IMPORTANT POINT
A criminal Court cannot simultaneously impose a sentence of fine and a direction for payment of compensation under S.357 (3) CrPC.

R. Basant, J. — Can a criminal court simultaneously impose a sentence of fine and a direction for payment of compensation under S. 357(3) Cr.P.C.? This interesting question arises for consideration in this revision petition, which is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under S.138 of the Negotiable Instruments Act.

2.In the nature of the contentions raised therefore me, it is not necessary for me to advert to facts in any detail. Signature in the Cheque is admitted. Notice of demand though duly received and acknowledged, did not evoke any reply. Though discharge was the plea urged, no evidence was adduced to prove that plea. The courts below concurrently came to the conclusion that the complainant has succeeded in proving all ingredients of the offence punishable under S. 138 of the N.I Act.

3.The trial court imposed the sentence of simple imprisonment for a period of one year and to pay a fine of Rs. 13,000/- and in Default to undergo simple imprisonment for a period of 3 months. The appellate court reduced and modified the sentence of imprisonment to one of imprisonment till rising of court. But thereafter the court, surprisingly proceeded to impose a sentence of fine of Rs.5,000/- coupled with a direction for payment of compensation of the actual cheque amount of Rs.10,752/-. Separate default sentences were imposed for the fine amount as well as the compensation amount.

4.Obviously, the learned Sessions Judge has not appreciated the provisions of S. 357(3) Cr.P.C. I extract below S.357 (3) Cr.P.C.

“S. 357(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.”(emphasis supplied)

5.The sub-section opens with the words “When a court imposes a sentence of which fine does not form a part”. If a sentence of fine is imposed, there can be no resort to the provisions of S. 357(3) Cr.P.C. A sentence must be there. Fine should not form a part of the sentence and that is why courts resort to the method of imposing a substantive sentence of imprisonment till rising of court and then proceed to issue a direction under S. 357(3) Cr.P.C. Dynamics of this procedure does not appear to have been considered by the learned Sessions Judge. I am satisfied that the said challenge raised in this revision must hence succeed to that extent.

6.I do further note that in this case trial was held before the learned Chief Judicial Magistrate who in law is competent to impose any sentence of tine authorised by law. Therefore the sentence of imprisonment till rising of court can also be avoided in this case. I have already adverted to the principles governing imposition of sentence in a prosecution under S. 138 of the N.I. Act in the decision reported in Anilkumar v. Shammi1. I am satisfied that there are no compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment Leniency can be shown, but the plight of the complainant cannot be ignore. He has been compelled to fight three rounds of legal battle by now and to wait from 2002 for the redressal of his grievances, he deserves to be compensated satisfactorily.

7.In the result:

(a)This Crl.R.P. is allowed in part;

(b)The impugned verdict of guilty and conviction of the petitioner under S. 138 of the N.I. Act are upheld;

(c)But the sentence imposed is modified and reduced. In suppersession or the sentence imposed on the petitioner by the courts below, he is sentenced to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only) and in default to undergo simple imprisonment for a period of 2 months. If realised the entire amount shall be released to the complainant under S. 357(1) Cr.P.C.

8.The petitioner shall appear