1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2904 OF 2009 Alka International ... Petitioner versus Vanguard Plast Pvt.Ltd.& ors ... Respondents ... Mr.Sandeep Velkar for petitioner Mr.Y.S.Shinde APP for the State. CORAM : D.G. KARNIK, J. DATED : 12th November 2009 P.C. 1. Heard. 2. By this writ petition, the petitioner challenges the order dated 2nd February 2008 passed by the Metropolitan Magistrate, 33rd Court, Bombay and the order of the learned Addl. Sessions Judge, Greater Mumbai dated 11th August 2009 confirming the order of the Metropolitan Magistrate. 3. The petitioner is the complainant. He filed complaint against respondents 1 to 3 for an offence punishable u/s.138 of the Negotiable 2 Instruments Act. By an order dated 2nd January 2008, learned Metropolitan Magistrate convicted and sentenced respondent nos.2 and 3 for a Simple Imprisonment till rising of the court and imposed a fine of Rs.2000/- and also directed payment of compensation of Rs. 7,38,851/-. The petitioners challenged the order in revision before the Sessions Court on the ground that the sentence was inadequate and compensation was meagre. The learned Sessions Judge while dismissing the revision took into consideration that the respondent nos. 2 and 3 had paid to the petitioner a sum of Rs.10,00,000/- and only a sum of Rs.7,38,851/- remained due. The Sessions Court held that the compensation of Rs.7,38,851/- which was equal to the balance amount due was adequate and reasonable. The learned Sessions Judge therefore dismissed the revision. 4. Relying upon a decision of Suganthi Suresh Kumar Vs. Jagdeeshan 2002(2) SCC 420, learned counsel for the petitioner submitted the the compensation awarded was grossly inadequate and the courts below ought to have awarded compensation taking into consideration the fact that the original claim was of Rs.17,38,851/- out of which only Rs.10,00,000/- were paid during the pendency of the trial In Suganthi Suresh Kumar (Supra), the Supreme Court was considering whether the sentence in default of payment of compensation can be imposed and held that the sentence in default of payment of compensation can also be imposed. In the present case, that is not the grievance of the petitioner but the grievance is that the amount of compensation is meagre. In Hari Singh Vs. Sukhbir Singh (1988) 4 SCC 551 which has also been referred to in Suganthi’s case, the Supreme Court has held that the quantum of compensation should 3 be determined by taking into account the nature of the crime, the justness of the claim by the victim and the ability of the accused to pay. Thus, various factors are required to be taken into consideration by the court while fixing the amount of compensation. The courts below have taken into consideration the fact that the accused had paid a sum of Rs. 10,00,000/- during the pendency of the trial. It cannot be said that the fact of payment of the amount during the pendency of the trial was an irrelevant circumstance which the Courts below have taken into consideration. The discretion exercised by the Sessions Court in determining the amount of compensation by taking into consideration the fact of payment of Rs.10,00,000/- made by accused during the course of the trial cannot be said to be in any way erroneous and arbitrary. In the absence of any arbitrariness, the discretion exercised by the two courts below does not call for interference in exercise of writ jurisdiction. 5. For these reasons, there is no merit in the writ petition which is hereby dismissed summarily. (D.G. KARNIK,J.)