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Madhya Pradesh High Court · body

2017 DIGILAW 1043 (MP)

Gopal Sharma v. Punjab Stores

2017-09-27

S.K.GANGELE

body2017
ORDER 1. The petitioners have filed this revision petition against the judgment dated 7th December 2016 passed in Criminal Appeals No.2700046 of 16 and 2700073 of 16. 2. The petitioner no. 1 was prosecuted for commission of offence punishable under section 138 of the Negotiable Instruments Act. The trial Court awarded a sentence of one year RI on four counts because the petitioner No.1 had issued four cheques to the respondents and those cheques were dishonoured. The trial Court also awarded compensation of Rs. 53,76,000/- and in default to pay the compensation jail sentence of six months. 3. The appellate Court allowed partly the appeal filed by the petitioners and set aside the sentence of RI one year awarded by the trial Court on four counts. However, the appellate Court upheld the amount of compensation, i.e. Rs. 53,76,000/- as awarded by the trial Court with 9% interest from the date of filing the private complaint. The appellate Court awarded fine of Rs. 40,000/- and punishment of jail sentence upto rising of the Court. 4. Against the aforesaid judgment the petitioners filed this revision petition. 5. The respondent, M/s. Punjab Stores also filed a criminal revision which is registered as Criminal Revision No.368 of 2017 against the same judgment questioning the judgment of the appellate Court in regard to setting aside the sentence awarded by the trial Court. That revision is also pending. 6. It is an admitted fact that after passing of the judgment by the Ist appellate Court the petitioner No.1, Gopal Sharma did not pay the amount of compensation as awarded by the appellate Court neither deposited the amount before the Court. This Court in Criminal Rivision No. 368 of 2017 ordered issuance of warrant against the respondent No.1 if he did not deposit the compensation amount as ordered by the trial Court and first appellate Court. Inspite of that amount has not been deposited. The respondents also filed an application and objection about maintainability of Criminal Rivision No. 624 of 2017 on the ground that the petitioners did not deposit the amount of compensation as ordered by the appellate Court and trial Court, hence, the revision petition is not maintainable. 7. Learned counsel appearing on behalf of the petitioners has submitted that the petitioners raised legal points and have prima facie case so the criminal revision filed by the petitioners could be admitted for hearing. 7. Learned counsel appearing on behalf of the petitioners has submitted that the petitioners raised legal points and have prima facie case so the criminal revision filed by the petitioners could be admitted for hearing. It is further submitted by learned counsel that the Court cannot force the petitioners to deposit the amount because these are not execution proceedings. In support of his arguments, he relied on the judgment of the apex Court passed in Dilip S.Dahanukar v. Kotak Mahindra Co. Ltd. and another, reported in [(2007) SCC 528]. 8. Contrary to this, learned senior counsel appearing on behalf of the respondents has submitted that the petitioners are playing hide and seek game before the Court. Before the first appellate Court, the petitioners filed an application that two months' time be granted to deposit the amount of compensation as awarded by the trial Court. The application is dated 7.12.2016. An affidavit was also filed before the first appellate Court. The first appellate Court vide order dated 7.12.2016 granted two months' time to deposit the amount of compensation and inspite that the amount has not been paid or deposited. The first appellate Court set aside the sentence in default of stipulation as awarded by the trial Court. 9. In the present case both the Courts, i.e. the trial Court and first appellate Court have held that the petitioners issued four cheques of Rs.10 lacs each in favour of the respondents and those cheques were issued to enforce legal liability. The cheques were not issued as securities. There were business transactions between the petitioners and the respondents, hence, the petitioners issued the cheques during the course of business transaction. Those cheques were bounced, hence, the petitioners are guilty for commission of offence punishable under section 138 of the Negotiable Instruments Act. The first appellate Court upheld the amount of compensation awarded by the trial Court of Rs. 53,76,000/- with interest @ of 9% p.a. from the date of filing the complaint before the trial Court. However, set aside the punishment awarded by the trial Court of one year each on four counts and the punishment of six months in default stipulation to pay the compensation. 10. 53,76,000/- with interest @ of 9% p.a. from the date of filing the complaint before the trial Court. However, set aside the punishment awarded by the trial Court of one year each on four counts and the punishment of six months in default stipulation to pay the compensation. 10. On behalf of the petitioners an application was filed before the first appellate Court on 7.12.2006 that the petitioners could not arrange the amount as awarded by the trial Court as compensation due to ban on old currency. They have deposited an amount of Rs.6 lacs, hence, they be granted further two months' time to deposit the amount of compensation. In support of the application, Gopal Sharma filed an affidavit dated 7.12.2016. Thereafter, the first appellate Court vide order dated 7.12.2016 granted the petitioners two months' time to deposit the amount of compensation. From the aforesaid facts, it is clear that the petitioners were willing to deposit the amount of compensation and they sought time of two months' to deposit the aforesaid amount. Since, then near about eight months have passed but the petitioners did not deposit the amount of compensation. It means that the petitioners are playing hide and seek with the Courts and inspite of filing the affidavit the amount of compensation has not been paid or deposited with the Court. The petitioners were willing to pay the amount of compensation, so the first appellate Court may have set aside the conviction. However, when the first appellate Court upheld the compensation, the petitioners are again making prayer that the judgment of the first appellate Court is not proper. 11. The Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, reported in AIR 2002, SC 681 has held as under in regard to awarding proper sentence if the person is not paid the amount of cheque which was dishonoured and the object of enactment and provisions of section 138 of the Negotiable Instruments Act :- “12. The total amount covered by the cheques involved in the present two cases was Rs. 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial Court or revision before the High Court or this Court. The total amount covered by the cheques involved in the present two cases was Rs. 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial Court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee-bite sentence as had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case. 13. Learned counsel for the respondent contended that the complainant has subsequently filed a civil suit and attached all the properties of the respondent.That is not a ground for lessening the gravity of the offence or to impose a minor sentence chosen by the trial Court.” 12. The apex Court in R. Mohan v A.K. Vijaya Kumar and A.K.Vijaya Kumar v. R. Mohan, reported in 2012 AIR SCW 4085 has held as under in regard to object under the Act and section 138 of the Negotiable Instruments Act directing the accused to pay the compensation to the complainant :- para 18 “18. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under section 357(3) of the Code would be frustrated if he is driven to take recourse to section 421 of the Code. Order under section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If section 421 of the Code puts compensation ordered to be paid by the Court on par with fine so far as mode of recovery is concerned, then there is no reason why the Court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under section 64 of the IPC. It is obvious that in view of this, in Vijayan, this Court stated that the above mentioned provisions enabled the Court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default.” 13. From the aforesaid judgments of the Hon'ble apex Court the principle of law is that it is obligatory on the part of the Court to pass an appropriate order in regard to awarding sentence so the order to pay compensation may be enforced. In the present case the petitioners are deliberately flouting the judgment of the first appellate Court. In this view of the matter, it is directed that the petitioners shall deposit the amount of compensation of Rs.53,76,000/- as awarded by the first appellate Court within three weeks before the trial Court minus Rs. 6 lacs as deposited before the trial Court earlier, failing which this petition shall stand dismissed automatically without reference to the Court.