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2018 DIGILAW 536 (HP)

Pritpal Singh v. Singla Medical Agencies

2018-04-03

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. (Oral) - Under the impugned judgment, the learned trial Court convicted the petitioner herein, for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The relevant portion of the sentence imposed upon the convict is extracted hereinafter: " that the convict shall undergo simple imprisonment for one year and six months and to pay fine double of the cheque amounts i.e. Rs.3,97,658/- for the commission of an offence under Section 138 of the Negotiable Instrument Act and in default of payment of fine, he shall undergo further simple imprisonment for six months. It is ordered that after realization of fine amount, the same shall be paid to the complainant as compensation after appeal period and in case of appeal it shall be dealt as per the directions of the learned Appellate Court " 2. A perusal thereof reveals that the learned Magistrate concerned, has, within mandate of Section 138 of Negotiable instrument Act, sentenced the petitioner herein, to, pay fine in a sum, double than the one, borne in the negotiable instrument, yet, the Magistrate concerned has also ordered, for the sum aforesaid being liquidated, as, compensation towards the complainant. 3. Consequently, the learned Magistrate has complied with the judgment reported in 2013 (4) Civil Court Cases 689 (SC) in case titled as Somnath Sarkar vs. Utval Basu Mallick and Anr. , relevant portion whereof is extracted hereinafter, wherein it is postulated that, upon imposition of sentence of fine, upon the convict, by the Convicting Court, in a sum double than the one comprised in the dishonoured cheque, thereupon the Magistrate concerned, being also obliged to order for its liquidation, as compensation vis-a-vis the complainant, as aptly done here at. " 11. We do not consider it necessary to examine or exhaustively enumerate situations in which Courts may remain content with imposition of a fine without any sentence of imprisonment. There is considerable judicial authority for the proposition that the Courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the Court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the Court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. In as much as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage. 12. Coming then to the question whether the additional amount which the High Court has directed the appellant to pay could be levied in lieu of the sentence of imprisonment, we must keep two significant aspects in view. First and foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the Court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. The High Court has, in the case at hand, obviously overlooked the statutory limitation on its power to levy a fine. It appears to have proceeded on the basis as though payment of compensation under Section 357 of CrPC is different from the power to levy fine under Section 138 , which assumption is not correct. 13. 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. 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. Viewed thus, the direction of the High Court that the appellant shall pay a further sum of Rs.69,500/- does not appear to be legally sustainable as rightly observed by my erudite Brother Vikramajit Sen, J. I, therefore, entirely agree with my Brothers view that payment of a further sum of Rs.20,000/- towards fine, making a total fine of Rs.1,00,000/- (Rupees one lac) out of which Rs.80,000/- has already been paid as compensation to the complainant, should suffice. The amount of Rs.20,000/- (Rupees twenty thousand) now directed to be paid shall not go to the complainant who is, in our view, suitably compensated by the amount already received by him. In the event of failure to pay the additional amount of Rs.20,000/- the appellant shall undergo imprisonment for a period of six months. With these words, I concur with the order proposed by Brother Vikramajit Sen, J." 4. In the event of failure to pay the additional amount of Rs.20,000/- the appellant shall undergo imprisonment for a period of six months. With these words, I concur with the order proposed by Brother Vikramajit Sen, J." 4. Further more, as mandated in a judgment, of the Honble Supreme Court reported in AIR 2001 SC 659 , in case titled as Stannv Felix Pinto v. Janmd Builders Pvt. Ltd. , relevant paragraph whereof is extracted hereinafter, qua as a pre condition for suspending the execution of sentence, of imprisonment imposed upon the convict, it being not imperative for the Court, to, direct the convict to deposit the entire fine amount/compensation amount, yet imposition, qua depositing of, some reasonable per centum thereof, solitarily being sufficient, to, enable the Court, while excising its jurisdiction, to suspend the execution of sentence of imprisonment imposed upon the convict, to hence make an apposite order qua its execution being suspended. " When a person was convicted under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior court for suspension of the sentence. The High Court while entertaining his revision granted suspension of the sentence by imposing a condition that part of the fine shall be remitted in court within a specified time. It is against the said direction that this petition has been filed. In our view the High Court has done it correctly and in the interest of justice. We feel that while suspending the sentence for the offence under Section 138 of the Negotiable Instruments Act it is advisable that the court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the pendency of the appeal. In this case the grievance of the appellant is that he is required by the High Court to remit a huge amount of rupees four lakhs as a condition to suspend the sentence. When considering the total amount of fine imposed by the trial court (twenty lakhs of rupees) there is nothing unjust or unconscionable in imposing such a condition. Hence, there is no need to interfere with the impugned order. As such no notice need be issued to the respondent " 5. When considering the total amount of fine imposed by the trial court (twenty lakhs of rupees) there is nothing unjust or unconscionable in imposing such a condition. Hence, there is no need to interfere with the impugned order. As such no notice need be issued to the respondent " 5. In aftermath, subject to deposit of 15% of the fine amount within four weeks from today, if not already deposited, and subject to the petitioners furnishing within four weeks, from today, personal and surety bonds in the sum of Rs. 50,000/- each to the satisfaction of the learned trial Court, and also with an undertaking therein to (a) appear in the Court as and when called upon to do so (b) and in case the instant Revision is dismissed, the petitioner shall surrender before the learned trial Court for receiving the sentence, thereupon the operation/execution of the sentence recorded on 31.10.2017 by the learned Judicial Magistrate, 1st Class, Court No.l, Solan, District Solan, H.P., in criminal case No. 294/3 of 2011/09, and, as stands affirmed by the learned Additional Sessions Judge-II, Solan, District Solan, H.P in criminal appeal No. 54ASJ-II/10 of 2017 on 15.3.2018, is suspended till further orders. However, it is made clear that in event of the petitioner herein omitting to comply with the conditions aforesaid within the stipulated period aforesaid, thereupon, the order suspending the execution of sentence of imprisonment imposed upon him shall stand vacated, and, the Registry shall issue warrants for committing the petitioner herein, to judicial custody. In view of the above, the application stands disposed of. Copy dasti.