1 Cri-Appeal-408-&-409-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 408 OF 2011 WITH CRIMINAL APPEAL NO. 409 F 2011 Ashim Kumar Chakravarty, ) Age 68 years, residing at 54-A, Band ) Stand Building, Kane Road, Bandra (West), ) Mumbai 400 050. ).. Appellant (Orig. complainant) Versus 1. Gurdeep Singh Bawa ) Proprietor of M/s. Sajan ) Communications Centre, residing ) at 102, Parwati Sadan, Ahimsa Marg, ) 14-A Road, Khar (West), ) Mumbai 400 052. ) 2. The State of Maharashtra ) through Public Prosecutor, ) High Court, Mumbai. )..Respondents (No.1 orig. accused) Ms. Yasmin E.Tavaria, Advocate, for the appellant. Mr. K.H.Halai a/w. Ms. Priya Aggarwal, i/b. M/s. Halai & Co., Advocates for the respondent No.1. Mr. P.S.Hingorani, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 4th May, 2011. JUDGMENT : 1. Originally, these appeals were filed as Writ Petitions seeking 2 Cri-Appeal-408-&-409-11.sxw enhancement in the compensation under Section 138 of Negotiable Instruments Act, however, in view of the provisions of Section 378 read with Section 377 of Cr.P.C., the Writ Petitions were allowed to be converted into appeals. 2. These Appeals are filed by the complainant on the ground that the Sessions Court had reduced the amount of compensation without any valid reason and, therefore, the order of the Sessions Court is liable to be set aside and the order passed by the Magistrate should be restored. 3. To state in brief, according to the complainant, he had advanced an amount of Rs.2 lakh to the respondent No.1/accused by cheque dated 15.2.2005. The said cheque was encashed by the accused. For repayment of that amount, the accused had issued four cheques of Rs.50,000/- each in December, 2005. All those four cheques, on presentation were dishonoured by the drawee Bank for want of sufficient funds. Inspite of service of the statutory notice in respect of the said cheques, the accused failed to make payment within the stipulated period. Therefore, on the basis of two cheques of Rs.50,000/- each, the complainant filed Criminal Case No.519/SS/2006 under Sec. 138 of Negotiable Instruments Act and for remaining two cheques, he filed Criminal Case No.522/SS/2006. Both these cases were tried together by the learned Metropolitan Magistrate, 12th Court at 3 Cri-Appeal-408-&-409-11.sxw Bandra. The accused pleaded not guilty. He contended that he had given the said cheques as a security of rent or license fee for the premises taken on leave and license basis from the wife of the complainant. According to him, the wife of the complainant had also obtained the order for eviction and license fee at double the agreed rate. However, the accused did not examine himself before the trial Court. The accused pleaded for leniency in respect of the sentence. After hearing the parties, the learned Magistrate passed the common order of conviction and sentence in both the cases. The accused was convicted under Sec. 138 and was sentenced to undergo simple imprisonment till rising of the Court and he was directed to pay compensation of Rs.3 lakh to the complainant under Section 357(3) of Cr.P.C. In case of default to pay the compensation amount, he was to undergo simple imprisonment for a term of one year. 4. The order of conviction and sentence passed by the Magistrate was challenged by the accused by filing two Revision Application Nos. 457/2008 and 458/2008. The learned Additional Sessions Judge by two separate but similar judgments passed on 25.6.2009 maintained the conviction for the offence under Section 138 of Negotiable Instruments Act and sentence of imprisonment till rising of the Court. However, the learned Addl. Sessions Judge reduced the amount of compensation to Rs.1 lakh in each case and thus the accused was 4 Cri-Appeal-408-&-409-11.sxw required to pay only the cheque amount as compensation to the complainant. Being not satisfied with the same, the complainant has preferred these two Appeals. 5. The learned Counsel for the complainant/appellant vehemently contended that the accused had used the money for more than four years when the amount of Rs.2 lakh was repaid by depositing the same before the trial Court. The Courts below had practically not imposed any sentence of imprisonment because by common order in two cases, he was required to undergo simple imprisonment till rising of the Court. The learned Magistrate had directed to pay Rs.3 lakh inclusive of the cheque amount of Rs.2 lakh. It means the accused was required to pay compensation of Rs.1 lakh for withholding and using that amount of Rs.2 lakh for a period of more than four years. According to her, by reducing the amount of compensation, the learned Addl. Sessions Judge has practically refused to grant any compensation and required the accused to repay the cheque amount without anything more. 6. On the other hand, the learned Counsel for the accused/respondent vehemently contended that the Magistrate had not made any enquiry about the capacity of the accused to pay the compensation amount and had directed him to 5 Cri-Appeal-408-&-409-11.sxw pay Rs.3 lakh without any reason in the judgment and therefore the Sessions Court was justified in modifying that order. The learned Counsel for the accused relied upon Dilip S. Dahanukar v. Kotak Mahindra Co.Ltd. & Anr. 2007 Cri. L.J.2417. In para 39 of that Judgment, the Supreme Court had observed thus :- "39. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge." The learned Counsel further contended that in Sathyan Ayyappa Sathyan v. Yousu and Anr. 2007 Cri.L.J.2590, the Kerala High Court had held that valid 6 Cri-Appeal-408-&-409-11.sxw reasons have to be given for giving compensation and merely because Sec. 80 of the Negotiable Instruments Act provides that interest at the rate of 18% per annum can be awarded does not mean that in a criminal case under Sec. 138 also interest should be granted at the rate of 18%. In that case, the Kerala High Court had granted interest at the rate of 8% per annum as compensation over and above the cheque amount. 7. From the facts on record, it appears that the accused is a businessman. He was running business in the name and style of M/s. Sajan Communications Centre at Khar (West). From the record, it appears that he had also taken certain premises from the wife of the complainant on leave and license basis and license fee was Rs.20,000/- per month. Therefore, it is clear that the accused comes from a business community or doing business in a posh area of Khar (West). From the record, it appears that he had received amount of Rs.2 lakh from the complainant on 15.2.2005. He issues the cheques for refund of that money in December 2005. He failed to make repayment of the money inspite of service of notice after the cheque was dishonoured. The complaints were filed in 2006 and were decided on 24.3.2008. Till decision of the trial Court, he had not repaid a single rupee. It appears that after he filed the revision applications challenging the conviction and sentence as a condition for stay to the execution of sentence as per the orders 7 Cri-Appeal-408-&-409-11.sxw passed by the Sessions Court, he deposited Rs.75,000/- on 4.6.2008. Even that amount was not paid to the complainant. He deposited balance amount of Rs.1.25 lakh on 25.6.2009 and shortly after that the complainant was allowed to withdraw whole of the amount of Rs.2 lakh. Thus, the complainant was deprived of the use of that money for a period of more than four years and at least for a period of 3½ years after the cheques were issued by the accused, the amount was not paid. Even the Bank would not advance loan for business or commercial purposes at a rate less than 12% per annum. There can be no valid reason not to require the accused to pay any interest or compensation over and above the cheque amount. He had used that money for such a long period. Taking into consideration the total period for which the amount was with the accused and during which the complainant was deprived of that use, even if simple interest is taken at 12%, the compensation may be about 50% of the cheque amount. The trial Court had in fact awarded compensation at the rate of 50% over and above the cheque amount. Taking into consideration these circumstances, I find that the learned Addl. Sessions Judge committed serious error in modifying the order of compensation and reducing the same to the cheque amount only. 8. For the aforesaid reasons, both the Appeals are allowed. The orders passed by the Sessions Court in Revision Applications reducing the amount of 8 Cri-Appeal-408-&-409-11.sxw compensation are hereby set aside and the accused is directed to pay Rs. 1,50,000/- as compensation and in default to pay the amount to undergo simple imprisonment for three months in each case. 9. As the accused has already paid the amount of Rs.2 lakh by depositing the same and that amount has been withdrawn by the complainant, now the accused/respondent shall deposit the balance amount of Rs.50,000/- in each case, total being Rs.1 lakh within 8 weeks from this day. The amount may be deposited before the trial Court. If the amount is deposited, the complainant shall be allowed to withdraw the same. Both the Appeals stand disposed of accordingly. (J.H.BHATIA,J.)