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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.K. SONAWANE, J.
RAHUL KISAN KHANDE - Appellant
Vs.
SAMIR SALIM SHAIKH - Respondent
Criminal Application No. 3623 of 2018
Decided On : 02-04-2019
Criminal Procedure Code,1973 - Section 357 ,482 - Negotiable Instruments Act, 1881 - Section 138 - Quash of Criminal - Dishonour of cheque - Private complaint bearing Summary Criminal Case No. filed under Section 138 of Negotiable Instruments Act, 1881 - Respondent-original complainant initiated penal proceedings against applicant for charge of dishonour of cheque - Respondent-complainant, in order to bring home the guilt of applicant-accused adduced evidence on record - Learned Magistrate appreciated the evidence and held applicant-accused guilty for offence punishable under Section 138 of NI Act - Learned Magistrate sentenced the applicant-accused to suffer simple imprisonment for one year and to deposit an amount of Rs. in Court within a period of 30 days, from date of order towards compensation as prescribed under Section 357 of Cr.P.C - Being dissatisfied with impugned Judgment and order of conviction and resultant sentence of compensation applicant preferred an appeal before learned Additional Sessions Judge to redress his grievance – Held, Sub-section (1) of Section 357 provides power to award compensation to victims of offence out of sentence of fine imposed on accused - In this case Court are not concerned with sub-section (1) – Court are concerned only with sub-section (3) - It is an important provision but Courts have seldom invoked it - Perhaps due to ignorance of the object of it it empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto - This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system - It is a measure of responding appropriately to crime as well of reconciling victim with offender - It is to some extent a constructive approach to crimes - It is indeed a step forward in our criminal justice system – Court therefore recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way -When a person was convicted under Section 138 of Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior court for suspension of sentence - High Court while entertaining his revision granted suspension of sentence by imposing a condition that part of fine shall be remitted in court within a specified time - It is against said direction that this petition has been filed - In Court view the High Court has done it correctly and in interest of justice – Court feel that while suspending sentence for offence under Section 138 of Negotiable Instruments Act, it is advisable that court imposes a condition fine part is remitted within a certain period - If fine amount is heavy court can direct at least a portion thereof to be remitted as convicted person wants sentence to be suspended during pendency of appeal - In this case grievance of appellant is that he is required by High Court to remit a huge amount of rupees four lakhs as a condition to suspend sentence - When considering total amount of fine imposed by the trial court (twenty lakhs of rupees) there is nothing unjust or unconscionable in imposing such a condition - Hence there is no need to interfere with impugned order - As such no notice need be issued to respondent - Appeal dismissed
K.K. Sonawane, J.
Heard. Rule. Rule made returnable forthwith. The present Criminal Application is taken up for final hearing on merit with the consent of both sides.
2. The applicant, by invoking remedy under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C."), preferred present Criminal Application seeking relief to quash and set aside the impugned Order (below Exhibit-1) dated 22-11-2018, passed by learned Additional Sessions Judge, Kopargaon, in the proceeding bearing Criminal Appeal No. 46 of 2018, thereby directing the applicant to deposit amount of Rs. 2,00,000/- (Rs. Two Lakhs Only) towards part of compensation awarded by the learned Magistrate, First Class, Rahata, District Ahmednagar, by the next date.
3. The applicant was the accused in private complaint bearing Summary Criminal Case No. 1294 of 2015 filed under Section 138 of the Negotiable Instruments Act, 1881 ( for short "NI Act"). The respondent-original complainant initiated penal proceedings against the applicant for the charge of dishonour of cheque. The respondent-complainant, in order to bring home the guilt of applicant-accused, adduced evidence on record. The learned Magistrate appreciated the evidence and held applicant-accused guilty for the offence punishable under Section 138 of the NI Act. Learned Magistrate sentenced the applicant-accused to suffer simple imprisonment for one year and to deposit an amount of Rs. 6,50,000/- (Rs. Six Lakhs Fifty Thousands Only) in the Court, within a period of 30 days, from the date of order, towards compensation as prescribed under Section 357 of Cr.P.C.
4. Being dissatisfied with the impugned Judgment and order of conviction and resultant sentence of compensation, the applicant preferred an appeal before the learned Additional Sessions Judge, Kopargaon, to redress his grievance. The appeal filed on behalf of applicant came to be admitted and learned Additional Sessions Judge was also pleased to suspend the substantive sentence of imprisonment and enlarge the accused-applicant on bail pending the appeal.
5. The learned Additional Sessions Judge, Kopargaon also simultaneously passed impugned order dated 22-11-2018 and directed the appellant-applicant to deposit amount of Rs.2,00,000/- (Rs. Two Lakhs Only) being an part of compensation amount awarded by the learned Magistrate, in the Court, by the next date. The impugned order passed by learned Additional Sessions Judge, is the subject-matter in the present application.
6. The learned counsel for applicant explained entire factual aspects in detail and submits that the learned Magistrate committed error while imposing heavy amount of compensation on the applicant-accused. The learned Additional Sessions Judge also directed to deposit Rs. 2,00,000/- (Rs. Two Lakhs Only), being part payment of compensation within stipulated period. He contends that the substantive sentence of imprisonment has already been suspended by the learned Additional Sessions Judge and the applicant-accused was enlarged on bail pending the appeal. In such circumstances, the appellate Court has no jurisdiction to impose such conditions for payment of compensation partly, pending the appeal. Learned counsel for the applicant gave much more emphasis on the provisions of Section 357 of Cr.P.C. and submits that if appeal is filed against the impugned order of conviction and sentence of fine or compensation, it is not necessary to make payment of such fine or compensation till decision of the appeal. He further submits that amount of Rs.2,00,000/- (Rs. Two Lakhs Only), as directed by the Appellate Court, to deposit in the Court, towards part of compensation, is exorbitant and excessive. The learned counsel for applicant requested to quash and set aside the impugned order and directed the appellate forum to entertain the appeal without any deposit of compensation amount awarded by learned Magistrate, pending the appeal.
7. I have given anxious consideration to the rival contentions pr
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