1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 88 OF 2009. 1. Shri Raju Suresh Mulgaonkar, s/o. Suresh Mulgaonkar, major of age, married, Indian National, resident of H.No.343, Behind Vetal Temple, Shiroda Wadi, Mulgaon-Goa. Presently undergoing imprison- -ment in Jail at Sada, Vasco through next best friend Mr. Suresh Kashinath Mulgaonkar Aged 57 years, married, Indian National, resident of H.No.343, Behind Vetal Temple, Shiroda Wadi, Mulgaon-Goa. .. Petitioner Versus 1. Bicholim Urban Co-op. Bank Ltd. A Co-operative Society Registered with the Registrar of Co-operative Societies and having its Central Office at “Nandanvan” Bicholim-Goa represented by its Manager (recovery Cell) Shri V. G. Prabhudessai, residing at Kamat Nagar, Ashwini Apartments, Porvorim -Goa. 2. State of Goa Through Public Prosecutor .. Respondents. Mr. Shivan Dessai, Advocate for the petitioner. Mr. R. G. Ramani, Advocate for the respondent No.1. Mr. C. A. Ferreira, Public Prosecutor for the respondent No.2. 2 CORAM :- U. D. SALVI, J. DATE :- 25 th November, 2009. ORAL JUDGMENT : Rule, made returnable forthwith. Respondent waives notice. Taken up for final hearing by mutual consent of the parties. 2. Article 227 of the Constitution has been invoked to quash the order dated 27.10.2009 passed by the learned J.M.F.C., Bicholim, Goa in Criminal Case No.281/OA/- -138/2005/A. 3. The petitioner was acquitted of the offence punishable under Section 138 of N.I. Act,1881 in the said criminal case. The respondent No.1 complainant preferred Criminal Appeal No.34/2008 against the said order of acquittal before this Court. The appeal was allowed with the following order : 13. Shri Ramani, learned Counsel has submitted that the complainant would be happy in case a sum of Rs.70,000/- is paid by the accused by way of compensation without imposing any fine or sentence of imprisonment. Learned Counsel appearing on behalf of the accused has also not objection. 14. In view of the above concession made, the 3 accused is hereby directed to pay to the complainant a sum of Rs.70,000/- by way of compensation under Section 138 of the said Act, and in default to undergo six months S.I. By consent, the accused is given time to pay the said compensation within a period of four weeks. In case it is not paid, the learned trial Court is directed to execute the sentence. 4. The amount of compensation ordered was not paid by the petitioner as required. Consequently, the petitioner was imprisoned in terms of the aforesaid order. Later on, the compensation was paid on 14.10.2009. On 15.10.2009, Criminal Writ Petition No.70/2009 seeking compounding the offence under Section 138 of N. I. Act as per the terms of settlement drawn between the petitioner and the respondent No.1 Bank was moved. Having realised that the compounding of the offence was not possible after recording of the conviction of the petitioner in the Criminal Appeal No.34/2008, the petitioner withdrew the said petition with a liberty to move the trial Court for appropriate order in the said matter. Criminal Writ Petition No.70/2009 was allowed to be withdrawn accordingly vide order dated 16.10.2009. 4 5. Following withdrawal of the said writ petition, the petitioner accused moved an application in the aforesaid criminal case for suspension of the sentence. He pleaded that suspension of the sentence ought to follow following the payment of the compensation to the respondent herein. The learned J.M.F.C. rejected the said application on the premise that he was not competent to condone the delay in payment of compensation, which was required by this Court to be paid within four weeks as per the order in Criminal Appeal No.34/2008. This order of rejection of the said application is now being assailed in the present petition. One of the pertinent ground assailing the said order is that the learned J.M.F.C. failed to appreciate that the sentence of imprisonment was in default of non-payment of compensation and upon payment, the sentence of imprisonment in terms of the judgment and order dated 31.07.2009 in Criminal Appeal No.34/2008 ought to terminate. 6. Learned Advocate Shivan Dessai submitted that one should look to the 'in-default sentence' not as a substantive sentence, but the sentence imposed for effecting the recovery of the compensation of that fine and as such on payment of compensation, the sentence ought to terminate 5 being fully executed. Citing judgment of the Apex Court reported in (2009)6 SCC 652 Vijayan Versus Sadanand K and another, he further submitted that provision for grant of compensation under Section 357(3) of Cr.P.C. and the recovery thereof makes it necessary for the imposition of a default sentence and provision 357(3) and 431 of Cr.P.C. read with Section 64 of I.P.C. empower the Court while making the order of payment of compensation to also include default sentence in case of non-payment of the same. In substance, the amount of compensation is a money ordered to be paid and is recoverable as a fine. Another judgment of the Apex Court reported in (2007)11 SCC 243 Shantilal Versus State of M.P. further brings clarity to the view on the nature of the term of imprisonment in default of payment of fine. Term of imprisonment in default of payment of fine, it clarifies is not a sentence, but a penalty which a person incurs on account of non-payment of fine. It further clarifies that the sentence is something which the offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or any other appropriate judicial proceedings or “otherwise”. Considering these views of the Hon'ble Apex Court, the order passed in Criminal Appeal No.34/2008 can only be regarded as an order 6 requiring the complainant to pay the compensation without there being any substantive sentence. It sounds rather strange that there is no substantive sentence passed as required under Section 138 of N.I.Act, but this situation cannot be helped at this stage except interpreting the said order for recording its execution. 7. Learned Advocate for the petitioner rightly pointed out that even after the payment of compensation, if the petitioner is made to suffer six months' S.I. stipulated as a sentence in default, the petitioner would be doubly punished. Such situation is not what is anticipated in the order passed in Criminal Appeal No.34/2008 by this Court. However, from the reading of the application moved before the learned J.M.F.C., it is revealed that the prayer made before the learned J.M.F.C. was not happily worded. The impugned order also does not reveal that the submissions made now before this Court were made before the learned J.M.F.C. The learned J.M.F.C. was, therefore, not in error while passing the impugned order in such circumstances. 8. To do substantial justice in this matter, the 7 learned J.M.F.C. is directed to consider any such application moved by the petitioner for recording execution of the order dated 31.07.2009 in Criminal Appeal No.34/2008 in accordance with the provisions of law. Rule is discharged with no order as to costs. U. D. SALVI, J. SMA