JUDGMENT [ENTITY], J.
1. This revision petition is directed against the judgment dated 16.8.1999 passed by the learned Sessions Judge, Shimla in [CASE NUMBER] whereby the said appeal against the judgment dated 16.3. i998 passed by the learned Judicial Magistrate (3), Shimla convicting and sentencing the accused/petitioner (hereinafter referred to as 'the accused') under [SECTION] of the [ACT] (hereinafter referred to as 'the Act') has been dismissed.
2. Brief facts leading to the presentation of this petition are that the respondent/ complainant (hereinafter referred to as 'the complainant') filed complaint against the accused under [SECTION] of the Act on the allegations that the accused issued acheque Ext. P-l dated 28.10.1993 for Rs. 8,600/- in favour of the complainant for valuable consideration. The cheque was drawn on Indian Bank Shimla Branch. The cheque was handed over by the complainant through the Punjab National Bank Shimla Branch within the period of validity but was dishonoured because of the failure on the part of the accused to arrange sufficient funds for clearance of the cheque and in issuing such a cheque the accused had the intention to deceive the complaint. On receipt of the dishonoured cheque vide memo dated 3.11.1993, the complainant issued notice to the accused within 15 days thereof calling upon the accused to pay the amount of the cheque along with other charges to him within 15 days from the receipt of the notice. The accused, however, despite receipt of the notice did not pay the amount of the cheque to the complainant within the stipulated period. Hence the complaint.
3. Accusations under [SECTION] of the Act were put to the accused who pleaded not guilty. To prove the accusations against the accused the complainant, in addition to his own statement as PW-1, examined PW-2 [ENTITY], Assistant Manager, Indian Bank and (PW-3) [ENTITY], Clerk of the Punjab National Bank.
4. Statement of the accused was recorded under [SECTION] of the [ACT] wherein he admitted having issued the cheque Ext. P-1 for consideration and also admitted receipt of demand notice Ext. P-3 from the complainant. However, his case is that he sent two demand drafts of Rs. 6000/- and Rs. 2600/- and thus denied having incurred any criminal liability. The accused, however, did not lead any defence evidence.
5. On consideration of the material on record, the learned trial Magistrate convicted the accused under [SECTION] of the Act and sentenced him to fine of Rs. 17,200/- and in default of payment of fine to undergo simple imprisonment for one month. It was further ordered that out of the fine imposed, if recovered, a sum of Rs. 10,000/- be paid to the complaint.
6. Being aggrieved, the accused preferred an appeal which was heard and dismissed by the learned Sessions Judge, Shimla by the impugned judgment. Hence this petition.
7. I have heard the learned Counsel for the petitioner and the complainant in person and have also gone through the records.
8. As per the contents of the revision petition, the impugned judgment has been assailed on the following grounds:
(i) That the Courts below have misconstrued the evidence on record;
(ii) That the Courts below have failed to take into account the fact that two pay orders in the sum totalling Rs. 8.600/- were despatched under Registered A.D. Post to the complainant which the complainant purposely evaded to receive and returned the same to the accused as unpaid;
(iii) That the prayer of the accused to examine the Counsel for the complainant as a witness was turned down by the Trial Court thereby prejudicing the accused in his defence; and
(iv) that the demand notice was not regarding the amount of cheque but raised demands for payment of a different amount.
Ground No. (i)
9. It may be pointed out at the very outset that revisional powers of the High Court are discretionary and are to be exercised sparingly to set flagrant miscarriage of justice right. The High Court in exercise of its revisional jurisdiction will not interfere with the order of a subordinate Court simply because on the basis of the evidence on record a different view is possible.
10. In [PRECEDENT], this Court, while dealing with the scope of revisional powers of the High Court held as under:
"9. The accused have been held guilty of the offence punishable, under [SECTION] of the [ACT] by the Trial Court and under [SECTION] read with [SECTION] of the [ACT] by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation, this Court has to necessarily examine the matter keeping in view the well-settled proposition of law that though the revisional powers of this Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Courts are not to be disturbed."
11. Similarly, in [PRECEDENT]; this Court had held as under :
"6. It may be pointed out at the very outset that the revisional power of the High Court though very wide is purely discretionary to be exercised fairly according to the exigencies of each case. It is well settled that such power is normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there had been a flagrant miscarriage of justice. It is to be exercised only for correcting injustice and not mere illegality. Revisional Court, thus, is not expected to act as a Court of appeal and the jurisdiction is not to be ordinarily invoked or used merely because the Lower Court(s) have taken a wrong view of the law or mis-appreciated the evidence on record. The Revisional Court would not interfere with the order of the Lower Court unless it is shown to be perverse or without evidence or not tenable in law or simply because other view is possible (see [PRECEDENT], [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
12. This ground, therefore, has to be examined in view of the above settled position in law.
13. It was contended by the learned Counsel for the petitioner that the evidence led by the respondent to prove the cheque and dishonouring of the cheque being in the form of copies and having not been duly proved as per law is inadmissible and could not be relied upon. The contention, however, pales into insignificance in view of the admission of the accused. It is admitted by the accused in his statement under [SECTION] of the [ACT] that the cheque Ext. P-1 for Rs. 8600/- was issued by him to the complainant on account of rent as payable by him to the complainant. In view of the original memo Ext. P-2, it is proved that the cheque Ext. P-1 was dishonoured because of insufficient funds. It is also established in view of the evidence of the complainant and admission of the accused in his statement under [SECTION] of the [ACT] that the complainant served the accused with a notice demanding payment of the amount of the cheque which stood dishonoured along with cost of notice.
14. The controversy appears about the date of receipt of such notice by the accused and effect hereof on the filing of the complaint. The plea of the accused before the Lower Courts was that the complainant had not disclosed the date of receipt of notice by the accused either in the complainant or in the evidence and in the absence of proof of such date even cognizance could not have been taken by the Trial Court.
15. The lower Appellate Court has dealt with this plea in detail are rejected it on the premises that the complainant was filed more than 15 days after the delivery of notice under [SECTION] of the Act. In this regard, the Appellate Court in the impugned judgment observed as under:
"11. According to the accused, the drafts were sent through letter dated 24.11.1993, Ext. R-2. In this letter, the dates of the two drafts/pay orders are stated as 22.11.1993 and 23.11.1993, which facts suggests that the notice had been delivered to the accused on or before 22.11.1993. Thus, according to the accused's own showing the notice, under [SECTION] of the [ACT], had been delivered to him on or before 22.11.1993. The complaint was filed on 14.12.1993, per endorsement of presentation. In other words, the complaint was filed more than fifteen days after the delivery of notice, under [SECTION] of the [ACT]:"
16. There is nothing in the aforesaid observations based on material on record which may be treated as misreading or misappreciation of evidence and thereby arriving at an unreasonable much less perverse conclusion. Thus, the finding that the complaint had been lodged after expiry of 15 days from the date of delivery of the notice, is a finding of fact and is based on appreciation of the supporting material on record, therefore, in view of the settled position in law, it does not call for any interference by this Court.
Ground No. (ii)
17. It was contended by the learned Counsel for the accused that almost immediately after the receipt of the notice under [SECTION] of the Act, he despatched two demand drafts for Rs. 8600/- under registered A.D. Receipt of such drafts is denied by the respondent. Again, the question whether such drafts were sent and delivered to the complainant or not, is a question of fact and the concurrent findings of the Courts below are in the negative. A perusal of the records reveals that the conclusion arrived at by the Appellate Court on this count is not unreasonable in view of the evidence on record. Merely exhibiting the A.D. cover Ext. R-1 and letter Ext. R-2 in the statement of the complainant in which he has denied the presentation/receipt of these documents, does not prove by itself that the drafts/pay orders were despatched to the complainant in the said cover and under the said letter. Some evidence was required to be led to prove that Ext. R-1 was presented to the complainant and he refused to accept it and that two pay orders were, in fact, sent under letter Ext. R-2 to the complainant and the said pay order ever existed. However, no evidence has been led by the accused in this regard. Therefore, the concurrent findings of fact recorded by the Courts below on this Court calls for no interference by this Court.
Ground No. (iii)
18. It is basically incorrect that the accused wanted to examine the Counsel for the complainant as a witness in his defence. When the accused was questioned by the Trial Court under [SECTION] of the [ACT] whether he wanted to lead any defence evidence or not, the accused answered as follows :
"No except all the Counsel for the complainant should be examined as Court witnesses."
19. The above statement of the accused simply meant that he did not want to lead any defence. However, what he wanted, was that the Trial Court should examine the Counsel representing the complainant as Court witness. The accused himself had a right to lead defence and examine any one he liked. However, he did not choose that course but wanted the Court to examine the Counsel for the complainant as a Court witness. Neither the accused had a right to ask for examination of a witness as a Court witness nor it was obligatory from the Trial Court to allow such a request of the accused. Thus, it is not a case of denial of opportunity to the accused to lead his defence. Therefore, even on this count no interference in the impugned judgments is called for.
Ground No, (iv)
20. It was contended by the learned Counsel for the accused that demand notice Ext. PW-1/C is illegal inasmuch as the payment thereby demanded is not of the amount of cheque but additional demands had been raised therein. Therefore, the complaint on the basis of such a notice was not maintainable and deserved to be dismissed.
21. On the other hand, it was urged by the complainant that the respondent was called upon vide notice Ext. PW- 1/C to pay the sum of Rs. 8,600/- for which the cheque Ext. P-1 was issued and apart from this amount a sum of Rs. 150/- was separately demanded as charges of the notice, therefore, the demand notice having specifically and separately mentioned the amount of the cheque and other charges there is nothing illegal in the notice and the complaint could lawfully be instituted on default of payment by the accused within the provided period.
22. [SECTION] of the Act reads as under:
"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 one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation. For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
It is evident on a bare reading of the aforesaid provisions that the expression 'said amount of money' as used in Clauses (b) and (c) (supra) refers to the expression "payment of any amount of money" occurring in the main section which means the cheque amount. Therefore, Clauses (b) and (c) will apply to the cheque amount. It follows that the demand for payment by the notice in writing as contemplated under Clause (b) (supra) has to be made for payment of the amount of the cheque. Therefore, an omnibus demand made in the notice without specifying what was due under the dishonoured cheque will render the notice bad in law. However, the notice will not be bad and will not be vitiated if the amount due on the cheque is specifically and separately mentioned in the notice and has been demanded as such apart from other amounts on account of interest, charges of notice, etc. etc.
23. In [PRECEDENT] while dealing with a similar question Calcutta High Court held as under:
"6. Since the notice, in the case relied on by the learned Trial Court, did not specifically spells out as to what was the amount covered by the cheque which the accused was required to remit, it was held bad but in the present case the petitioner's notice clearly spell out the actual amount covered by cheque. The petitioner knew as to what was the principal amount which he was required to remit. The purpose of the notice is to intimate the drawer of the cheque about requiring him to remit the amount. These two purposes were well served by this notice. If any extra amount is claimed in the notice that would not vitiate the notice."
24. In [PRECEDENT] while dealing with a similar question, Karnataka High Court has held as under:
"6. Apart from the fact that this decision is one of persuasive value, it has to be noticed that interpretation of a notice of demand as the one contemplated under [SECTION] of the Act cannot be different from any other notice. If the notice conforms to the requirement of a notice under [SECTION] of the Act by disclosing the amount for which the cheque has been issued and dishonoured, in addition to claims such as the charges that are levied by the Bank for correspondence regarding the realisation of the cheque and notice charges, it cannot be said that the notice under [SECTION] of the Act, is vitiated especially when the respective claims are severable."
25. The decision of the Calcutta High Court in [PRECEDENT]'s case (supra) was challenged before the Hon'ble Supreme Court in [CASE NUMBER] titled [PRECEDENT] wherein the Apex Court held as under:
"7. There is no ambiguity or doubt in the language of [SECTION]. Reading the entire section as a whole and applying commonsense, from the words, as stated above, it' is clear that the Legislature intended that in notice under Clause (b) to the proviso, the demand has to be made for the cheque amount. According to Dr. [ENTITY], the notice of demand should not contain anything more or less than what is due under the cheque.
8. It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. cheque amount. If no such demand is made the notice no doubt fall short of its legal requirement. Where in addition to "said amount" there is also a claim by way of interest, cost, etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving up break up of the claim the cheque amount, interest, damages, etc. are separately specified, other such claims for interest, cost, etc., would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad."
26. It is evident on a reading of the notice Ext. PW- I/C that the amount of the cheque has been specifically mentioned vide Para-1 and has been specifically demanded vide Para-4 of the notice. No doubt, apart from the cheque amount of Rs. 8600/- an additional payment of Rs. 150/- as charges of the notice has been demanded but this additional demand will not invalidate or vitiate the notice for the purpose of the complaint for the simple reason that the liability of the accused to pay the amount of cheque is clearly staled therein. Therefore, the contention raised for the accused does not hold good.
27. It has, however, been noticed that the complaint was tried by a Judicial Magistrate I-Class who imposed a fine of Rs. 17,200/- on the accused which he had no jurisdiction to do.
28. In case [PRECEDENT], decided on 30.7.2002), this Court while dealing with a similar situation as in hand, held as under:
"9. It is evident from a bare reading of the provisions of [SECTION] (supra) that a Judicial Magistrate of the First Class, which the learned trial Magistrate admittedly is, can pass a sentence of fine not exceeding rupees five thousand. There is no special provision under the Act empower in a Judicial Magistrate of the First Class to impose a fine of more than Rs. 5,000/- under [SECTION] of the Act.
13. In view of the above settled position in law the learned trial Magistrate, being a Judicial Magistrate of the First Class, could not impose a fine of more than Rs. 5,000/- and by sentencing the accused to fine of Rs. 35,000/- he has acted illegally and beyond his jurisdiction."
29. In view of the above settled position in law, the Trail Court by imposing a fine of more than Rs. 5,000/- on the accused acted illegally and beyond its jurisdiction and this illegality deserves to be corrected.
30. It may, however, be pointed out that in a case as in hand where the complainant deserves to be monetarily compensated, the Magistrate has the power to award compensation under [SECTION] of the Code independently of the sentence awarded to the accused and such powers can be exercised even by the Appellate and Revisional Courts. In [PRECEDENT] 's case (supra), this Court, while dealing with the scope of [SECTION] of the Code, held as under:
"18. In view of the above settled position in law, a Judicial Magistrate has the powers to award compensation under [SECTION] of the Code independently of the sentence imposed on the accused. In view of the provisions of [SECTION] of the Code, an Appellate or Revisional Court can also exercise these powers."
31. The impugned judgment, thus, deserves to be corrected as per law stated herein-above.
32. As a result, while maintaining the impugned conviction, the fine imposed on the accused is reduced to Rs. 5,000/- and he is directed to pay compensation to the complainant in the sum of Rs. 10,000/-. The amount of fine as herein imposed and the amount of compensation as herein awarded shall be deposited by the accused in the Trial Court within one month of the date of this judgment, if not already deposited. The compensation in the sum of Rs. 10,000/- so deposited, shall be paid to the complainant. In case the fine and compensation hereinabove awarded, are not deposited within the specified time, the Trial Court shall resort to the steps permitted by law to realise the same.
33. This revision petition is disposed of in terms of the above order.