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2024 DIGILAW 884 (CAL)

Kamal Ghosh v. State of West Bengal

2024-04-23

SHAMPA DUTT (PAUL)

body2024
JUDGMENT : Shampa Dutt (Paul), J. 1. The present revision has been preferred praying for quashing of the Judgment and Order dated 29th July, 2019 passed by the Learned Additional Sessions Judge, Fast Track Court – IV, Barrackpore, North 24 Parganas, in Criminal Appeal No. 06 of 2018 (Re. Sri Subir Bhattacharjee Vs. Sri Kamal Ghosh and the State of West Bengal) arising out of Complaint Case No. 253 of 2013 (Re. Kamal Ghosh Vs. Subir Bhattacharjee) whereby allowing the Appeal on contest, without any order as to cost by setting aside the conviction and sentence given by the Learned Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas on 30th December, 2017 in Complaint Case No. 253 of 2013 (TR Case No. 359/2013)(Re. Kamal Ghosh Vs. Subir Bhattacharjee) and further directing the convict/Appellant to set at liberty and also discharged him from his bail bonds and also vacating the stay, if any, in the said Appeal. 2. The petitioner and opposite party No. 2 herein were known and/or acquainted with each other, and out of faith and trust the Petitioner on 10th December, 2009 gave to the Opposite Party No. 2, on his demand an amount of Rs. 3,75,000/- only, and a written agreement to that effect embodying the facts and circumstances was duly executed by and between them in presence of two attesting witnesses, and the said instrument was duly notarized on the same day before Learned Kashinath Karmakar, Notary, Government of West Bengal, having Registration No. 15/2002. 3. The petitioner states that it was agreed in the said agreement dated 10th December, 2009 that the entire amount of Rs. 3,75,000/- only would be refunded within one month from the date of entering into such agreement. 4. The petitioner states that even after expiry of the period of one month as agreed, the Opposite Party No. 2 herein failed to refund the said amount and on repeated requests of the petitioner herein, the Opposite Party No.2 issued one Account payee cheque in favour of the Petitioner bearing cheque No. 242559 dated 30th March, 2013 of UTI Bank Limited, Nabapally, Sangam Market, Colony More, Barasat, Kolkata - 700 126 branch, to the tune of Rs. 3,75,000/- only. 5. 3,75,000/- only. 5. The petitioner duly presented the Cheque bearing No. 242559 dated 30th March, 2013 for encashment with his Bank Syndicate Bank, Barrackpore Branch, but the said Cheque was returned by the bank on 2nd April, 2013 with an endorsement “Account Closed” vide a cheque returning Memo. 6. The petitioner issued a demand notice through the learned Advocate on 29th April, 2013 inter alia stating all the facts and called upon the accused/opposite party no. 2 to pay the sum of Rs. 3,75.000/- only in lieu of said dishonored cheque within a period of fifteen days from the date of receipt of said notice and the said notice was dispatched through Registered Post with Acknowledgement Due. That an intimation of said notice was served by the postal Authorities on 30th April, 2013 and subsequently returned to the addressee of the same with a postal remarks “Not Claimed” on 7th May, 2013. 7. The petitioner upon compelling circumstances filed a complaint before the Additional Chief Judicial Magistrate at Barrackpore, North 24 Parganas on 22nd May, 2013 and the said complaint was registered as Complaint Case No. 253/2013 (Re. Kamal Ghosh Vs. Subir Bhattacharjee). 8. The petitioner as complainant in the Complaint Case No. 253/2013 (Re. Kamal Ghosh Vs. Subir Bhattacharjee) adduced evidence as PW-1 by filing evidence in chief and submitted documents which were marked as exhibits as follows:- i) Loan Agreement dated 10th December, 2009 Exhibit – 1 ii) Cheque Bearing No. 242559 dated 30.03.2013 Exhibit – 2 iii) Return Memo of Syndicate Bank Dt. 02.04.2013 Exhibit - 3 iv) Copy of Demand notice Dt. 29.04.2013, along with Envelop and Acknowledgement Card collectively Exhibit - 4 9. After careful consideration of all the documents so produced, evaluating the evidence and considering the argument in the matter the learned Court was pleased to pass an order dated 30th December, 2017 holding that the Opposite Party No. 2, the accused therein is found guilty for the offences punishable under Section 138 of the Negotiable Instrument Act, and thereby convicted him to undergo simple imprisonment for four months and to pay compensation of Rs. 7,50,000/- to the complainant therein/the Petitioner herein, within one month from the date of the pronouncement of the judgment and order, in default the Accused, the Opposite Party No.2 herein in is to suffer further simple imprisonment for four months. 10. 7,50,000/- to the complainant therein/the Petitioner herein, within one month from the date of the pronouncement of the judgment and order, in default the Accused, the Opposite Party No.2 herein in is to suffer further simple imprisonment for four months. 10. The petitioner states that being aggrieved and dissatisfied by the said Judgment and Order dated 30th December, 2017 passed by the Learned 5th Judicial Magistrate at Barrackpore, North 24 Parganas the Opposite Party no. 2 herein as Appellant preferred an Appeal being Crl. Appeal No. 06/2018 (Rs. Subir Bhattacharjee Vs. Kamla Ghosh and Another) before the Learned Additional District Judge, 1st Court, at Barrackpore, North 24 Parganas. 11. The Learned First Appellate Court being the Court of Additional Session Judge, Fast Track Court – IV, Barrackpore, North 24 Parganas by its judgment and order dated 29th July, 2019 was pleased to allow the Criminal Appeal being Crl. Appeal No. 06/2018 (Re. Subir Bhattacharjee Vs. Kamal Ghosh and Another) holding that the said Appeal has good merit and further pleased to set aside the conviction and sentence given by the Learned Judicial Magistrate, 5th court, Barrackpore, North 24 Parganas, being the Trial Court, on 30th December, 2017 in Complaint Case No. 253/2013. 12. Hence the revision. 13. The petitioner/complainant has relied upon the following rulings:- i. Bhim Singh vs Kan Singh, 2004 CRILJ 4306, decided on 25 November, 2003, The Rajasthan High Court held:- “7. It is an established proposition of law that court of justice must possess inherent powers, apart from the express provisions of law, which are necessary to their existence and the proper discharge of duties imposed upon them by law. The Criminal Procedure Code or for the matter of that no procedural law is ever exhaustive and in cases where circumstances required it, the courts have acted on the assumption that they possess inherent powers (as of right) to do justice for which they really exist. At the same time it must be remembered that a court has no inherent power to do that which is prohibited by the Code, In this view of the matter every court whether civil or criminal in the absence of any express provision to the contrary, shall be deemed to possess as inherent in its very constitution, all such powers as are necessary in the course of the administration of justice. The rule of inherent powers has its source in a latin maxim "Guado lex aliquid alicui concedit, concodere videtur id sine quo ipsa esse non potest", which means that when law gives anything to anyone, it gives also all those thing without which the thing itself could not exist. 8. The Courts exist for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand. Even though inherent power saved under Section 482 Cr.P.C. is only in favour of High Courts, the subordinate criminal courts are also not powerless to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provisions provided there is no prohibition and no illegality or miscarriage of justice is involved. Thus, this Court is of the view that all the criminal courts are having such an auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else.” ii. Rajesh Jain vs Ajay Singh, Criminal Appeal No. ………. Of 2023 (@ SLP (Crl.) No. 12802 of 2022), decided on October 09, 2023, the Supreme Court held:- “33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)].” 14. The Opposite Party No. 2 in his written notes of Argument has stated that:- i) The impugned cheque was forcibly taken from him by the petitioner. ii) The said cheque was never dishonoured. iii) The opposite party no.2 never received any demand notice. 15. The Opposite Party No. 2 in his written notes of Argument has stated that:- i) The impugned cheque was forcibly taken from him by the petitioner. ii) The said cheque was never dishonoured. iii) The opposite party no.2 never received any demand notice. 15. The Learned First Appellate Court vide order dated June 24, 2019 for the purpose of proper adjudication held that it was necessary to know whether on April 1, 2013, any cheque was deposited by the Petitioner therein to the Syndicate Bank, Barrackpore Branch, as it was alleged that on April 1, 2013, the Bank was closed for public transaction, and whether the Bank informed the Petitioner on April 2, 2013, about the closure of the account by stating “Account Closed”, in respect of one of the account of the Opposite Party No.2. 16. In view to dispel such truth the Learned First Appellant Court vide the said order dated June 24, 2019, invoked the provision under Section 391 of the Criminal Procedure Code and directed the Branch Manager, Syndicate Bank, Barrackpore Branch to inform about the position of the said cheque as was stated therein within July 4, 2019. 17. That the said Manager, Syndicate Bank, Barrackpore Branch, in compliance of the order dated June 24, 2019, passed by the Learned First Appellate Court, filed his affidavit dated July 2, 2019, along with a photocopy of the cheque deposit slip, and a photocopy of the Return Memo register, before the Learned First Appellate Court, on July 2, 2019. 18. That upon perusal of the said report dated July 2, 2019, filed by the Branch Manager, Syndicate Bank, Barrackpore Branch, the Learned First Appellate Court, passed the order and judgment dated July 29, 2019, wherein the Learned First Appellate Court, noted that the said cheque was deposited in the bank for presentment on March 29, 2013, and the same was booked for clearing on March 30, 2013, and the information regarding closure of the account of the Petitioner was informed to one Subhendu Ghosh on April 3, 2013, as per the records available with the bank. The Learned First Appellate Court also took note of the deposition of the PW4 wherein it was stated that the alleged cheque was deposited on April 3, 2013. On April 1, 2013 and March 31, 2013, the bank was open but customer service was stopped. The Learned First Appellate Court also took note of the deposition of the PW4 wherein it was stated that the alleged cheque was deposited on April 3, 2013. On April 1, 2013 and March 31, 2013, the bank was open but customer service was stopped. The Learned First Appellate Court further took note of the fact that the PW-4 in his cross examination clearly stated that the alleged cheque was presented on April 3, 2013, and not on April 1, 2013 and no remark was mentioned on April 2, 2013. 19. In view of the said documents, the Learned First Appellate court came to the conclusion that the Petitioner filed the complaint before the Learned trial Court after suppressing material facts and that the said Judgment and Order dated December 30, 2017, passed by the Learned trial Court was on the basis of false submission of the Petitioner, and therefore the said Judgment and Order dated December 30, 2017, passed by the Learned trial Court was set aside by the Learned First Appellate Court, vide order and judgment dated July 29, 2019. 20. From the materials on record, including the trial Court records and judgments on record, it appears that there is prima facie no evidence before the court to substantiate the claim of the opposite party/accused herein that the cheque had been forcibly taken away from him by the petitioner. 21. Thus the presumption that the cheque was issued by the opposite party in discharge of his debt and liability has not been successfully rebutted by him. The original cheque bears the stamp “Account Closed”. Ext-3 is the cheque returning memo dated 02.04.2013 and the cheque was dishonoured as the Account was closed. 22. The demand notice was sent at the address on record. On receipt of process through Court, the opposite party no.2/accused appeared before the Court and has contested the case upto the High Court. 23. In spite of the notice in this case being sent at the said address on record and intimation by the postal peon being given to the addressee, the letter was “Not Claimed”. 24. The demand notice was thus deemed to be duly served. 25. The Appellate Court invoked the provision of Section 391 of Cr.P.C. 26. 23. In spite of the notice in this case being sent at the said address on record and intimation by the postal peon being given to the addressee, the letter was “Not Claimed”. 24. The demand notice was thus deemed to be duly served. 25. The Appellate Court invoked the provision of Section 391 of Cr.P.C. 26. The following extract from the judgment under revision is relevant:- In compliance of the Court’s order, the Branch Manager, Syndicate Bank, Barrackpore Branch filed his report before this Court on 02.07.2019 and has categorically stated in the report that:- “With reference to Order No. 15 dated 24.06.2019, of the aforesaid case of your letter dated 26.06.2019, I, Shri Raju Oraon son of the late Munna Oraon at present Branch Manager of Syndicate Bank, Barrackpore Branch, most respectfully beg to state as follows:- i) The said cheque being No. 242559 amounting to Rs. 3,75,000/- dated 30.03.2013 was deposited by Dibyendu Ghosh in the account of Kamal Ghosh into our bank dated 29.03.2013 and said cheque was booked for clearing dated 30.03.2013 as per record available in our bank. ii) The information regarding closure of account being No. 021010200037633 was informed to Subhendu Ghosh dated 03.04.2013 as per record available in our bank.” 27. The Appellate Court on the said materials on record held as follows:- Criminal Appeal No. 06/2018 “…………… In view of the report submitted by the Branch Manager, Syndicate Bank, Barrackpore Branch on 02.07.2019, I think, the complainant Kamal Ghosh has filed the complaint before the court after suppressing of the material facts and the total judgment which has been given by the Ld. Lower Court on the basis of the false submission on behalf of the complainant. When the basis of the complainant is totally false, as such, the judgment is not sustainable in law. Not only that PW 4 Sri Nikhil Ghosh who is an bank employee of Syndicate Bank, Barrackpore Branch in his deposition on 01.07.2015 has categorically stated that - “there is a client in our Branch namely Kamal Ghosh. The alleged cheque was deposited in our branch on 03.04.2013. The said cheque was returned with an endorsement “account closed”. On 01.04.2013 and 31.07.2013 our bank was open but customer service was stopped”. In his cross examination, he has stated that – “the alleged cheque was presented in our branch on 03.04.2013 and not on 01.04.2013. The alleged cheque was deposited in our branch on 03.04.2013. The said cheque was returned with an endorsement “account closed”. On 01.04.2013 and 31.07.2013 our bank was open but customer service was stopped”. In his cross examination, he has stated that – “the alleged cheque was presented in our branch on 03.04.2013 and not on 01.04.2013. No remark was mentioned on 02.04.2013”. It is the cardinal principles of law that man may lie, documents never. After the above noted discussions, I think, there is no necessity to go to the merit of this case, when its basis is baseless, false and frivolous. Accordingly, the instant Criminal Appeal has a good merit. Hence, It is, ORDERED That the instant Criminal Appeal has a good merit and it is hereby allowed on contest without any order as to costs. The conviction and sentence given by the Ld. Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas on 30.12.2017 in Complaint Case No. 253/2013 (TR Case No. 359/2013) is hereby set aside. The Convict/Appellant is set at liberty and also discharge from his bail bonds………….. Sd/ Additional Sessions Judge, Fast Track Court-IV, Barrackpore, North 24 Parganas.” 28. It thus appears that the Appellate Court believed the oral evidence of P.W. 4 but the same is contradictory to the report submitted by the Branch Manager, Syndicate Bank, Barrackpore Branch on 02.07.2019. 29. The report clearly states that the impugned cheque was deposited on 29.03.2013 and was booked for clearing on 30.03.2013. 30. The information as to closure of account is dated 03.04.2013. 31. In Nepc Micon Limited and Others Vs Magma Leasing Limited, AIR 1999 SC 1952 , decided on 29th April, 1999, the Supreme Court held:- “…………….. Finally, the Court held that Section 138 of the Act gets attracted only when the cheque is dishonoured. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C. J.) or (by Maxwell) to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited. Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because the amount of money standing to the credit of that account is insufficient to honour the cheque as envisaged in Section 138 of the Act. In the result, the appeal is dismissed. However, there shall be no order as to costs.” 32. Section 146 N.I. Act, lays down:- “146. Bank’s slip prima facie evidence of certain facts.— The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.” 33. The cheque return memo clearly bears the date of dishonour as 02.04.2013. 34. The report as called for by the Court by invoking the provision under Section 319 Cr.P.C. clearly states that the cheque was deposited on 29.03.2013 and the Bank being closed for year ending on 31.03.2013 -01.04.2013. Thus, the cheque return memo dated 02.04.2013 creates no doubt, as the cheque was due for clearing on 30.03.2013 as per report of the Bank Manager and accordingly the fact of dishonor of the cheque has been duly proved. 35. In the present case the opposite party no. 2 has been convicted and sentenced to undergo simple imprisonment for four months and to pay Rs. 7,50,000/- as compensation, in default to suffer simple imprisonment for a period of four months, by the learned trial Court, but acquitted by the Appellate Court. 36. 35. In the present case the opposite party no. 2 has been convicted and sentenced to undergo simple imprisonment for four months and to pay Rs. 7,50,000/- as compensation, in default to suffer simple imprisonment for a period of four months, by the learned trial Court, but acquitted by the Appellate Court. 36. In view of the discussions/findings above the judgment and order under revision is not in accordance with law and is thus set aside. 37. The judgment of conviction by the trial Court is affirmed. 38. But the sentencing, by the trial Court is not in accordance with law. 39. Section 138 N.I. Act, lays down:- “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to [two] years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that ……………………………..” 40. In Krishan Gupta & Anr. Vs State of West Bengal & Anr., AIR 2007 (NOC) 2021 (CAL.), decided on 23rd March, 2007, the Court held:- “12. Last but not least, in the instant case I found the conviction of the appellant under Section 138 of the Negotiable Instruments Act being upheld in appeal and order of sentence of fine being set aside there is nothing except compensation in consequences of conviction. The conviction entails imposition of sentence unless imposition of sentence is kept in abeyance by operation of law. The Negotiable Instruments Act provides for sentence of imprisonment and sentence of fine. The compensation is not the part of any sentence neither it is a substitute of sentence but in addition thereto. The conviction entails imposition of sentence unless imposition of sentence is kept in abeyance by operation of law. The Negotiable Instruments Act provides for sentence of imprisonment and sentence of fine. The compensation is not the part of any sentence neither it is a substitute of sentence but in addition thereto. The provisions of Section 357(3) of the Code makes it abundantly clear that when Court imposes a sentence may order the accused person to pay by way of compensation such amount as may be specified, when fine does not form the part of the sentence. Therefore, no compensation can be awarded without being preceded by imposition of sentence and obviously not by imposition of sentence of fine. In the facts and circumstances of this case, I am of the view this case does not deserve to be dealt with under Section 360 of the Code of Criminal Procedure. While the order of conviction stands confirmed, the order of awarding compensation is set aside only on the ground that the same was not preceded by imposition of any sentence. The case is remanded back to the Trial Court to pass necessary order only on the question of sentence and compensation in accordance with law without being influenced by the fact of the amount of compensation was reduced by the Appellate Court, which was not only otherwise wholly unjustified, but has been set aside by this Court. The Trial Court is further directed to take into consideration the ratio of the decision of the case of Mongilal v. State of M.P. reported in 2004 SCC (Cri) 1058 : 2004 Cri LJ 880 and in the case of Biswajit Chowdhury v. S.S. Distributors reported in 2002 (3) CHN 682 .” 41. In Somnath Sarkar vs Utpal Basu Mallick & Anr., AIR 2014 SC 771 , decided on 7 October, 2013, the Supreme Court held:- “………………… We say so having regard to a three- Judge Bench decision of this Court in Damodar S. Prabhu v. Syed Babalal H. (2010) 5 SCC 663 where this Court briefly examined the object sought to be achieved by the provisions of Section 138 and the purpose underlying the punishment provided therein. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment of money rather than to seek retribution. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment of money rather than to seek retribution. The Court said: “17....Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.” (emphasis supplied) This Court also took note of the number of cases involving dishonor of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonor of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended to ensure quick recovery of the amount payable under the instrument. The following passages from the decision are in this regard apposite: “4...It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may extent to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions. 5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system.” (emphasis supplied) 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. 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. 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. 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. 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 Brother’s 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. 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.” 42. In Tedhi Singh vs Narayan Dass Mahant, Criminal Appeal No. 362 of 2022 (arising out of SLP (Crl) No. 1963 of 2019), decided on 07th March, 2022, the Supreme Court held:- “12. However, we would think that in the totality of facts of this case the appellant has not established a case for interference with the finding of the Courts below that the offence under Section 138 N. I. Act stands committed by the appellant. We have been told that the amount of compensation in a sum of Rs.7 Lakhs which is relatable to the cheque amount has been deposited already in the Trial Court. However, we would think that the appellant should be granted relief in the form of substitution of the sentence of imprisonment of one year with a fine. An amount of Rs.5,000/-(Five thousand) commends itself to us as an amount which should suffice as substitution for the imprisonment. Apart from that, we would also direct that a further amount of Rs.15,000/- shall be paid as compensation to the respondent. 13. Accordingly, the appeal is partly allowed. While we uphold the conviction, we direct that sentence of imprisonment of one year shall stand vacated. However, the appellant shall stand sentenced to fine of Rs.5,000/- which he will deposit within a period of one month from today in the Trial Court. In case of default, the appellant shall undergo simple imprisonment for a period of one month. The appellant shall also deposit a sum of Rs.15,000/- as further compensation which can be withdrawn by the respondent. The deposit shall be made in the Trial Court within a period of four weeks from today. The appeal is partly allowed as above. Pending application(s), if any, stands disposed of.” 43. Accordingly, the judgment and order dated 29.07.2019 passed by the learned Additional District Judge, Fast Track Court-IV, Barrackpore, North 24 Parganas, in Criminal Appeal No. 06/2018 is hereby set aside. 44. The appeal is partly allowed as above. Pending application(s), if any, stands disposed of.” 43. Accordingly, the judgment and order dated 29.07.2019 passed by the learned Additional District Judge, Fast Track Court-IV, Barrackpore, North 24 Parganas, in Criminal Appeal No. 06/2018 is hereby set aside. 44. The judgment and order of conviction and sentence dated 30.12.2017 passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas in complaint case no. 253 of 2013, convicting the opposite party no. 2, to undergo simple imprisonment for four months and to pay Rs. 7,50,000/- to the complainant as compensation within one month, in default to suffer simple imprisonment for a period of four months, is hereby modified to the following extent and affirmed:- The sentence as to suffer S.I. for 4 months is set aside. The word ‘compensation’ is substituted with the word ‘fine’. Rest of the judgment and order dated 30.12.2017 passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24 Parganas, in complaint case no. 253 of 2013, remains unchanged and is also affirmed. 45. The opposite party no. 2/convict is directed to pay the compensation amount within 30 days from the date of this order, failing which trial Court shall proceed in accordance with law. 46. CRR 421 of 2020 is accordingly disposed of. 47. Opposite party no. 2/convict’s bail bonds stand cancelled. 48. All connected applications, if any, stand disposed of. 49. Interim order, if any, stands vacated. 50. Copy of this judgment be sent to the learned Trial Court for necessary compliance. 51. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.