IMPORTANT POINT
Compensation under Section 357(3) of Code of Criminal Procedure, 1973 can be granted only in case where there is no sentence of fine.

Ms. Sonia, Gokani, J.—By way of present Revision Application preferred by the applicant under section 397 read with section 401 of the Code of Criminal Procedure, 1973, the applicant has challenged the legality and validity of the judgment and order of conviction and sentence dated March 05, 2012 rendered by the learned 11th Additional Chief Judicial Magistrate, Vadodara, in Criminal Case No.1817 of 1999, as also the judgment and order dated August 20, 2014 rendered by the learned 3rd Additional District and Sessions Judge, Vadodara in Criminal Appeal No.36 of 2012, whereby the learned Judge has confirmed the judgment and order of conviction and sentence passed by the trial Court, whereby the trial Court convicted the applicant for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and sentenced him to undergo simple imprisonment for one year and a fine of Rs.5000/, in default to undergo simple imprisonment for 15 days.

2. The facts in brief are as under :

2.1 The respondent No.2complainant is in the business of trading in edible oil, who supplied oil to the applicant convict. Three cheques were given to the respondent No.2complainant by the applicant, the details of which are as under:     

2.2 When presented before the Bank, the said cheques came to be dishonoured on account of insufficiency of funds on June 03, 1999. The intimation was given to the respondent No.2 complainant by the Bank in that respect of June 04, 1999, and, therefore, a demand notice came to be issued on June 11, 1999. On June 28, 1999, a reply was given to the show cause notice, which was averred to be evasive. A complaint, therefore, came to be filed. After adducing evidence and on giving ample opportunities to both the sides, the Court concluded that the charge having been proved, the applicant is held guilty under section 138 of the Act vide its judgment and order dated March 05, 2012. The very judgment and order of conviction and sentence was challenged before the lower Appellate forum by way of Criminal Appeal No.36 of 2012, which ultimately came to be confirmed by the Appellate Forum. It is urged that the original complainant has died and, therefore, his son has been replaced as impleaded as a complainant, who had no personal knowledge of the business of his late father. The other heirs were not joined. When the person who had no knowledge of the actual transaction had stepped into the witness box, on strength of such evidence, he did not discharge initial burden of proving the legally enforceable debt. It is further averred that when the purchase of the goods namely oil is disputed, no record of transaction can be proved and, therefore, the entire judgment and order is based on assumptions and presumptions. Moreover, the applicant is categorical that he has not given any reply to the notice. Even in his further statement under section 313 of the Code of Criminal Procedure, 1973, he has stated so, however, the Court has yet believed that the notice has been issued and, therefore, the wrong has been committed. Hence, present Revision Application.

3. A fortiori, Shri S.P. Hasurkar, learned counsel appearing for the applicantconvict has urged that unless the respondent No.2complainant discharges his liability of proving that there existed the legally enforceable debt, the Court could not be proceeded further and invoked presumption provided under section 139 of the Act. It is his say that the comp