IMPORTANT POINTS
(1) Appellate Court committed error in not giving sentence in default for making payment of compensation.
(2) In view of provision of S. 65 of IPC, sentence of simple imprisonment of six months can be given in default of making payment of compensation.

T.V. Nalawade, J.—Both the revisions are filed against the judgment and order of Criminal Appeal No.24/2011, which was pending in the Court of Sessions Judge, Parbhani. The petitioner from Criminal Revision Application No. 244/2013 was accused in SCC No. 772/2007, which was pending in the Court of Judicial Magistrate, First Class (hereinafter referred to as ‘J.M.F.C.’) and the case was filed for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the Act’) by the petitioner from Criminal Revision Application No. 56/2014. The accused is convicted and sentenced by the learned J.M.F.C. and he is sentenced to suffer imprisonment for the period of two months. He was also directed to pay compensation of Rs.3,00,000 (Rupees three lakh) and fine of Rs.2,000 (Rupees two thousand). This decision is modified by the learned Sessions Judge and the substantive sentence is reduced to the term, till the rising of the Court and compensation is increased to make it Rs.3,50,000 (Rupees three lakh fifty thousand). The fine order is also set aside. This was done in view of the submission made by the learned counsel for the complainant in that regard. In the present proceeding both the sides are heard. This Court has perused the original papers.

2. The decision is challenged mainly on the ground that the trial was not conducted de novo, when the evidence was recorded by the predecessor of the J.M.F.C. who decided the case. It was submitted that the case was tried as summons case, but in summary manner and so, the J.M.F.C., who decided the case, could not have decided the matter on the basis of evidence recorded by his predecessor. It was submitted that in view of the provision of Section 143 of the Act, it needs to be presumed that the case was tried in summary manner. With this submissions, it was further submitted that the conviction cannot sustain in law and the trial is vitiated. Though other contentions are made in the petition, only the aforesaid point was argued in the present proceeding.

3. On the other hand, the learned counsel for the original complainant submitted that the learned Sessions Judge has committed mistake in not giving sentence in default of making payment of compensation amount and due to that, the claimant is facing problems in enforcing the order. It was also submitted that nothing is said about the compensation amount of Rs.50,000 which remains after making of the payment of Rs.3,00,000 to the complainant and in view of the provisions, he is entitled to get all the amount of compensation which the accused needs to deposit as per the order made by the learned Sessions Case.

4. In view of the nature of aforesaid challenge to the decision of the Trial Court and the learned Sessions Judge, the relevant provisions of Criminal Procedure Code (hereinafter referred to as ‘the Code’) and the Act need to be seen first.

5. The relevant portion of the provision of Section 143(1) of the Act runs as under:

“143. Power of Court to try cases summarily—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:”

The aforesaid provision has three parts as under:

(i) Notwithstanding anything contained in the Code as amended in 1974, the provisions of the Special Act will apply.

(ii) All the offences under this Chapter (Chapter XVII) of the Act shall be tried by J.M.F.C. or by Metropolitan Magistrate (hereinafter referred to as ‘M.M.’) and

(iii) The provisions of sections 262 to 265 of the Code (both inclusive) shall as far as may be apply to such trials.

The bare reading of this provision shows that some change is made in the procedure laid down in the Court by the special provisions of the Act. To ascertain what is the exact