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2009 DIGILAW 4938 (MAD)

Krishna Samy v. C. R. Sukumaran

2009-11-17

K.MOHAN RAM

body2009
Judgment :- The petitioner in the above Crl.O.P. is the complainant in C.C.No.71 of 2003 on the file the Judicial Magistrate No.1, Udumalaipet. The complainant filed a complaint against the respondent herein for the alleged offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as Act) in respect of the dishonour of a cheque bearing No.328663 for a sum of Rs.3,00,000 issued by the respondent in favour of the petitioner. 2. The trial Court convicted the accused and sentenced him to undergo R.I. for six months and to pay a sum of Rs.5000/-as fine by judgment, dated 210. 2005 made in C.C.No.71 of 2003. While the accused/respondent herein preferred an appeal against the conviction in C.A.No.482 of 2005 before the Additional District & Sessions Judge, Coimbatore, (FTC No.III), the petitioner herein preferred a revision in Crl.R.C.No.4 of 2006 before the same Court to enhance the sentence imposed on the respondent. Both the said appeal and the revision were heard together and by common judgment, dated 13. 2006, the learned District Judge dismissed Crl.R.C.No.4 of 2006 and set aside the sentence of imprisonment but confirmed the fine imposed on the respondent. 3. Being aggrieved by that the complainant/petitioner herein has come before this Court. 4. Heard both. 5. The learned counsel for the petitioner submitted that since the trial court did not award compensation in favour of the petitioner, the petitioner had preferred a revision petition. But the Revisional court without assigning any reasons whatsoever not only dismissed the revision petition but also modified the sentence imposed on the respondent to one of fine. The learned counsel further submitted that the very object of enacting the Negotiable Instruments Act is to make the cheques issued in commercial transactions more acceptable and by enacting stringent provisions of law by providing powers to courts to award compensation. 6. The learned counsel submitted that there is absolutely no reason assigned by the both the Courts below for not awarding the compensation. The learned counsel in support of his contentions relied upon the decisions of the Apex Court reported in Pankajbhai Nagjibhai Patel v.State of Gujarat ( (2001) 2 SCC 595 ) and Suganthi Suresh Kumar v. Jagadeesan ( (2002) MLJ (Crl.) 399). 7. On the aforesaid submissions, the learned counsel for the respondent was heard. 8. The learned counsel in support of his contentions relied upon the decisions of the Apex Court reported in Pankajbhai Nagjibhai Patel v.State of Gujarat ( (2001) 2 SCC 595 ) and Suganthi Suresh Kumar v. Jagadeesan ( (2002) MLJ (Crl.) 399). 7. On the aforesaid submissions, the learned counsel for the respondent was heard. 8. The learned counsel submitted that the Courts below have exercised their judicial discretion in a proper manner and considering the materials available on record, they did not award compensation and there is absolutely no error in the reasonings of the Courts below in not awarding the compensation. The learned counsel further submitted that it is not mandatory that in all cases arising under 138 of the Act, compensation should be awarded. 9. In support of his contentions, the learned counsel based reliance on the following decisions:- .a. Shingara Singh vs. State of Haryana and another ( (2003) 12 SCC 758 ). .b. Sivasuriyan vs. Thangavelu ( (2004) 13 SCC 795 ). .c. Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd., and Another ( (2007) 6 SCC 528 ). 10. I have considered the aforesaid submissions made on either side and perused the materials available on record and the decisions relied on by them. 11. The trial court on a consideration of the entire evidence on record has given a categorical finding that the promissory note Ex.P1 executed by respondent is true and is binding on him and only in discharge of the amount due under the promissory note the cheque Ex.P2 for a sum of Rs.3,00,000/-was issued by the respondent in favour of the petitioner. When the cheque was presented for encashment, the same was returned for want of funds in the account of the respondent. In spite of the legal notice served on the respondent, he failed to pay the amount covered by the cheque, which has given rise for the cause of action for filing the complaint. Considering the aforesaid aspects, the trial Court imposed the sentence of six months R.I. and fine of Rs.5000/-. 12. A perusal of the judgment of the revisional court shows that the revisional court has concurred with the reasonings of the trial court for convicting the respondent herein. Considering the aforesaid aspects, the trial Court imposed the sentence of six months R.I. and fine of Rs.5000/-. 12. A perusal of the judgment of the revisional court shows that the revisional court has concurred with the reasonings of the trial court for convicting the respondent herein. But while considering the sentence imposed on the respondent, the revisional court has observed as under:- "Based on the facts and circumstances of this case, this court observed that the quantum of punishment awarded herein is solely on the higher side. Considering the plea in reduction in sentence of punishment passed by the trial court by the appellant, this Court is inclined to reduce the quantum of punishment to imposition of fine alone exonerating the appellant from undergoing corporeal punishment. At the same time, this Court observed that the situation, facts and circumstances of the instant case does not warrant imposition of higher quantum of fine or ordering of compensation, both having been refrained. Therefore, the fine alone is maintained. At the same time, the criminal revision petition praying for enhancement of punishment and order compensation is being dismissed since the quantum of punishment is fixed imposing a fine of Rs.5000/-only which had already been paid. With this variations, this criminal appeal and criminal revision petition are dismissed." 13. In the considered view of this Court, as rightly contended by the learned counsel for the petitioner, the aforesaid reasons recorded by the revisional court cannot be sustained. In fact, the revisional court has not recorded any acceptable reasons for setting aside the sentence of imprisonment and not ordering compensation. 14. In the decision reported in (2001) 2 SCC 595 , the Apex Court has laid down as under:- "Even that apart, a Magistrate who thinks fit that the complainant must be compensated with his loss he can resort to the course indicated in Sections 357 of the Code. This aspect has been dealt with in Bhaskaran case as follows:(SCC p. 521, para 31). "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). No limit is mentioned in sub-section and therefore, a Magistrate can award any sum as compensation. It is well to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh). No limit is mentioned in 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.5000/- the Court has power to award compensation to be paid to the complainant." 18. 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. 19. In the result, while retaining the sentence of imprisonment of six months, we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs.83,000/- to the respondent complainant. The said amount shall be deposited with the trial court within six months failing which the trial court shall resort to the steps permitted by law to realise it from the appellant." 15. In the decision reported in (2002) MLJ (Crl.) 399, the Apex Court reiterated the principles laid down in K. Bhaskaran v. Sankaran Vaidhyan Balan (1999)7 SCC 510 . 16. A perusal of the aforesaid two decisions makes it abundantly clear that the learned Magistrate in cases arising under Section 138 of the Act can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. In the decision reported in (1988) 4 SCC 551 , the Apex Court has emphasised the need for making liberal use of that provisions contained in Section 357(3) Cr.P.C. While dealing with the cases arising under the Act, the trial Courts have to consider as to what would be the reasonable amount of compensation payable to the complainant. In spite of the aforesaid decisions, the trial courts are not making proper use of the provisions contained in Section 357(3) of the Code. 17. In spite of the aforesaid decisions, the trial courts are not making proper use of the provisions contained in Section 357(3) of the Code. 17. In this case, both the trial court as well as the revisional court have not assigned any reasons whatsoever for not awarding the compensation to the complainant. 18. The learned counsel for the petitioner submitted that since the petitioner had prosecuted the respondent under the Act, he had not filed any suit for the recovery of the amount covered by the cheque and because of that the petitioner has suffered a huge financial loss. According to the learned counsel, the petitioner has not filed any suit for the recovery of money as he was hopefully expecting that the Courts below would award compensation once the Courts below have convicted the respondent. .19. The said contention of the learned counsel for the petitioner merits acceptance. The courts below, in the considered view of this Court, ought to have awarded the compensation to the extent of the amount covered by the cheque to alleviate the distress of the complainant. But this Court is unable to accept the reasonings assigned by the revisional court for setting aside the sentence of imprisonment and retaining the fine of Rs.5000/- without awarding compensation. 20. At this juncture, it is pertinent to consider the decisions relied upon by the learned counsel for the respondent. 21. In the decision reported in (2003) 12 SCC 758 , it has been laid down that in a revision filed against acquittal by a private party, the accused cannot be convicted. The said decision is not helpful to decide the issue that arises for consideration in this case. .22. In the decision reported in (2004) 13 SCC 795 , the question that arose for consideration was whether the court can direct payment of compensation in exercise of power under sub-section (3) of Section 357 in a case where fine already forms a part of the sentence. While considering the said issue, the Apex Court has laid down as under:- ."On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part. While considering the said issue, the Apex Court has laid down as under:- ."On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part. In the case in hand, a court having sentenced to imprisonment, as also fine, the power under sub-section (3) of Section 357 could not have been exercised. In that view of the matter, the impugned direction of the High Court directing payment of compensation to the tune of Rs one lakh by the appellant is set aside." 23. Basing reliance on the aforesaid decisions, the contention of the learned counsel for the respondent is that since the courts below have awarded sentence of fine, it is not open to them to award compensation. But it has to be pointed out that if the courts below had considered the facts of the case and thought it fit to exercise its discretion to invoke Section 357(3) of the Code, then the Courts below would have set aside the fine of sentence and instead awarded compensation to alleviate the distress of the complainant. But such recourse had not been resorted to by the courts below and for not taking such resort to Section 357(3) of the Code no acceptable reasons whatsoever have been recorded by the courts below. 24. Even in the decision reported in (2001) 2 SCC 595 , the Apex Court while retaining the sentence of imprisonment of six months, deleted the fine portion from the sentence and directed the appellant to pay compensation to the respondent/complainant. 25. In the light of the above and in the considered view of this court, similar order can be passed in this case also. 26. Accordingly, the above Crl.O.P. is allowed deleting the fine portion from the sentence and directing the respondent to pay a compensation of Rs.3,00,000/-(the amount covered by the cheque issued by the respondent in favour of the petitioner) to the petitioner herein. 26. Accordingly, the above Crl.O.P. is allowed deleting the fine portion from the sentence and directing the respondent to pay a compensation of Rs.3,00,000/-(the amount covered by the cheque issued by the respondent in favour of the petitioner) to the petitioner herein. The said amount shall be deposited before the trial court within six months from the date of receipt of a copy of this order failing which the trial court shall resort to take steps to realise the said amount from the respondent and in the event of such deposit, the petitioner may be permitted to withdraw the same on filing a petition as required by law.