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2011 DIGILAW 102 (CHH)

H. R. Construction v. Shri Ram Prasad Soni

2011-03-14

T.P.SHARMA

body2011
ORDER T.P Sharma, J. 1. By this revision under Section 397 read with Section 401 of the Code of Criminal Procedure the applicant has challenged legality & propriety of the judgment dated 31-7-2006 passed by the 8th Additional Sessions Judge (FTC), Raipur in Criminal Appeal No. 66/2006, whereby while affirming the judgment of conviction, order of sentence and order of payment of compensation, dated 28-3-2006 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No. 550/ 2006 relating to one cheque, learned Additional Sessions Judge has held that the non-applicant is not guilty for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') relating to two cheques on the ground that they were taken as advance. 2. I have heard learned Counsel for the parties, perused the judgments and records of the Courts below. 3. As per undisputed facts of the case, three cheques were issued by the non-applicant to the applicant viz., Exs.P-1, P-2, & P-3. Complaint under Section 138 of the Act was filed against the non-applicant for dishonour of three cheques. The applicant has examined himself in support of his complaint and in his detailed evidence he has deposed that the non-applicant has issued three cheques Exs.P-1, P-2 & P-3 which have been subsequently dishonoured. But in para 13 of his cross-examination he has admitted that he has given in writing to the non-applicant relating to two cheques Exs.P-2 & P-3 that he has taken those cheques as advance. Relying on the aforesaid evidence of the applicant, the 8th Additional Sessions Judge (FTC), Raipur has held that the non-applicant is not guilty for commission of offence under Section 138 of the Act relating to the aforesaid two cheques Exs.P-2 & P-3 and that the non-applicant is guilty for commission of offence under Section 138 of the Act relating to one cheque Ex.P-1 and sentenced the non-applicant to pay fine of Rs. 4,000/- & compensation of Rs. 30,000/- relating to the amount of cheque. 4. Learned Counsel for the applicant vehemently argued that the non-applicant has issued cheque in discharge of debt or liability. 4,000/- & compensation of Rs. 30,000/- relating to the amount of cheque. 4. Learned Counsel for the applicant vehemently argued that the non-applicant has issued cheque in discharge of debt or liability. The applicant has denied the suggestion that the non-applicant has not issued cheque relating to payment of pending bills, although he has deposed in para 13 of his evidence that he has given in writing to the non-applicant on 26-3-98 that he has taken the aforesaid two cheques (Exs.P-2 & P-3) in advance. In the circumstances, after recording aforesaid part of evidence, the Court was under obligation to re-examine the witness and to provide opportunity of giving explanation in the light of paras 8, 11 & 13 of his evidence. Learned Counsel further submitted that as per para 13 of the evidence of the complainant, he has given in writing to the non-applicant relating to such on 26-3-98, but Exs.P-2 & P-3 are not related to the aforesaid date, they are post-dated cheques of 31-3-98 & 30-4-98. In case of post-dated cheques, as held by the Supreme Court in the matter of Goaplast (P) Ltd. v. Chico Ursula D'Souza and Anr. 2003 SCC (Cri) 603, presumption under Section 139 of the Act is required to be drawn that the non-applicant has issued cheque for repayment of loan or discharge of liability legally recoverable. 5. On the other hand, learned Counsel for the non-applicant opposed the revision and submitted that the applicant was under obligation to explain the aforesaid statement deposed by him in para 13 of his evidence, but he himself has not explained the aforesaid deposition of para 13 of his evidence. The applicant has denied the suggestion made to him in paras 8 & 11 of his evidence that the aforesaid cheques are not related to payment of pending bills, but when specific question was put to him in para 13 relating to the act of the non-applicant, he has admitted specifically that on 26-3-98, he has given in writing to the non-applicant that he has taken two cheques bearing Nos. 115243 & 115244 in advance i.e. he has taken two cheques Exs.P-2 & P-3 in advance. Learned Counsel further submitted that this evidence is self-explanatory and sufficient to prove the fact that Exs.P-2 & P-3 have not been issued by the non-applicant relating to any loan or discharge of any liability legally recoverable. 6. 115243 & 115244 in advance i.e. he has taken two cheques Exs.P-2 & P-3 in advance. Learned Counsel further submitted that this evidence is self-explanatory and sufficient to prove the fact that Exs.P-2 & P-3 have not been issued by the non-applicant relating to any loan or discharge of any liability legally recoverable. 6. Finding relating to cheques Exs.P-2 & P-3 is substantially based on the evidence of the applicant which reads as follows: Hindi 7. The applicant has stated in examination-in-chief that the non-applicant has issued three cheques for final payment as Exs.P-1, P-2 & P-3. He has denied the suggestion in paras 8 & 11 of his cross-examination that Exs.P-1, P-2 & P-3 have not been issued relating to payment of pending bills, but when it was specifically asked by the non-applicant relating to acknowledgement of two cheques Exs.P-2 & P-3 not relating to Ex.P-1, the applicant has admitted the facts and suggestions made by the non-applicant that he has given in writing on 26-3-98 to non-applicant that he has taken two cheques Exs.P-2 & P-3 in advance. 8. In case of any ambiguity in the evidence of any witness, the party who has produced the witness is under obligation to re-examine the witness in order to remove such ambiguity. But in the present case, the applicant, who was witness before the trial Court, has not re-examined himself which shows that there was no ambiguity in his evidence and while trying to establish the fact the accused/non-applicant has issued the cheques Exs.P-2 & P-3 for discharge of loan or liability when specific question relating to document was put to him, then no option was left to the applicant except to admit the suggestion made by the accused/non-applicant relating to cheque issued in advance. 9. As held by the Supreme Court in Goaplast's case1 (supra) postdated cheques are also liability and presumption would be drawn against the person who has issued cheques. In the present case, issuance of cheque has not been disputed by any of the parties. By giving specific answer and admission, the applicant has admitted the fact that he has taken two cheques (Exs.P-2 & P-3) bearing Nos. 115243 & 115244 in advance. This shows that at that time, the non-applicant has not issued or executed the cheques Exs.P-2 & P-3 for discharge of any debt or liability legally recoverable. 10. By giving specific answer and admission, the applicant has admitted the fact that he has taken two cheques (Exs.P-2 & P-3) bearing Nos. 115243 & 115244 in advance. This shows that at that time, the non-applicant has not issued or executed the cheques Exs.P-2 & P-3 for discharge of any debt or liability legally recoverable. 10. On the basis of aforesaid statement of the applicant, the 8th Additional Sessions Judge (FTC), Raipur has not committed any illegality in holding that the non-applicant is not liable for commission of offence under Section 138 of the Act relating to cheques Exs.P-2 & P-3. Although the applicant or the non-applicant has not challenged the sentence part of the finding of the trial Court as well as that of the appellate Court, but the sentence imposed upon the non-applicant by the trial Court and modified by the appellate Court in Criminal Appeal No. 66/2006 clearly reveal that order of payment of compensation in terms of Section 357 of the Code of Criminal Procedure is contrary to law. While awarding compensation, the Courts are required to govern by the provisions of Section 357 of the Code of Criminal Procedure which reads as follows: 357. While awarding compensation, the Courts are required to govern by the provisions of Section 357 of the Code of Criminal Procedure which reads as follows: 357. Order to pay compensation.--(1) When a Court impose 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 (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to the 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; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons, who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (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. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (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. 11. In case of sentence of fine along with other sentences, the Court is competent to order for payment of compensation the whole or any part of the fine to the complainant or the victim in accordance with Sub-section (1) of Section 357 and in case when sentence does not form part of fine then the Court is competent to order for compensation to the complainant or victim to any extent. 12. In the present case, the appellate Court has affirmed the sentence of fine of Rs. 4,000/- and has also passed order for payment of compensation of Rs. 30,000/-. The order for payment of compensation of Rs. 30,000/- is contrary to law and the appellate Court has exceeded the jurisdiction vested on it. In the light of Sub-section (3) of Section 357 of the Code of Criminal Procedure. the Court was not competent to pass order for payment of compensation extending the amount of fine i.e. Rs. 4,000/-. 13. The 8th Additional Sessions Judge (FTC), Raipur has not committed any illegality in holding that the non-applicant has not issued cheques Exs.P-2 & P-3 in discharge of any debt or liability and both the Courts below have not exceeded the jurisdiction vested on them or failed to exercise the jurisdiction vested on them relating to holding the non-applicant/accused guilty relating to cheque Ex.P-1. The applicant or the non-applicant has not raised the ground relating to illegality committed by the Court while awarding compensation, but the illegality is on the face of record. 14. Consequently, in exercise of revisional jurisdiction, the order passed by the appellate Court to the extent of payment of compensation of Rs. 30,000/-by the non-applicant/accused to the applicant/complainant, is modified and hereby set aside. The non-applicant is hereby sentenced to pay fine of Rs. 4,000/- under Section 138 of the Act. The entire amount of fine shall be paid to the applicant as compensation under Section 357 (1) of the Code of Criminal Procedure. 15. The revision stands disposed of. 16. 30,000/-by the non-applicant/accused to the applicant/complainant, is modified and hereby set aside. The non-applicant is hereby sentenced to pay fine of Rs. 4,000/- under Section 138 of the Act. The entire amount of fine shall be paid to the applicant as compensation under Section 357 (1) of the Code of Criminal Procedure. 15. The revision stands disposed of. 16. Consequently, I.A. No. 1/2011 also stands disposed of Revision Partly Allowed