot, now, impose a fine exceeding rupees ten thousand, he had, at the relevant point of time, the limitation of not imposing fine exceeding rupees five thousand. A bare reading of Section 29(2) makes it clear that though a magistrate of the first class cannot, now, impose a fine exceeding rupees ten thousand, he had, at the relevant point of time, the limitation of not imposing fine exceeding rupees five thousand. On the strength of this limitation imposed on the powers of a magistrate of the first class, in the matter of imposing fine, as a sentence or as a part of sentence, it was contended in K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 , that since a judicial magistrate of the first class is not empowered to impose sentence of fine exceeding rupees five thousand, neither the trial court could have imposed a fine exceeding rupees five thousand nor could the High Court impose, on a person convicted of an offence under Section 138, NI Act, a sentence of fine exceeding the said limit of rupees five thousand. Reacting to the submissions so made, the. Apex Court, in K. Bhaskaran (supra), observed and held, "The trial in this case was held before a Judicial Magistrate of the first class, who could not have imposed a fine exceeding. Rs. 5,000 besides imprisonment. The High Court, while convicting the accused in the same case, could not impose a sentence of fine exceeding the said limit." 31. Two principles, governing sentence, particularly, sentence of imposition of fine, emerge from the decision in K. Bhaskaran (supra), namely, that (i) a magistrate of the first class cannot impose, in view of the embargo placed by Section 29(2), a sentence of fine exceeding rupees five thousand either as a complete sentence or as a part of the sentence, and that (ii) even a High Court, while maintaining conviction, cannot, in such a case, sentence the convicted person to pay fine exceeding the limit of five thousand rupees, as imposed by Section 29(2), unless the High Court, in a given case, after specifically hearing the convicted person on the question of enhancement of his sentence, opts to enhance the sentence in accordance with law. 32. The question, as to whether a magistrate of the first class may pass sentence exceeding rupees five thousand, was agitated, once again, in Pankajbhai Nagjibhai Patel v. State of Gujarat, AIR 2001 SC 567 . 32. The question, as to whether a magistrate of the first class may pass sentence exceeding rupees five thousand, was agitated, once again, in Pankajbhai Nagjibhai Patel v. State of Gujarat, AIR 2001 SC 567 . Having considered the various provisions of law, contained in the Code of Criminal Procedure and also under the NI Act, the Apex Court, in tune with its earlier decision in K. Bhaskaran (supra), held, in no uncertain words, that the power of a magistrate of the first class, even while imposing sentence Section 138 N.I. Act, is limited by the provisions of Section 29(2) and, hence, such a magistrate can neither, sentence a person to imprisonment exceeding three years nor can he sentence such a person to pay fine exceeding rupees five thousand. The Apex Court made it further clear, in Pankajbhai Nagjibhai Patel (supra), that even as part of a 'sentence', a magistrate of the first class cannot direct payment of 'fine' exceeding rupees five thousand. One of the reasons for the Apex Court's coming to such a conclusion was that whenever the Legislature felt the necessity of removing the limitation, which is, otherwise, imposed, on a magistrate, by the provisions of Section 29(2), specific provisions have been made by the Legislature. For example, Section 36 of the Drugs and Cosmetics Act states, "notwithstanding anything contained in the Code it shall be lawful for any Metropolitan Magistrate or Judicial Magistrate of the first class to pass any sentence authorized by this Act in excess of the powers under the Code". 33. The question, therefore, is as to what a Magistrate of the first class shall do if the Magistrate, having found an accused guilty of an offence under Section 138 N.I. Act, is of the view that in the given set of facts of a case, the accused needs to be directed to pay, as 'fine', a sum of more than rupees five thousand? The problem, which may so arise, has been taken care of by the Legislature by making provisions in the form of Section 325 of the Code. The problem, which may so arise, has been taken care of by the Legislature by making provisions in the form of Section 325 of the Code. Section 325(1) reads, "Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused if guilty, and that he ought to receive a punishment different in kind from, or more severe than that which such Magistrate is empowered to inflict or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate". 34. The Apex Court has pointed out, in Pankajbhai Nagjibhai Patel (supra), "that if the proceedings are so submitted to the Chief Judicial Magistrate under Section 325(1) of the Code, it is for the Chief Judicial Magistrate to pass such judgment, sentence or order, in the case, as he thinks fit." 35. It has been further pointed out by the Apex Court, in Pankajbhai Nagjibhai Patel (supra), that in an appropriate case, a magistrate may direct payment of compensation and, for directing payment of compensation, the magistrate's power, under Section 357(3) of the Code, suffers from no limitation. The relevant observations, made in this regard, in Pankajbhai Nagjibhai Patel (supra), read as under: Even that apart, a Magistrate who thins it fit that the complainant must be compensated with his loss he can resort to the course indicated in Section 357of the Code. This aspect has been dealt with in Bhaskaran's case (supra) 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 emphasized the need for making liberal use of that provision Hari Singh v. Sukhbir Singh 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. 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. 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. 50,0000, the court has power to award compensation to be paid to the complainant. 36. Coupled with the above, what needs to be borne in mind is the scheme of Section 357, which relates to orders to pay compensation. The relevant provisions of this section are reproduced hereinbelow: 357. Order to pay compensation. (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied- * * * (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a civil court; * * * (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal. (3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment, 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. * * * (5) At the time of awarding compensation in any subsequent, civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section. 37. There is a clear distinction between Sub-section (1) of Section 357 and Sub-section (3) thereof. Sub-section (1) provides for payment of compensation out of the sentence of fine, which may have been imposed; whereas Sub-section (3) deals with a situation, where the court imposes a sentence of which fine does not form a part. 37. There is a clear distinction between Sub-section (1) of Section 357 and Sub-section (3) thereof. Sub-section (1) provides for payment of compensation out of the sentence of fine, which may have been imposed; whereas Sub-section (3) deals with a situation, where the court imposes a sentence of which fine does not form a part. Thus, even when a court does not impose fine and sentence a person to imprisonment only, it has the power to direct payment of compensation. 38. What is, now, necessary to note, as observed in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. (2007) 6 SCC 528 , at para 27, is that 'compensation' is awarded towards sufferance of any loss or injury by reason of an act for which an accused person is sentenced. Although the penal law provides for criminal liability, any amount, if awarded as 'compensation', is considered to be recourse of the victim in the same manner, which may be granted in a civil suit. 39. In other words, when fine is hot imposed by a magistrate and he decides not to impose fine or not to send the case to the Chief Judicial Magistrate, in terms of Section 325 of the Code, for passing of appropriate sentence, the magistrate can, nevertheless, in exercise of his powers, under Section138 NI Act, read with Section 357(3), direct payment of 'compensation', besides passing sentence of imprisonment against an accused for a term not exceeding three years. Under the NI Act, the amount of fine imposed can be twice the amount of cheque, which stood dishonoured. When, however, fine is not imposed, compensation can still be directed to be paid for loss and injury caused to the complainant, because of the dishonor of the cheque. It is for this reason that the Apex Court, in Dilip S. Dahanukar (supra), observed: 30. The fine can be imposed only in terms of the provisions of the Act. Fine which can be imposed under the Act, however, shall be double of the amount of the cheque which stood dishonoured. When, however, fine is not imposed, compensation can be directed to be paid for loss or injury caused to the complainant by reason of commission of the offence. Fine which can be imposed under the Act, however, shall be double of the amount of the cheque which stood dishonoured. When, however, fine is not imposed, compensation can be directed to be paid for loss or injury caused to the complainant by reason of commission of the offence. Clause (b) of Sub-section (1) of Section 357 only provides for application of amount of find which may be in respect of the entire amount or in respect of part thereof. Sub-section (3) of Section 357 seeks to achieve the same purpose. 40. Though 'fine' and 'compensation' may seek to achieve the sumo purpose, the two are clearly distinct and different. Pointing out this distinction, the Apex Court, in Dilip S. Dahanukar (supra), observed, at para 31, thus: "We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a 'fine' but the legal fiction raised in relation to recovery of fine only, it is in that sense 'fine' stands on a higher footing than compensation awarded by the court." 41. While imposing compensation, the capacity of the accused to pay the amount needs to be borne in mind. No wonder, therefore, that the Apex Court, in Dilip S. Dahanukar (supra), observed, at para 35, thus: It is, therefore, seen that consideration for payment of compensation is somewhat different from payment of fine. It is, to the said extent, applied differently. As would be noticed a little later, it is necessary, to probe into the capacity of the accused to pay the amount and the purpose for which it is directed to be paid. 42. A 'compensation', we may bean in mind, is not imposed by a criminal court as 'fine', though, in the light of the provisions of Section 357(3), 'fine', in part or as a whole, may be directed to be paid to the victim, as 'compensation', if the 'fine' is realized from a convicted person, in accordance with law. It should be borne, in mind that the power to direct payment of 'compensation' is in addition to the court's power to sentence a person to imprisonment or sentence him to pay fine. The compensation aims at reassuring the victim of a crime that he or she is not forgotten in the criminal justice system. It should be borne, in mind that the power to direct payment of 'compensation' is in addition to the court's power to sentence a person to imprisonment or sentence him to pay fine. The compensation aims at reassuring the victim of a crime that he or she is not forgotten in the criminal justice system. It is, to some extent, a constructive approach to crimes. It is for this reason that in Hari Singh v. Sukhbir Singh (1988) 4 SCC 551 , the Apex Court, at para 10, advised the courts to exercise the power of imposition of fine liberally. In this context, the observations, made by the Apex Court, in Hari Singh (supra), in para 10, are reproduced below: 10. Sub-section (1), of Section 137 provides power to award, compensation to victims of the offence out of the sentence of fine imposed in accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way. 43. Apprehending, however, that the courts may impose limitless compensation, without caring to note the capacity of the convicted person to pay the amount of compensation, which a court may order, the Apex Court, in Hari Singh (supra), at pare 11, cautioned the courts by observing, thus: 11. The payment by way of compensation must, however, be reasonable. 43. Apprehending, however, that the courts may impose limitless compensation, without caring to note the capacity of the convicted person to pay the amount of compensation, which a court may order, the Apex Court, in Hari Singh (supra), at pare 11, cautioned the courts by observing, thus: 11. The payment by way of compensation must, however, be reasonable. What is reasonable may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default. 44. Even in the case of Sarwan Singh v. State of Punjab (1978) 4 SCC 111 , the Apex Court has drawn attention to the fact that if, in a given case, it is found that compensation should be paid, then, the capacity of the accused to pay the compensation has to be determined. Explaining this aspect of the matter, the Apex Court observed, in para 10, in Sarwan Singh (supra), as under: Though Section 545 enabled the court only to pay compensation out of the fine that would be imposed tinder the law, by Section 357(3) when a court imposes a sentence, of which line does not form a part, the court may direct the accused to pay compensation. In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such compensation. When a person, who caused injury die to negligence or it made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury. 45. What crystallizes from the above discussion is that the amount of compensation must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay a sum of money, as compensation, must be judged. At the same time, the suffering of the victim must also be kept in view. Thus, awarding of compensation is a balancing act between the needs of a sufferer, on the one hand, and the capacity of the person (who had caused the suffering) to pay the compensation, on the other. Such a balanced decision is not possible to reach unless an enquiry of, at least, a summery manner, is made by the court. The court, while imposing compensation, must also assign, howsoever brief may be, the reasons for awarding compensation. Since Sub-section (3) of Section 357 does not impose any limitation on the courts power to direct payment of compensation, it becomes clear that such exercise of power should be resorted to in appropriate cases only. Lest such a power becomes exercisable at the whims and caprice of a judge, a reasoned order is necessary and such an order can be passed only when the parties concerned are heard in the matter. Consequently, it is necessary that not only the accused, who may have been ordered to pay the compensation, but even the complainant or the victim, who may have suffered, be heard by the court. Consequently, it is necessary that not only the accused, who may have been ordered to pay the compensation, but even the complainant or the victim, who may have suffered, be heard by the court. A clear indication, in this regard, has been given by the Apex Court, in Dilip S. Dahanukar (supra), at para 38, in the following words: 38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortriori, an enquiry in this behalf, even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but Sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge. 46. Ordinarily, compensation shall be less than what the civil court would, in a similar case, award. A criminal case is not a substitute for a civil suit and, hence, the imposition of compensation cannot be arbitrary, uncanalized or unbridled (see Dilip S. Dahanukar). 47. Because of what have been pointed out above, I do find considerable force in the submissions made, on behalf of the accused-petitioner, that the accused-petitioner ought to have been heard, specifically, on the amount of compensation, which has been awarded by the learned trial court and, later on, reduced by the learned appellate court. 48. 47. Because of what have been pointed out above, I do find considerable force in the submissions made, on behalf of the accused-petitioner, that the accused-petitioner ought to have been heard, specifically, on the amount of compensation, which has been awarded by the learned trial court and, later on, reduced by the learned appellate court. 48. Considering, therefore, the matter in its entirety and in the interest of justice, while the conviction of the accused-petitioner and the sentence of imprisonment, passed against him, are maintained and not interfered with, the direction given to him to pay the compensation is hereby set aside and the matter is remanded to the learned trial court to hear both the complainant as well as the accused-petitioner on the question of compensation, as may be payable by the accused-petitioner. Upon such hearing, as has been directed, the learned trial court shall be free to pass, with regard to 'compensation', such order(s) as may be found reasonable and legally permissible, in law. 49. Lest there is delay in disposal of the case, the accused-petitioner is hereby directed to surrender, within a period of fifteen days, in the court of the learned Chief Judicial Magistrate, Kamrup, Guwahati, and the learned Chief Judicial Magistrate shall fix a date and send the matter, as regards hearing on the question of the compensation, to the learned trial court, for appropriate order(s) in terms of the observations made hereinabove. 50. With the above observations and directions, this Criminal Revision Petition shall stand disposed of. No order as to cost. Matter remanded.