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2019 DIGILAW 443 (UTT)

NASHRUDDIN v. NAUSHAD ALI

2019-08-09

SHARAD KUMAR SHARMA

body2019
JUDGMENT Hon'ble Sharad Kumar Sharma, J. These are two Revisions:- (i) The Criminal Revision No. 266 of 2012, Nashruddin Vs. Naushad Ali is arising out of judgment dated 09.08.2012 rendered in Criminal Appeal No. 11 of 2012, Nashruddin Vs. Naushad Ali, passed by Special Judge E.C. Act/Additional District and Sessions Judge, whereby challenge was given to the judgment of Judicial Magistrate 1st Dehradun, rendered in Criminal Complaint No. 4702 of 2011, Nashruddin Vs. Naushad Ali, which was decided on 20.12.2011. (ii) Whereas, Criminal Revision No. 267 of 2012, Nashruddin Vs. Naushad Ali is arising out of judgment dated 09.08.2017, rendered in Criminal Appeal No. 12 of 2012, Nashruddin Vs. Naushad, passed by Special Judge E.C. Act/ Additional District and Sessions Judge, whereby challenge was given to the judgment of Judicial Magistrate 1st Dehradun, rendered in Criminal Complaint No. 4703 of 2011, which was decided on 20.12.2011. 2. The Courts below, while adjudicating upon the decision, which has been rendered on 20th December, 2011 by the Judicial Magistrate, 1st, Dehradun in Criminal Complaint No. 4703 of 2011, Nashruddin Vs. Naushad Ali, whereby, the impugned judgment was sought to be modified by the present revisionist so far to the extent, it related to the grant of relief to the complainant with regard to the quantum of compensation, which has been determined to be paid and also with regard to the determination of loss or damages, which has been suffered by the complainant on account of the commission of offence under Section 138 of the Negotiable Instruments Act. 3. The Revision, in question, i.e. Criminal Revision No. 266 of 2012, is filed by the complainant is also limited to the extent for the claim of an interest over the amount directed to be paid as compensation by modifying the judgment impugned and to enhance the compensation, which was due to be paid by the convict/respondent as a consequence of the dis-honouring the cheques for an amount of Rs.3,70,000/-, i.e. cheque No. 974657 for Rs.1,70,000/- and another cheque No. 974658 for an amount of Rs.2,00,000/-, which were drawn on Punjab and Sind Bank, which was issued on 15.05.2009. Thus, he claimed payment of interest on the aforesaid balance amount @ 18% on the amount due to be paid, which is shown to have been issued by the accused/respondent by the cheques, which was dishonored by the bank due to insufficient balance standing in the account of the accused person. 4. Briefly put, the fact as involved in the case was that in relation to a land, which was the subject matter of sale, it is contended by the learned counsel for the revisionists, that an amount of Rs.6 lacs was given as an advance money by way of two Cheques dated 14th November, 2008, bearing Cheque No. 004644 for Rs.1 lac, drawn on District Cooperative Bank Majra and the second cheque, being cheque No. 004643 was also drawn on District Cooperative Bank Majra for a sum of Rs.5 lacs by the complainant/revisionist. Despite of having received the said amount, the registry of the property, in question, which was supposed to be executed by 25th November, 2008, was not executed by him. Thus, total amount, which was given to accused respondent by the complainant was Rs.7,75,000/-. 5. It is contended by the complainant/revisionist that in order to get the sale deed executed, though he has purchased the requisite stamp duty in the name of his wife on 25th November, 2011, to the tune of Rs.38,000/-, but, the accused person did not put in appearance before the Sub Registrar to get the sale deed executed and, consequently, the agreement for sale, which was said to have been entered in favour of the revisionist/complainant could not be matured and, accordingly, in pursuance to the settlement, which was arrived at on 14th November, 2008, the deed could not be executed in relation to land khasra No. 1255 Gha, 1261 and 1262, having total area of 0.2220 hectares situated at village Mehuwala, despite the assurance given by accused to execute the sale deed by 02.06.2009. 6. Accordingly, it is the case of the revisionist that the accused person he had issued cheques in order to refund the money taken by him as earnest money, which was admittedly taken by the accused as an advance, for the purpose of execution of the sale deed by 02.06.2009. 6. Accordingly, it is the case of the revisionist that the accused person he had issued cheques in order to refund the money taken by him as earnest money, which was admittedly taken by the accused as an advance, for the purpose of execution of the sale deed by 02.06.2009. On the cheque being presented for encashment its the case of the revisionist that the same was dishonoured due to insufficient amount standing in the account of the accused person. Consequently, the Judicial Magistrate by an order dated 20th December, 2011, after considering the set of allegations and its establishment of an offence under Section 138 of the N.I. Act, had imposed a sentence of one year imprisonment on the accused person and the accused was directed to remit the amount of Rs.4 lcas to the complainant/revisionist within a period of one month and, accordingly, the sureties, which was executed, was cancelled. ßvkns'k vfHk;qDr ukS'kkn vyh dks ijØkE; fy[kr vf/kfu;e 1881 dh /kkjk 138 ds vkjksi dk nks"kh ikrs gq;s ,d o"kZ ds dkjkokl ls nf.Mr fd;k tkrk gSA vfHk;qDr dks vknsf'kr fd;k tkrk gS fd #ñ 400000 ¼pkj yk[k :i;s½ izfrdj ds :i esa ifjoknh dks ,d ekg ds vUnj vnk djssA vfHk;qDr dk ca/k i= fujLr fd;k tkrk gSA rFkk mlds izfrHkwfrvksa dks mReksfpr fd;k tkrk gSAÞ 7. Being aggrieved against the said order of conviction, the accused respondent had preferred a Criminal Appeal No. 11 of 2012, Nashruddin Vs. Naushad Ali and the Criminal Appeal too by virtue of the judgment dated 9th August, 2012, was dismissed and, consequently, has affirmed the judgment of the Judicial Magistrate, 1st Class, Dehradun as rendered in Criminal Complaint Case No. 4702 of 2011, Nashruddin Vs. Naushad Ali and Criminal Complaint No. 4703 of 2011, Nashruddin Vs. Naushad Ali, and consequently, the judgment dated 20th December, 2011 of the Judicial Magistrate, 1st was upheld. 8. Naushad Ali and Criminal Complaint No. 4703 of 2011, Nashruddin Vs. Naushad Ali, and consequently, the judgment dated 20th December, 2011 of the Judicial Magistrate, 1st was upheld. 8. The only argument, which has been confined by the complainant/respondent in the present Revision, as it has already been observed above, it is to the effect that the Criminal Courts, when they were dealing with the issue pertaining to the dishonour of the cheques under Section 138 of the N.I. Act, it ought to have taken into consideration the implication of Sub-section (4) of Section 357 of the Cr.P.C. as the Court at the time of determining the liability and the affect of its monetary deprivation, which was otherwise payable to the complainant, which has been made to the person in whose favour the cheque was drawn, he ought to have been reasonably compensated at least with the reasonable rate of interest, which was due to be paid otherwise in accordance with the cheque amount, which stood dishonoured or at least the reasonable amount, which would otherwise accrue on it under the normal course had the amount due to be paid by accused was invested profitably, with holdment of money resulted into loss of interest on the said amount. 9. Consequently, the learned counsel for the revisionist placed reliance on Sub-section (4) of Section 357 of the Cr.P.C., which deals with the aspect pertaining to the competence of the Court exercising its revisional power to enhance the compensation reasonably, its capacity of the Court to determine the reasonable amount of compensation, which could be paid. If the provisions as such contained under Section 357 of the Cr.P.C. is read in precision, it contemplates that when the Court imposes a fine or sentence of punishment, which constitutes to be the part of the judgment, the Court can always direct the recovery of fine to be imposed by the Court and if it is not done so, then as per the Sub-section (4) of Section 357 of Cr.P.C., the Appellate Court or the High Court or the Sessions Court, while exercising their powers of Revision can also impose a reasonable compensation while sentencing the accused person for commission of offence, which relates to the imposition of compensation or fine as contemplated under the provisions contained under Section 137 to be read with Section 138 of the N.I. Act. 10. 10. In the case at hand, the Judicial Magistrate, while passing an order of sentence of imprisonment, had only directed the payment of compensation to the tune of Rs. 4 lacs, which was the actual face value of the cheques, which was issued by the accused person and which was dishonoured on its presentation by the complainant/revisionist to the bank, argument is that revisionist has not been reasonably compensated as per Section 357 (4) Cr.P.C. 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. (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." 11. The grievance of the revisionist/ complainant, is that at the time when the Judicial Magistrate was adjudicating upon the offence under Section 138 of the N.I. Act, it ought to have considered the imposition of reasonable compensation or interest, which is otherwise the complainant has been deprived of, which would have been otherwise made payable to him as against the principal amount, which was due to be paid under the cheque, had it been invested in a profitable place as per the wishes of the complainant. 12. In furtherance of the aforesaid argument, the learned counsel for the revisionist, has also placed reliance on an amendment, which has been carried by a Gazette Notification as published on 2nd August, 2018, in the N.I. Act or also called as Amendment Act No. 20 of 2018, wherein, by adding Section 148, in the Principal Act, by its insertion, it has been provided that the Appellate Court may order deposit of amount, which is due to be paid in installment or may also provide a sufficient compensation as contemplated under Sub-section (6) of Section 143-A, which was inserted by the Amendment of 2nd August, 2018. 13. 13. The argument of the revisionist is in the light of the provisions as contained under Section 357 to be read with amended Section 143-A of N.I. Act, which has been sought to be attracted in view of the amendment made under the N.I. Act on 2nd August, 2018, incorporating Section 143-A which deals with the attraction of the provisions contained under Section 357 for the purposes of recovering of an adequate interim compensation in the proceedings under Negotiable Instruments Act, this Court is of the view that since the amendment of 2nd August, 2018, is punitive in nature and it grants the power to determine the quantum of compensation to be levied by the Court dealing with the offence under Section 138 of the N.I. Act, the Courts could have exercised its power under Section 143-A by attracting the provisions contained under Section 357 of the Cr.P.C. 14. On a rational reading of the amendment, which has been made on 2nd August, 2018, its enforceability has been made w.e.f. the date of its publication in the official gazette, i.e. as made on 2nd August, 2018, and since the notification itself has been made effective prospectively, the amendment made under Section 143-A, sub-section (6) attracting the provisions of Section 357 of the Cr.P.C. for the purpose of determining the adequate compensation payable on a conviction being made by the Courts, this Court is of the view that since it is punitive in nature and even the notification does not intend to apply it retrospectively, it will not be applicable in the instant case because it relates to an incident of dishonour of cheque, when issuance of cheque was made way back in 2008. As such, the provisions contained under Section 143-A (6) of the Amendment Act of 20 of 2018, would not apply in the present circumstances. Consequently, since for the first time by the said amendment, the provisions contained under Section 357 of the Cr.P.C. was made applicable for determining the adequate compensation under the aforesaid amendment that too cannot be made applicable in the instant Revisions as it relates to the dishonour of cheques, which took place much prior to Amending Act 20 of 2018 as enforced w.e.f. 02.08.2018. 15. Consequently, the Revisions lack merit and are accordingly dismissed.