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2006 Supreme(Bom) 1076
IN THE HIGH COURT OF BOMBAY
(Anoop V. Mohta, J.)
RAJENDRA RAMSING GHORPADE - Petitioner.
vs.
SHIKSHAN PRASARAK MANDAL
President - Smt. Khatija Begum - Respondent.
Advocates Appeared
For petitioner: L. V. Sangit
For respondent: Rajendra Deshmukh
Headnote:Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Sections 482 and 357 - Object and purpose of Act. - The object and purpose of Negotiable Instruments Act, reflects a basic scheme that the party should get the money back as early as possible. So-called civil liability must be discharged by paying back the money. The order of conviction and sentence though, available under the Negotiable Instruments Act, is no solution to the fact that the parties or the complainant would entitle to claim refund of the money given basically for commercial purpose or such other purpose to the opponent. The conviction of the accused under Section 138 of Negotiable Instruments Act is no substitute or solution and/or answer to the return of money as per the cheque.
Negotiable Instruments Act, 1881 - Section 138 - Conviction for dishonour of cheque. - Where Magistrate convicted accused for committing offence under Section 138 of Act but not awarded compensation to be paid to complainant therefore matter is remitted back to Magistrate for consideration.
Negotiable Instruments Act, 1881 - Section 138 - Cr PC, Section 357(3) - Conviction under Section 138 of Act. - Where while passing order of conviction under Section 138 of N.I. Act, Magistrate sentenced accused to suffer R.I. for one year and to pay fine without awarding any compensation under Section 357(3) of Cr PC therefore order is quashed and set aside to extent of order of sentence and fine.
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code (2 of 1974), Section 357 (3) - The conviction of the accused under Section 138 is no substitute or solution and/or answer to the return of money as per the cheque - Power of Court to grant compensation. - The object and purpose of Negotiable Instruments Act, if taken into consideration, it reflects a basic scheme that the party should get the money back as early as possible. So-called civil liability must be discharged by paying back the money. The order of conviction and sentence though, available under the Negotiable Instruments Act, is no solution to the fact that the parties or the complainant would be entitled to claim refund of the money given basically for commercial purpose or such other purpose to the opponent. The conviction of the accused under Section 138 of Negotiable Instruments Act is no substitute or solution and/or answer to the return of money as per the cheque. While passing the order of conviction under Section 137 of Negotiable Instruments Act, the JMFC, Chalisgaon sentenced the accused to suffer R.I. for one year and to pay fine of Rs. 5000/- without awarding any compensation under Section 357 (3) Criminal Procedure Code. The order is quashed and set aside to the extent of order of sentence and fine. The question of sentence and award of compensation need to be considered by the JMFC again. The matter is remitted back to the JMFC, Chalisgaon.
2. By consent the matter is remanded on following facts and reasons:
(i) The petitioner complainant initiated proceedings under section 138 of the Negotiable Instruments Act (N.1. Act) against the respondent.
(ii) While passing the order of conviction under section 138 of Negotiable Instruments Act, the Judicial Magistrate First Class (J.M.F.C.) Chalisgaon, has ordered sentence to suffer rigorous imprisonment for one year and to pay fine of Rs. 5,000/-, in default the accused to suffer further R.1. for two months. Admittedly, there is no whisper about the compensation as contemplated under section 357(3), Criminal Procedure Code. The petitioner therefore, has challenged the present order to the extent of not awarding any compensation by the J.M.F.C. Undisputedly, the appeal filed by the accused against the same order is pending before learned Additional Sessions Judge, Jalgaon bearing No. 114/2005.
3. In view of the observations of the Apex Court in following cases, basic submission has been made by the petitioner that this is an appropriate stage, where the Court should invoke provisions of section 482 of Criminal Procedure Code and pass an order of awarding compensation in such matters considering the- scheme of Negotiable Instruments Act (N. I. Act). Those observations are:
(a) In K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, 2000 ( 1) Mh.L.J. (SC) ]93 = (1999) 7 SCC 510 the Apex Court has observed thus:
"30. It is true, if a Judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded t said limit. In such a case of complainant would get only the maximum amount of rupees five thousand.
31. However, the Magistrate in such cases can alleviate the grievance the complainant by making resort to section 357(3) of the Code. It is we to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh vs. Sukhbir Singh). No limit is mentioned in the sub-section and therefore, a Magistrate can award an sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be reasonable amount of compensation payable to the complainant. Thu even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding Rs. 5000/- t Court has power to award compensation to be paid to the complainant 32. The question of sentence and award of compensation must considered by the trial Court. We deem it feasible that the Magistrate shall hear the prosecution and the accused on those aspects. Of course, the complainant and the accused settle their disputes regarding this cheque, in the meanwhile, that fact can certainly be taken into consideration in determining the extent of quantum of sentence."
(b) In Pankajbhai Nagjibhai Patel vs. State of Gujarat and another, 2001 Cri. L.J. 950, the Apex Court has stated further:
"17. In our view this question does not now pose any practical difficulty. Whenever a Magistrate of the First Class feels that the complainant should be compensated he can, after imposing a term of imprisonment award compensation to the complainant for which no limit is prescribed in section 357 of the Code."
(c) In Suganthi Suresh Kumar vs. Jagdeeshan, 2002 AIR SCW 298, the Apex Court has elaborated as under:
"But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. This very object of enactment of provisions like section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate.
