Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1902 OF 2011

(Arising out of SLP (Crl.) No.2586 of 2007)

R.Vijayan

… Appellant

Vs.

Baby & Anr.

… Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard.

2.

The complainant in a complaint under section 138 of the Negotiable

Instruments Act, 1881 (‘Act’ for short) is the appellant in this appeal by

special leave. A cheque dated 31.3.1995 for Rs.20,000/- issued by the first

respondent drawn in favour of the complainant, towards alleged repayment

of a loan was dishonoured when presented for payment. The appellant sent a

notice dated 20.4.1995 demanding payment. According to the complainant,

the notice was served on the first respondent but the payment was not made.

Therefore on 25.5.1995 the appellant lodged a complaint against the first

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respondent, under section 138 of the Act before the First Class Magistrate

-IV, (Mobile), Thiruvananthapuram. After trial, the learned Magistrate by

judgment dated 30.11.1996 found the accused guilty under section 138 of

the Act and sentenced her to pay a fine of Rs.2000/- and in default to

undergo imprisonment for one month. He also directed the accused to pay

Rs.20,000/- as compensation to the complainant and in default to undergo

simple imprisonment for three months.

3.

The first respondent challenged the said judgment and the criminal

appeal filed by her was allowed by the First Additional Sessions Judge,

Thiruvananthapuram by judgment dated 26.11.2001. The conviction and

sentence imposed on the first respondent was set aside and the appellant was

acquitted. The first appellate court held that the accused having denied her

signature in the postal acknowledgement relating to the notice dated

20.4.1995, the appellant ought to have examined the postman who served

the notice; and as the appellant did not do so, the court held that the

complainant had not discharged the burden to prove that the notice was duly

served on the first respondent. The appellant filed criminal appeal before the

High Court. The High Court allowed the appeal in part. It held that the

service of notice was duly proved. As a consequence it restored the

conviction entered by the learned Magistrate in reversal of the judgment of

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the first appellate court. However the High Court held that it could only

restore the fine of Rs.2000/- imposed by the Magistrate with the default

sentence but not the direction for payment of compensation under section

357(3) of the Code, as it could not co-exist with the imposition of fine.

Therefore, the direction for payment of compensation was not restored. The

said judgment is challenged in this appeal by special leave.

4.

The appellant contends that sections 29 and 357 of the Code and

section 138 of the Act should be read harmoniously and complementary to

each other; and if so done, compensation could be awarded in cases under

section 138 of the Act to meet the loss sustained by the dishonour and that if

compensation could not be awarded for any reason, fine could be levied upto

twice the cheque amount; and therefore the High Court ought to have

restored the direction for payment of Rs.20,000/- to the appellant either by

way of compensation under section 357(3) or from the fine under section

357(1)(b) of the Code, by increasing the fine.

5.

Section 138 of the Act provided that where a cheque is dishonoured,

the person drawing the cheque shall be deemed to have committed an

offence and shall, without prejudice to any other provision of the Act, be

punished with imprisonment for a term which may extend to one year or

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with fine which may extend to twice the amount of the cheque or with both.

It may be mentioned that subsequent to the judgment of the learned

Magistrate, the said Section 138 was amended (with effect from 6.2.2003)

increasing and the period of imprisonment imposable to two years.

6.

Section