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2018 DIGILAW 1874 (HP)

Dhir Singh v. Jagmohan Mehta

2018-10-30

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The petitioner was convicted for offence under section 138 of the Negotiable Instruments Act (for short “the Act”) for dishonour of cheque amounting to Rs.1,49,000/- and was sentenced to undergo simple imprisonment for one year and to pay a compensation of Rs. 2,20,000/- to the complainant and in default of payment of compensation to further undergo simple imprisonment for six months. However, on an appeal even though the amount of compensation was left undisturbed, but the substantive imprisonment of one year was modified and reduced to three months. Aggrieved by the judgment of conviction and sentence so passed by the learned Sessions Judge, the petitioner has filed the instant revision petition. 2. Brief facts of the case, as set out in the complaint, are that the respondent is an orchardist and a private fruit contractor/commission agent and having his apple orchard and deals in sale and purchase of fruits and vegetables and runs his business in Sabzi Mandi, Khesgu, P.O. Luhri, Tehsil Anni, District Kullu, whereas the petitioner is a Ladani by profession and deals in sale and purchase of apples and other cash crops. In the month of October, 2011, the petitioner approached the respondent and offered to purchase the apples boxes from him. This offer was accepted and consignments of apples were sent to the petitioner and when the respondent asked for the payment of the said lot, the petitioner promised to pay the same within few months. However, upto September, 2012, no payment was made despite the petitioner having been contacted through his well wishers. It was only after great persuasion, the petitioner issued a cheque No. 120753 dated 15.11.2013 amounting to Rs. 1,49,000/- payable at State Bank of India, Branch Office Luhri, District Kullu in favour of the respondent. However, when the cheque was presented for encashment, the same was returned by the banker with the remarks “insufficient fund” and thus it was dishonoured. The respondent issued a legal notice, which was duly served upon the petitioner. However, no payment was made by the petitioner. Therefore, the complaint under section 138 of the Act came to be filed in the court of learned Judicial Magistrate, Anni, who has convicted and sentenced the petitioner, as aforesaid and on an appeal, the judgment of conviction was modified and the substantive sentence of one year imprisonment was reduced to three months imprisonment. 3. Therefore, the complaint under section 138 of the Act came to be filed in the court of learned Judicial Magistrate, Anni, who has convicted and sentenced the petitioner, as aforesaid and on an appeal, the judgment of conviction was modified and the substantive sentence of one year imprisonment was reduced to three months imprisonment. 3. It is vehemently argued by Sh. Rajesh Mandhotra, learned counsel for the petitioner that the findings recorded by the courts below are perverse inasmuch as the complainant/respondent has failed to prove the case against the petitioner, more particularly, when the cheque in question has not been sent to the Handwriting Expert, and therefore, there was no occasion for the courts below to have convicted him. On the other hand, Mr. Ashok Kumar, learned vice counsel for the respondent, would contend that the petition being without merit should be dismissed as the judgments rendered by the courts below cannot be termed to be perverse, particularly, when these are based on the correct appreciation of the evidence on record. 4. I have heard the learned counsel for the parties and have gone through the material placed on record. 5. In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799 , the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 6. In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”. 7. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Apex Court observed that High Court “committed an error in making a re5 assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”. 8. 7. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Apex Court observed that High Court “committed an error in making a re5 assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”. 8. In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721 , the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms: “It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.” 9. In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant. 10. In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence. 11. In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under: “It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.” 12. 11. In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under: “It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.” 12. In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”. 13. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 , the Hon’ble Supreme Court held as under: “In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 14. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338 , the Hon’ble Supreme Court held as under: “The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a nonspeaking judgment.” 15. Having set out the legal parameters for exercise of revisonal jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse, then obviously this Court would be entitled to interfere with the findings so recorded. 16. Therefore, it is necessary to advert to the findings, more particularly, the evidence that has come on record. To prove the issuance of cheque Ex.CW-1/B, the respondent examined himself as CW-1 and tendered in evidence his affidavit Ex.CW-1/A wherein he virtually reaffirmed and reasserted the averments raised by him in his complaint wherein it has been inter alia pleaded that in lieu of the payment of apple transactions, which had taken place in the apple season of 2011, the petitioner had issued him a cheque Ex.CW-1/B in the month of September, 2012, which upon presentation for encashment had been dishonoured. In cross-examination, the witness admitted that the petitioner had not purchased the apples from him after 2011, but maintained that the petitioner still owed him money. He denied that the petitioner had given him two cheques towards security and also denied that there was agreement between them in the year 2011 that he would tear off the said security cheques and self stated that the petitioner had given him cheques in the month of September, 2012. 17. CW-2 Yogesh Kumar was posted as Clerk/Cashier at State Bank of India, Branch Luhri and had brought the relevant record of the Bank and stated that cheque bearing No. 120753 belongs to their bank and had been issued to the account No. 11647127849 and was in the name of the petitioner Dhir Singh. He further stated that the cheque Ex.CW-1/B was presented at the Luhri Branch, but was returned due to insufficient fund in the account of the petitioner vide return memo Ex.CW-1/C and entry qua the same was made in the register of the bank at mark 'A’, a copy of which was Ex.CW-1/G. He further proved on record the bank statement of the aforesaid account number Ex.CW-1/H, which also carries an entry qua the return of the cheque on 24.12.2013 and shows the balance in the account of the petitioner to be only Rs. 4,088.33 on the said date. 18. To rebut the case of the respondent, the petitioner examined himself as sole witness and in his examination-in-chief tendered his affidavit as Ex.DW-1/A wherein he stated that he purchased apples from the respondent in the year 2011. He had given two security cheques to the respondent, out of which the respondent had given one cheque to a person named Suresh. Thereafter when he and respondent settled their accounts at the end of the year 2011, he requested the respondent to return the security cheque. However, despite assurance that the cheques would be torn off, the respondent presented the same for encashment. He further stated that he did not owe any amount to the respondent and went on to state that he had not given any cheque to the respondent in the month of September, 2012. In his cross-examination, he admitted that he had bought apples from the respondent about 6-7 times. He further stated that at the time of settlement of accounts with the petitioner in the month of September, 2011, he had paid Rs. 1,50,000/- to the respondent. However, no receipt was prepared. He further admitted that he had received the legal notice and that he had not replied to the same. He admitted that he had not initiated any proceedings against the respondent even after the receipt of legal notice qua his claim that he had given the cheque only as a security. He further admitted his signatures on the cheque Ex.CW-1/B. This in entirety is the evidence that has come on record. 19. It is not in dispute that the cheque was issued by the petitioner. The only defence taken by him was that it was issued as a security under arrangement that the respondent had agreed to tear off the cheque after the payment, which was made by the petitioner in September, 2011 itself. However, the petitioner has failed to prove this fact, as was required by him. After all, under sections 118-A and 139 of the Act, the presumption is that the dishonoured cheque has been issued in discharge of legally enforceable debt or other liability by the accused/petitioner. Therefore, the burden of proof to prove otherwise is on the accused/petitioner. 20. It is then contended by Sh. After all, under sections 118-A and 139 of the Act, the presumption is that the dishonoured cheque has been issued in discharge of legally enforceable debt or other liability by the accused/petitioner. Therefore, the burden of proof to prove otherwise is on the accused/petitioner. 20. It is then contended by Sh. Rajesh Mandhotra, Advocate that the courts below could not straightway award compensation without first determining the amount of fine as it is only when the Court has determined the amount of fine then the question of compensation out of the same amount would arise; and would place heavy reliance on the concurring judgment of Hon’ble Mr. Justice T.S. Thakur (as his Lordship then was) in Somnath Sarkar vs Utpal Basu Mallick and another, (2013) 16 SCC, 465 wherein it was observed as under: “17. The second aspect relates precisely to the need for appreciating that the power to award compensation is not available under Section 138 of Negotiable Instruments Act. It is only when the Court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process comprises two stages. First, when the Court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of Rs.80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same.” 21. Section 357 of the Cr.P.C. reads as under: “357. Order to pay compensation. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same.” 21. Section 357 of the Cr.P.C. reads as under: “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- (a) in defraying the expenses properly incurred in the prosecution; (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; (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. (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.” 22. The question as to whether it is permissible to grant compensation without imposing fine while convicting the accused for the commission of offence punishable under section 138 of the Act is no longer res integra in view of the judgment of the Hon’ble Supreme Court in Dilip S. Dahanukar vs Kotak Mahindra Co. Ltd. and another, (2007) 6 SCC 528 wherein the Court held that the power of the Courts to award compensation to victim under section 357 of the Cr.P.C. is not ancillary to other sentences but in addition thereto and that the imposition of fine and/or grant of compensation to a great extent must dependant upon the relevant factors apart from such amount of compensation being just and reasonable. The Court after considering the provisions of Section 357 (1) (3) held that if fine has been imposed, the Magistrate can award compensation out of the fine imposed by him under section 357 (1). However, where fine has not been imposed, it is permissible to award compensation under section 357 (3). A distinction was drawn between these two provisions and it was held that while the jurisdiction of the Magistrate under section 357 (1) would be limited to the limit of fine prescribed under section 29 of Cr.P.C. However, there would be no limit under section 357 (3) and therefore, unlimited fine can be imposed. It was observed as under: “26. The distinction between sub-Sections (1) and (3) of Section 357 is apparent. Sub-Section (1) provides for application of an amount of fine while imposing a sentence of which fine forms a part; whereas sub-Section (3) calls for a situation where a Court imposes a sentence of which fine does not form a part of the sentence. 29. The purposes for application of fine imposed has been set out in clauses (a) to (d) of sub-Sections (1) of Section 357. Clause (b) of sub- Section (1) of Section 357 provides for payment of compensation out of the amount of fine. 29. The purposes for application of fine imposed has been set out in clauses (a) to (d) of sub-Sections (1) of Section 357. Clause (b) of sub- Section (1) of Section 357 provides for payment of compensation out of the amount of fine. The purpose enumerated in clause (b) of sub-Section (1) of Section 357 is the same as sub-Section (3) thereof, the difference being that whereas in a case under sub-Section (1) fine imposed forms a part of the sentence, under sub- Section (3) compensation can be directed to be paid whence fine does not form a part of the sentence. 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. Clause (b) of sub- Section (1) of Section 357 only provides for application of amount of fine which may be in respect of the entire amount or in respect of a part thereof. Sub-Section (3) of Section 357 seeks to achieve the same purpose. 23. It was further held that the purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. 24. The aforesaid exposition of law was reiterated in K.A. Abbass H.S.A. vs Sabu Joseph and another (2010) 6 SCC 230 wherein the Hon’ble Supreme Court held that the power to award compensation is not ancillary to other sentences but in addition thereto. This power was intended to reassure victim that he/she is not forgotten by the justice delivery system. It was held as under: “15. Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced.” 25. Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced.” 25. It was further held that sentence of imposition can be granted in default of payment of compensation awarded under section 357 (3) because the whole purpose of the provision is to accommodate the interests of the victim in criminal justice system because sometime the situation becomes such that there is no purpose served by keeping the person behind the bar. Instead of directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. 26. Similar reiteration of law can be found in R. Mohan vs A.K. Vijaya Kumar (2012) 8 SCC 721 wherein it was held that it is permissible for the Courts to impose imprisonment in default of the payment of compensation. It was held: “Thus, if a fine is not a part of the order of sentence, the court may order the accused to pay compensation to the person who has suffered any loss or injury because of the act of the accused for which he I sentenced.” 27. Thus, if a fine is not a part of the sentence, the Court may order the accused to pay compensation to the person who has suffered any loss or injury because of the act of the accused for which he is sentenced. 28. Earlier to that, in R. Vijyan vs Baby and another (2012) 1 SCC 260 , the Hon’ble Supreme Court held that it was not permissible to award compensation in addition to the fine and the compensation could have been awarded out of the fine imposed. Hence, the amount of Rs. 20,000/- awarded as compensation was held to be beyond jurisdiction. It was further noticed that since the power to impose fine was limited to Rs. 5,000/-, therefore, the amount of fine could not have been increased to justify the compensation. Hence, the amount of Rs. 20,000/- awarded as compensation was held to be beyond jurisdiction. It was further noticed that since the power to impose fine was limited to Rs. 5,000/-, therefore, the amount of fine could not have been increased to justify the compensation. However, the distinction between section 357 (1) and (3) was noticed and it was held as under: “9. It is evident from Sub-Section (3) of section 357 of the Code, that where the sentence imposed does not include a fine, that is, where the sentence relates to only imprisonment, the court, when passing judgment, can direct the accused 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. The reason for this is obvious. Sub-section (1) of section 357 provides that where the court imposes a sentence of fine or a sentence of which fine forms a part, the Court may direct the fine amount to be applied 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. Thus, if compensation could be paid from out of the fine, there is no need to award separate compensation. Only where the sentence does not include fine but only imprisonment and the court finds that the person who has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation under compensation under section 357(3).” 29. In Kumaran vs State of Kerala and another (2017) 7 SCC 471 , the Hon’ble Supreme Court, while dealing the question whether it was permissible to impose sentence in default of payment of compensation held that it was permissible to do so and while doing so, reliance was placed upon section 357 (3) and in para 23 it was observed as under: “23. A conspectus of the aforesaid judgments would show that compensation under the old Cr.P.C. was always recoverable as a part of fine, and that even after default imprisonment having been undergone, a fine could still be collected in the manner provided by Section 386. A conspectus of the aforesaid judgments would show that compensation under the old Cr.P.C. was always recoverable as a part of fine, and that even after default imprisonment having been undergone, a fine could still be collected in the manner provided by Section 386. The requirement of special reasons was introduced by the amending Act of 1923. The special reasons outlined in the Bombay High Court judgment of 1935 as well as in the Mysore High Court judgment of 1964 would show that it is enough that sufficient reasons or some good reason be given in order that fine be realized even after default imprisonment has been undergone. The Courts held that despite the fact that the reach of Section 386(1) proviso was only qua warrants that issued after default imprisonment was undergone, yet, the principle of the proviso to Section 386(1) would apply even to warrants issued before default imprisonment was undergone. The law, therefore, till the enactment of the 1973 Code, made it clear that Section 386, and Section 70 IPC read together would lead to the conclusion that fines were recoverable even after default imprisonment was undergone, provided there were special reasons for recovery of the same. With the Code of 1973 came an interesting change. Sub-section (3) was added to Section 357, which was an entirely new provision making it clear that the Court may, when passing judgment, order the accused to pay by way of compensation such amount as may be specified in the order to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. This is provided that the Court imposes a sentence of which fine does not form a part. Another important change was made in Section 421(1). The proviso to the said sub-section was altered because the 41st Law Commission Report, in recommending amendments to the old Section 386 stated, after noticing the Bombay High Court judgment in Digambar's case as follows : "28.10. Fine should be recoverable when compensation has been ordered. We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. Fine should be recoverable when compensation has been ordered. We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under Section 545 has been passed for payment of expenses or compensation out of fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to section 386(1) should make this clear." 30. In a very recent judgment of the Hon’ble Supreme Court in Meters and Instruments Private Limited and another vs Kanchan Mehta, (2018) 1 SCC 560 , it has clearly been held that in a complaint under section 138 of the Act, the complainant can be given not only the cheque amount but double the amount so as to cover the interests and costs. Section 357 (1) (B) of the Cr.P.C. provides for payment of compensation for the loss caused by the offence out of the fine. Where fine is not imposed, the compensation can be awarded under section 357 (3) to the person who has suffered loss. Sentence in default can also be imposed. The object of the provision is not merely penal but to make the accused honour the negotiable instruments. The Hon’ble Supreme Court thereafter laid down the following principles: 18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. 18.3. Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. 18.4. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. 18.5 Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.” 31. Thus, what can be deduced from the aforesaid exposition of law is that in a complaint under section 138 of the Act having been proved the complainant can be awarded not only the cheque amount but the double amount so as to cover the interests and costs under section 357 (1) (B) of the Cr.P.C. Payment of compensation for the loss caused by the offence can be ordered to him. The Court can award fine under section 357 (1) and out of the same direct the payment of compensation for the loss caused by the offence to the complainant. Further where fine is not imposed, compensation still can be awarded in favour of the complainant under section 357 (3) Cr.P.C. 32. In view of aforesaid discussion and for all the reasons as stated, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.