Crl.R.No.2211of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.2211of 2004 (O&M) Date of Decision: August 24, 2010 Surinder Dhiran son of Shri Khem Chand, Sole Proprietor of M/s Surender Dhiran and Company Govt. Contractor and Suppliers, Panna Mamurpur, Narela Delhi. .....Petitioner v. 1.The State of Haryana and 2.Tika Ram son of late Shri Sishpal Singh, resident of Village Kundli Teh. & Distt. Sonepat (HR). .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rahul Vats, Advocate for the petitioner. Mr.P.M.Anand, Addl. Advocate General, Haryana. Mr.H.N.Mehtani, Advocate with Mr.O.P.Kashyap, Advocate for respondent no.2. ...... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as `Cr.P.C.') against judgment dated 25.10.2004 passed by the then learned Additional Sessions Judge, Sonepat, vide which appeal against judgment/order dated 28.10.2003 passed by the then Additional Chief Judicial Magistrate, Sonepat, vide which revision petitioner was convicted for offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter to be called as the `Act') and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.5000/- and in Crl.R.No.2211of 2004 (O&M) -2- default of payment of fine to further undergo simple imprisonment for one month and he was also directed to pay Rs.2,20,000/- as compensation to the complainant under Section 357 Cr.P.C. and in case of non-payment of compensation to undergo simple imprisonment for a period of three months, was dismissed. Brief factual matrix of the case are as under: Petitioner-accused borrowed a sum of Rs.2,20,000/- from the complainant between October 1995 and 2.1.1996 and in discharge of the said liability issued a cheque for Rs.2,20,000/- in favour of the complainant on 15.6.1996. Complainant was maintaining an account at UCO Bank Branch at Kundli. The cheque was duly presented to the bank by the complainant on 29.8.1996. However, the same was returned with the remarks `refer to the drawer'. A notice was served by the complainant upon the accused within the statutory period directing him to make the payment within 15 days of the receipt of the notice. However, the payment was not made and hence, this complaint. After preliminary evidence, learned Magistrate summoned the accused for offence under Section 138 of the Act. Evidence of the complainant was recorded. Statement of accused in terms of Section 313 Cr.P.C. was also recorded by the Magistrate, in which he admitted having borrowed a sum of Rs.2,20,000/- from the complainant. He has also admitted that he had issued cheque No.317302 dated 15.6.1996 for Rs.2,20,000/- in favour of the complainant. He has also admitted having received the notice within a statutory period, however, he has taken the plea that he had already paid Rs.1,75,000/- to the complainant and however, he had issued receipt for only Rs.45,000/- and did not return the cheque. However, he did not plead any evidence in his defence. Learned trial Court after holding that there was an existing liability of the accused for which cheque was issued which was dishonoured and however, the amount was not paid despite the notice, convicted and sentenced the accused, as aforementioned. Appeal filed by the present petitioner against the judgment passed by learned trial Court was also dismissed by learned Appellate Crl.R.No.2211of 2004 (O&M) -3- Court. I have heard learned counsel for the revision-petitioner and respondent-complainant and have gone through the whole record carefully. It is settled principle of law that in its revisional jurisdiction, this Court is not to reappreciate and reappraise the evidence until and unless, it comes to the conclusion that the findings recorded by the trial Court are perverse, illegal and erroneous on account of misreading of evidence. In the present case, complainant has been able to prove all the ingredients of the offence under Section 138 of the Act, i.e., drawing of the cheque, presentation of the cheque to the bank, returning the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount within stipulated period, and failure of the drawer to make payment within 15 days of the receipt of the notice. Complainant has also been able to prove that the cheque was issued by the accused to discharge his legal enforceable liability. All these facts have not been denied by the petitioner-accused in his statement under Section 313 Cr.P.C. Hence, both the courts below, while relying upon cogent and convincing evidence of complainant, when he appeared as PW1, a Clerk from UCO Bank, Kundli Branch, who appeared as CW2, and on the basis of documentary evidence placed on record, were right in coming to the conclusion that the prosecution had proved its case against the accused beyond any reasonable shadow of doubt. No evidence in defence has been adduced by the accused. Moreover, so far as judgment of conviction passed by both the Courts below are concerned, the same have not been challenged by learned counsel for the petitioner-accused at the time of arguments. Hence, so far as judgment of conviction passed against petitioner-accused for offence under Section 138 of the Act by the Courts below is concerned, the same is hereby confirmed. Learned counsel for the petitioner-accused has however, challenged the order of sentence passed by learned trial Court and as confirmed by learned Appellate Court. It has been contended that the order of sentence cannot be sustained in the eyes of law, as when learned trial Crl.R.No.2211of 2004 (O&M) -4- Court has imposed sentence of imprisonment as well as sentence of fine upon the present petitioner-accused for offence under Section 138 of the Act, learned trial Court could not possibly direct the petitioner to pay compensation of Rs.2,20,000/- under Section 357 Cr.P.C. On this point he has placed reliance upon a judgment rendered by Hon'ble Karnataka High Court in S.Manjunath v. L.Suresh 2001(3) RCR (Criminal) 350 and another judgment rendered by Hon'ble Madras High Court in Suganthi Suresh Kumar v. Jagdaeesan 2001(3) RCR (Criminal) 87. It is further contended that moreover petitioner-accused has been facing trial in this case since 1997, i.e. for the last about 13 years. It is further contended that he has already undergone about four months of the sentence during investigation, trial, during pendency of appeal and revision in this Court and that hence, the sentence be reduced to the period already undergone by the petitioner. On the other hand, it has been argued by learned counsel for the complainant-respondent that awarding of compensation under Section 357 (3) Cr.P.C. for offence under Section 138 of the Act is not ancillary to other sentences and that rather it is in addition thereto and hence, it is contended that learned trial Court has rightly imposed fine as well as awarded compensation to the respondent-complainant. It is also contended that learned trial Court was also justified in ordering to undergo imprisonment of three months to the petitioner-accused in default of making payment of the said compensation. It is also contended that awarded compensation cannot be said to be unreasonable one as the cheque was issued in the year 1996 and only Rs.45,000/- were paid during pendency of the present complaint by the petitioner-accused. It is pertinent to reproduce Section 357 Cr.P.C., which reads as under: “357. Order to pay compensation. (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied- (a) In defraying the expenses properly incurred in the prosecution; Crl.R.No.2211of 2004 (O&M) -5- (b) In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion, of the court, recoverable by such person in a Civil Court; (c) When, any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) When any person is convicted of any offence which includes theft, criminal, misappropriation, criminal breach of trust or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal his elapsed, or if an, appeal be presented, before the decision of the appeal. (3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section.” Under Section 138 of the Act, maximum punishment prescribed is for a term, which may extend to two years or with fine, which may extend to twice the amount of cheque, or with both. However, Judicial Magistrate Ist Class cannot impose fine beyond Rs.5000/- being limitation prescribed in Section 29(2) Cr.P.C., which reads as under:- “29.(1) XX XX XX Crl.R.No.2211of 2004 (O&M) -6- (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.” Hence, though it has been prescribed under Section 138 of the Act that fine may extend to twice the amount of the cheque, however, in view of the limitation prescribed under Section 29(2) Cr.P.C., learned trial Court could not pass sentence of fine of more than Rs.5000/-. However, the law is well settled that in such a situation the Magistrate can alleviate the grievance of complainant by making resort to Section 357(3) Cr.P.C. Hon'ble Apex Court in Hari Kishan v. Sukhbir Singh and ors., 1988(2) RCR (Criminal) 394 : (AIR 1988 SC 2127) has emphasized the need for making liberal use of the said provision. It has been observed that Section 357(3) Cr.P.C. is an important provision enacted with an object to provide compensation to the victims and however Courts have seldom invoked it. It has been observed that this power of the Court is not ancillary to other sentences but it is in addition thereto. This power has been given with an object to do something to reassure the victim that he or she is not forgotten in the criminal justice system. Under this Section, the criminal Court can award unlimited compensation to the victims. Hon'ble Apex Court in the case of Suganthi Suresh Kumar v. Jagdeeshan 2002(1) RCR (Criminal) 502: (2002) 2 SCC 420, observed that the Magistrate should award proper sentence to the accused as to give proper effect to the object of the legislation under Section 138 of the Act and no drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. It has been observed that very object of enactment of provision like Section 138 of the Act, would stand defeated if flea bite sentence is imposed by the trial Magistrate. It is further observed that in such a situation the Magistrate under Section 357 Cr.P.C. can alleviate the grievance of the complainant by awarding the suitable compensation. In a recent judgment rendered in K.A.Abbas H.S.A. v. Sabu Joseph and another 2010(3) RCR (Criminal)154, Hon'ble Apex Court while discussing Hari Singh's case (supra) and Suganthi Suresh Kumar's Crl.R.No.2211of 2004 (O&M) -7- case (supra) and all other previous judgments on the point rendered by Hon'ble Apex Court observed in para 27 as under: “27. From the above line of cases, it becomes very clear that, a sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357(3) of Cr.P.C. The whole purpose of the provision is to accommodate the interest of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence, on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated.” It has also been held by Hon'ble Apex Court that imprisonment in default of making payment of compensation can also be imposed by learned trial Court for offence under Section 138 of the Act by making the following observations: “29. Section 431 clearly provides that an order of compensation under Section 357(3) will be recoverable in the same way as if it were a fine. Section 421 further provides the mode of recovery of a fine and the Section clearly provides that a person can be imprisoned for non-payment of fine. Crl.R.No.2211of 2004 (O&M) -8- Therefore, going by the provisions of the code, the intention of the legislature is clearly to ensure that mode of recovery of a fine and compensation is on the same footing. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under Section 357(3) should fall. So far as argument of learned counsel for the revision-petitioner that compensation under Section 357(3) Cr.P.C. can be awarded by learned trial Court only if the fine is not part of the sentence, is concerned, there is no dispute regarding the said statutory provision, as reproduced above. However, in the similar circumstances Hon'ble Apex Court in Pankajbhai Nagjibhai Patel v. State of Gujarat 2001(1) RCR (Criminal) 343, while retaining the sentence of imprisonment for six months, deleted the fine portion from the sentence and directed the appellant to pay compensation of Rs.83,000/- to the respondent-complainant. Their Lordships ordered as follows:- “19. In the result, while retaining the sentence of imprisonment of six months we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs.83,000/- to the respondent-complainant. The said amount shall be deposited with the trial Court within six months failing which the trial court shall resort to the steps permitted bylaw to realise it from the appellant.” In Suganthi Suresh Kumar's case (supra) Hon' ble Madras High Court could not grant compensation to the complainant as no compensation was awarded by learned trial Court and hence, it was observed that revisional Court could not delete the sentence of fine in a revision for enhancement of sentence just to award compensation under Section 357(3) Cr.P.C. However, in the present case learned trial Court has already awarded compensation and the sentence in default of making payment of compensation in favour of respondent-complainant. A Coordinate Bench of this Court in the case of Ajay Bansal v. Smt.Nirmal Jain 2006(1) RCR (Criminal) 849, while placing reliance upon Crl.R.No.2211of 2004 (O&M) -9- Hari Kishan's case (supra), Suganthi Suresh Kumar's case (supra) and K.Bhaskaran v. Sankaran-Vaidhyan Balan and another, 1999 (4) RCR (Criminal) 309, modified the order of sentence and awarded compensation to the complainant-petitioner under Section 357(3) Cr.P.C. Another Coordinate Bench of this Court in M/s.Capital Leasing and Finance Co. v. Navrattan Jain 2005(4) RCR (Criminal) 330, in an appeal against judgment of acquittal passed by learned Magistrate for offence under Section 138 of the Act, while setting aside the judgment of acquittal and while convicting the respondent-accused for offence under Section 138 of the Act and while considering K.Bhaskaran's case (supra), Hari Singh's case (supra) and Pankajbai Nagjibhai Patel's case (supra) sentenced the accused to pay fine of Rs.5000/- and in default of payment of fine to undergo imprisonment for six months and to pay the appellant a sum of Rs.1.00 lac as amount of compensation being the amount of cheque. However, taking into consideration all the facts and circumstances of the case, as discussed above, and the law on the point settled by Hon'ble Apex Court and taking into consideration the provisions of Section 357(3) Cr.P.C., there is force in the argument of learned counsel for the revision-petitioner that learned trial Court could not impose fine as a part of sentence and at the same time could not award compensation under Section 357(3) Cr.P.C. There is also force in the argument of learned counsel for the revision-petitioner that taking into consideration the fact that the petitioner has been facing trial for the last about 13 years, and has already undergone four months of the sentence, no purpose would be served for directing him to undergo remaining portion of the sentence. Moreover learned counsel for the complainant-respondent has not opposed the argument of learned counsel for the revision-petitioner so far as reduction of substantive sentence imposed upon petitioner-accused is concerned. He has argued that respondent-complainant, however, is concerned with the recovery of amount of compensation of Rs.2,20,000/-, as imposed by learned trial Court. Hence, in view of these facts, the present revision petition is partly accepted and while maintaining the judgment of conviction, the order Crl.R.No.2211of 2004 (O&M) -10- of sentence is modified to the extent that the revision petitioner is sentenced to undergo imprisonment already undergone by him during investigation, trial, during pendency of appeal and revision. However, the amount of fine of Rs.5000/-, as imposed by learned trial Court is set aside, while maintaining the amount of compensation of Rs.2,20,000/-, as awarded by learned trial Court under Section 357(3) Cr.P.C. and in default of payment of compensation to undergo simple imprisonment for three months. The amount of fine, if already paid, is also ordered to be adjusted in the amount of compensation of Rs.2,20,000/-, awarded under Section 357(3) Cr.P.C. by learned trial Court. Disposed of accordingly. 24.8.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.