A Magistrate can award compensation under Section 357(3) CrPC only when the sentence imposed does not include a fine. If a fine is imposed, the Magistrate can award compensation under Section 357(1) CrPC, but the amount of compensation cannot exceed the limit prescribed for the fine under Section 29(2) CrPC.

Joytosh Banerjee, J.

This proceeding arises out of an application under section 401 read with section 482 of the Criminal Procedure Code, 1973 and it is directed against the judgement and order dated 24-8-2001 passed by the Additional Sessions Judge, 13th Court, Alipore, 24-Parganas(S), in Criminal Appeal No. 19/2001 modifying the judgment and order of conviction and sentence passed by the Sub-Divisional Judicial Magistrate, Alipore, 24-Parganas(S) in complaint case No. 112/97 convicting the petitioner for commission of the offence punishable under section 138 of the N.I. Act, 1881 (as amended upto date) and sentencing him to pay a fine of Rs. 5000/-, in default simple imprisonment for 3 months and directing the petitioner to pay a compensation to the tune of Rs. 3,00,000/-.

2. Briefly stated the circumstances under which, the petitioner has come before this court, are as follows:- The petitioner issued two cheques dated 18.5.96 and 11.6.96 totalling Rs. 2,77,551.58 paise drawn on Bank of Baroda in favour of O.P. M/s. S.S. Distributors having its office at 18B/1A, Satya Doctor Road, Khiddirpur, Calcutta-700 023, in discharge of his liability and debt towards the O.P. The cheques were presented on 23.11.96 by the O.P. for payment through its bank, Bank of Baroda, Khiddirpur Branch, but those cheques were returned unpaid with the endorsement "Exceeds arrangement dt. 26.11.96". On receipt of the information from the bank on 27.11.96, the O.P. issued a notice on 3.12.96 to the petitioner by Registered Post with A.D. informing him that the aforesaid cheques had been dishonoured and demanded payment within 15 days from the receipt of the said notice. The notice was received, as per acknowledgment by the petitioner on 6.12.96, but no payment was made till the date of filing of the case.

3. In connection with the trial of the case, the petitioner appeared before the trial court. The defence case in such trial was that there was different transactions on different dates between the petitioner and the O.P. and no such cheques of the alleged amount were issued. The petitioner claimed, that following the usual practice in the business, he kept signed blank cheques and the O.P. used those cheques after inserting the amount appeared in such cheque. The specific case of the petitioner was that he received Rs. 1, 3, 985.93 paise from the O.P. out of which an amount of Rs. 53, 985.93 paise was lying unpaid.

4. Through the instant proceeding, the petitioner wants to challenge the order passed by the learned Additional Sessions Judge, confirming the conviction and sentence but modifying the amount of compensation from Rs. 4,00,000/- to Rs. 3,00,000/- by alleging, inter alia, that the learned court below failed to appreciate the specific defence case in spite of the fact that such version got support from the prosecution witnesses who admitted that the writing on the body of the cheque and the signature were different, that such court failed to appreciate that Rs. 50,000/- was paid by the bank draft to the de facto complainant, but the same was not deducted from the total dues. That the examination under section 313 of the C.P. Code in the instant case was conducted contrary to the law as various incriminating facts which have been relied on in the instant case were not placed before the petitioner during his examination under section 313 of the Code of Criminal Procedure, that the compensation in the instant case was awarded contrary to the provisions of section 357 of the Code of Criminal Procedure.

5. I have heard the arguments of both sides, learned Counsel for the petitioner has mainly contended that the courts below did not consider the specific defence case before coming to the conclusion. His contention was that the impugned cheques indicating the amount of money both in number and in words were not written by the accused. Some post dated cheques with the signature of the petitioner were kept with the complainant with the instruction t