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2018 DIGILAW 698 (HP)

Kamal Prakash v. Bhupender Singh

2018-04-20

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J —Looking to the nature of order, I propose to pass, it is not at all necessary to delve into the facts in detail. Suffice it to state that the complainant/respondent instituted a complaint under Section 138 of the Negotiable Instruments Act (for short ''Act'') against the petitioner on the allegations that the cheque of Rs.70, 000/- handed over by the petitioner to the respondent in order to discharge his liability to pay the debt had been dishonoured. The complaint was decided in favour of the respondent by the learned trial Magistrate and the petitioner was sentenced to pay fine of Rs.1, 40, 000/- and sentenced to undergo simple imprisonment for six months. In case of default of payment of fine, the petitioner was further directed to undergo simple imprisonment for one month. Lastly, it was directed that in case the petitioner deposits the fine of Rs.1, 40, 000/-, then 50% of the fine amount would be paid to the complainant/respondent as compensation. 2. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate on 03.03.2011/05.03.2011, though the petitioner preferred an appeal before the learned Sessions Judge, Kullu, however, the same came to be dismissed vide judgment dated 22.06.2011, constraining the petitioner to file the instant revision petition. 3. It is not in dispute that the petitioner has not only deposited the fine amount of Rs.1, 40, 000/-, but has deposited an additional amount of Rs.10, 000/-. It is further not in dispute that the only subsisting grievance of the respondent is that the fine amount of Rs.70, 000/- out of Rs.1, 40, 000/-, as awarded by the learned Courts below, should be awarded as compensation in his favour. 4. Therefore, in such circumstances, the following questions arise for determination:- (i) Whether the offence under Section 138 of the Act can be compounded, especially, when the petitioner has not only paid the fine amount, as directed by the learned Magistrate, but has also deposited an additional amount of Rs.10, 000/-? (ii) Whether the fine deposited by the petitioner can be directed to be awarded as compensation in favour of the respondent? Question No.1. 5. (ii) Whether the fine deposited by the petitioner can be directed to be awarded as compensation in favour of the respondent? Question No.1. 5. This question is no longer res integra in view of the three Hon''ble Judges'' Bench decisions of the Hon''ble Supreme Court in Priyanka Nagpal versus State (NCT of Delhi) and another , (2018) 3 SCC 249 and P.Ramadas versus State of Kerala and another , (2018) 3 SCC 287 , wherein it is clearly held that waiver of imprisonment in lieu of payment of additional compensation is permissible, though under exceptional circumstances. 6. Applying the ratio of the aforesaid judgments, it would be noticed that even in this case, the circumstances are exceptional inasmuch as the petitioner is facing the pangs and suffered agony of protracted trial and thereafter appeal/revision for the last nearly 13 years and has not only deposited the total cheque amount i.e. Rs.70, 000/-+Rs.70, 000/-, but has deposited an additional compensation of Rs.10, 000/-. Question No.2. 7. There can be no dispute that the offence under Section 138 of the Act is primarily a civil wrong where the burden of proof is on the accused in view of the presumption under Section 139 of the Act, but the standard of such proof is "preponderance of probabilities". 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 of IPC and with further powers of recovery under Section 431 Cr.P.C. 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. The amount of compensation is required to be fixed having regard to the extent of loss suffered by the offence of the accused (petitioner herein) as assessed by the Court. Admittedly, it is the respondent herein, who has suffered loss with effect from 03.05.2005 when the petitioner issued a cheque which eventually was dishonoured and is thus required to be suitably compensated. 8. On the other hand, the State has not suffered any loss and, therefore, taking into consideration all the attending facts and circumstances cumulatively, I am of the considered opinion that the ends of justice would be met in case the fine amount of Rs.70, 000/- as directed by the trial Magistrate is ordered to be paid as compensation to the respondent. Ordered accordingly. 9. Ordered accordingly. 9. In view of the above discussion, it is ordered that the impugned substantive sentence of simple imprisonment imposed in this case shall stand modified and substituted with a direction that the entire amount of Rs.1, 40, 000/- shall be paid as compensation to the respondent and in addition thereto, the respondent shall be entitled to the sum of Rs.10, 000/- deposited in the Registry of this Court pursuant to the directions dated 02.04.2018. In addition thereto, the respondent shall be entitled to sum of Rs.70, 000/-, ordered to be paid as compensation, to the respondent, by the learned trial Magistrate. 10. Consequently, the amount(s) deposited by the petitioner from time to time are ordered to be released in favour of the respondent as per procedure on his furnishing his bank account. 11. With these observations, the revision petition stands disposed of, so also the pending application, if any.