TMI Blog2022 (4) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... any conviction in a summary trial, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. In cases under Section 138 of the Negotiable Instruments Act, compensation can be granted only under Section 357 (1)(b) of Cr.P.C. and not under Section 357(3) of Cr.P.C. In view of Section 143 of the Negotiable Instruments Act, conversion of fine into compensation under Section 357(3) of Cr.P.C. is illegal and beyond jurisdiction - revision disposed off. - Criminal Revision No.742/2010 - - - Dated:- 19-4-2022 - Hon'ble Shri Justice Deepak Kumar Agarwal For the Petitioner : Shri Siddharth Sharma, learned counsel For the Respondent : Shri A.V.Bhardwaj, learned counsel ORDER Petitioner has filed this criminal revision being aggrieved by the judgment passed by the Appellate Court in Criminal Appeal No.79/2008 on 26.8.2010 by which the Appellate Court has modified the judgment passed by the learned JMFC, Sironj, in Criminal Case No.472/2006 on 10.3.2008 and converted the fine into compensation under Section 357(3) of Cr.P.C. 2. Brief facts of the case nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has elapsed, or, if an appeal be presented, before the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for offences punishable under section 138 of the Act, a First Class Magistrate may impose a fine exceeding ₹ 5000/-, the ceiling being twice the amount of the cheque. 8. It is true that in Section 143(1) of the Negotiable Instruments Act another proviso has been added that if summary trial is not possible, accused will be tried by way of summons trial and Magistrate will rehear the case in the manner provided by said Code. But in aforesaid provision, there is no bar that if trial is conducted in summons manner, Magistrate cannot impose the fine twice the cheque amount. In this regard, the order of Chhattisgarh High Court in Atharva Agro Chemical Pvt. Ltd. vs. Gopal Chand Barik Anr. decided on 4.2.2021 in Criminal Misc. Petition No.357/2013 is relevant, whereby Chhattisgarh High Court relying on the judgment of the Apex Court in the case of R.Vijayan (supra) has held as under :- 17. In the matter of R. Vijayan v. Baby and another, (2012)1 SCC 260 their Lordships of the Supreme Court culled out the following principle contained in the provisions of Chapter-XVII of the Act, which states as under:- (i) The provision for levy of fine which is linked to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice 19. We are conscious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. Thereafter, while granting appeal and confirming conviction of the respondent therein, their Lordships of the Supreme Court sentenced him only to fine, which was enhanced to ₹ 16 lakhs and further directed the same to be paid as compensation to the complainant. It was held as under: - 40. The appeals are allowed. The judgment and order of the High Court is set aside. The conviction of the respondent under Section 138 of the Negotiable Instruments Act is confirmed. However, the respondent-accused is sentenced only to fine, which is enhanced to ₹ 16 lakhs and shall be paid as compensation to the appellant complainant. The fine shall be deposited in the trial court within eight weeks from the date, failing which the sentence of imprisonment of one year as imposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
