TMI Blog2013 (10) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, we clarify that the Appellant must pay a sum of ₹ 80,000/- receivable by the complainant within four weeks from today, if not already paid. Process comprises two stages. First, when the Court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of ₹ 80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of ₹ 69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same. Viewed thus, the direction of the High Court that the appellant shall pay a further sum of ₹ 69,500/- does not appear to be legally sustainable - Decided partly against assessee. - Criminal Appeal No. 1651 of 2013 [Arising out of S.L.P. (Crl.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. It seems to us that since the Appellant has already faced prosecution in the Magistracy in which he presented virtually no defence, and has thereafter filed an appeal before the Sessions Court, and subsequently two Revisions before the High Court, the ends of justice will be met, were he be directed to pay a sum of Rs.20,000/- only, in default, of which he would be liable to undergo the punishment of simple imprisonment for a term of six months as imposed by the aforementioned Magistrate. The said payment should be made within eight weeks. 4. As already expressed, the language employed by the High Court in the impugned order raises a doubt as to the total liability of the Appellant. A perusal of the sentence passed by the Trial Court as well as the Sessions Judge while dismissing the Appeal also does not completely clarify the position. The cheque amount is Rs.69,500/- and in this regard a sum of Rs.80,000/- has been directed towards compensation which, by virtue of Section 357(3), Code of Criminal Procedure (Cr.P.C.) would be receivable by the complainant. It appears that this sum of Rs.80,000/- has been received by the complainant. The use of the word, additional sum in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to add a few words of my own in support of that view. Before I do that, I may briefly set out the factual backdrop in which the appellant came to be prosecuted and convicted under the provision mentioned above. The appellant, who is the proprietor of M/s Tarama Medical Centre, Tarakeswar, Hooghly, issued a cheque in favour of the respondent/complainant bearing no.419415 dated 6th September, 1999 drawn on SBI, Tarakeswar Branch for Rs.69,500/- towards discharge of existing liabilities. When the cheque was presented by the complainant through his banker on 6th September, 1999 it was dishonoured for insufficient funds , which dishonour was communicated to the complainant on 7th October, 1999. The complainant respondent issued a demand notice, which was received by the accused appellant within the prescribed limitation period. However, since the accused failed to repay the amount within time, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 on 9th December, 1999. The Metropolitan Magistrate, 6th Court, Calcutta convicted the appellant for the offence under Section 138, Negotiable Instruments Act and sentenced him to six months simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purposes of this section," debt or other liability" means a legally enforceable debt or other liability. (emphasis supplied) In as much as the High Court set aside the sentence of six months simple imprisonment awarded to the appellant there is no quarrel nor any challenge mounted before us. That part of the order could be assailed by the complainant who has not chosen to do so. Whether or not the High Court was justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struments. The impact of this offence is usually confined to the private parties involved in commercial transactions. 5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system. (emphasis supplied) We do not consider it necessary to examine or exhaustively enumerate situations in which Courts may remain content with imposition of a fine without any sentence of imprisonment. There is considerable judicial authority for the proposition that the Courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of Rs.80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same. Viewed thus, the direction of the High Court that the appellant shall pay a further sum of Rs.69,500/- does not appear to be legally sustainable as rightly observed by my erudite Brother Vikramajit Sen, J. I, therefore, entirely agree with my Brother s view that payment of a further sum of Rs.20,000/- towards fine, making a total fine of Rs.1,00,000/- (Rupees one lac) out of which Rs.80,000/- has already been paid as compensation to the complainant, should suffice. The amount of Rs.20,000/- (Rupees twenty thousand) now directed to be paid shall not go to the complainant who is, in our view, suitably compensated by the amount already received by him. In the event of failure to pay the additional amount of Rs.20,000/- the appellant shall undergo imprisonment for a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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