Rajesh Rathi vs Pintu Kumar

T.K. Kaushal, J.—Present petition is directed against the order dated 20.11.2014 of Xth Additional Sessions Judge, Ujjain passed in Criminal Appeal No. 270/14 affirming the order dated 09.06.2014 passed by Judicial Magistrate, First Class, Ujjain in Criminal Case No. 3649/2009 by which petitioner was directed to pay a compensation of Rs. 2,90,000/- to the respondent/complainant in the case of 138 of the Negotiable Instruments Act (for short ''the N.I. Act'').

According to complaint filed by the respondent/complainant under section 138 of the N.I. Act, petitioner signed and issued a cheque of Rs. 2,00,000/- dated 12.04.2009 in favour of respondent/complainant which was bounced for want of funds and a complaint was filed in the concerned Court by the complainant under section 138 of the N.I. Act against the petitioner. Vide judgment dated 08.07.2010 passed in Criminal Case No. 3649/2009 J.M.F.C, Ujjain convicted the petitioner under section 138 of the N.I. Act and sentenced him with one year R.I and fine of Rs. 1,000/-.

Petitioner challenged the aforesaid judgment of conviction and sentence in the appellate Court. Vide judgment dated 21.09.2010 passed by Xth Additional Sessions Judge, Ujjain affirming the finding of conviction and sentence dismissed the appeal No. 297/10. Learned counsel submits that in compliance of it the petitioner has suffered one year jail sentence and has made payment of fine also after undergoing part of the default sentence. On 25.08.2010 petitioner was released from jail.

Learned counsel for the petitioner/accused submits that vide judgment dated 21.09.2010 passed in Criminal Revision No. 288/10 of the complainant/respondent challenging the same judgment, Xth Additional Sessions Judge, Ujjain has set aside the part of the fine sentence and remanded the case to the Court of J.M.F.C for hearing the complainant also and to pass orders on fine sentence afresh. In compliance of the aforesaid order of revisional Court, trial Court has passed the order dated 09.06.2014 holding the complainant entitled for compensation of Rs. 2,90,000/- in addition to jail sentence awarded to him and vide impugned order, the aforesaid order has been affirmed. Learned counsel submits that it amounts to review of its own order and is against the law.

Present petition has been directed on the grounds that no appeal was filed by the complainant for enhancement of sentence under section 386 of the Cr.P.C. hence in revisional jurisdiction at the behest of the complainant, no modification or enhancement of sentence is permissible. In revisional jurisdiction such order of remand should not have been passed which amounts to give an opportunity of review of sentence to the trial Court. At the most, the complainant could have filed an appeal under section 372 of the Cr.P.C. challenging the insufficiency of sentence which has not been filed.

Learned counsel further submits that the Court of Xth Additional Sessions Judge has passed the contradictory orders in respect of judgment dated 08.07.2010 of J.M.F.C, Ujjain passed in Criminal Case No. 3649/09. At one hand in the appeal of the accused affirmed the judgment saying that nothing is wrong in it at the same time in the matter of revision filed by the complainant set aside the fine sentence part of the judgment and remanded the case for adjudication of the amount of compensation. These two contradictory orders are not possible by the same Court by passing judgments on the same date but in two different matters.

Learned counsel for the petitioner placing reliance on the decision reported in N.R. Ghose Vs. The State of West Bengal, submitted that once conviction and sentence has attained finality by the judgment of competent Court then it should not be left to any modification or correction by any forum. In response, learned counsel for the respondent submits that position of conviction and sentence under section 138 of the N.I. Act is some what different because in it there is a provision of sentence of fine which may extent to twice the amount of cheque.

Learned counsel for the respondent/complainant supported the impugned order and submitted that in the case of bounce of cheque, compensation to the complainant is a normal and necessary feature which has been ignored by the trial Court without assigning any reason, hence in the interest of justice matter was remanded to pass a suitable order in respect of compensation after giving opportunity of hearing to both the parties and the trial Court has passed the order after hearing both the parties and nothing is wrong in it.

On perusal of the scheme of N.I. Act it becomes clear that for an offence under section 138 of the N.I. Act accused can be punished with imprisonment for a term which may extent to 2 years or with fine which may extent to twice the amount of cheque or with both. In such a situation, the judgment of the Magistrate convicting the petitioner under section 138 of the N.I. Act and sentencing him with R.I of one year and fine of Rs. 1,000/- is liable to be challenged by both the parties. Petitioner/accused has challenged it for want of legality in conviction and sentence. On the other hand, complainant has challenged it on the ground of insufficiency of the fine/compensation amount. These two course of actions are neither overlapping nor contradictory to each other. Finality of one matter cannot be said to be finality of another matter.

This apart, complainant had a right to challenge the insufficiency of the fine/compensation under section 372 Cr.P.C. or under section 401 Cr.P.C. but at last complainant has a right to be heard in this matter. In the considered opinion of this Court, if Xth A.S.J, Ujjain has decided Criminal Revision No. 288/2010 (Rajesh Rathi v. Pintu Kumar) on 21.09.2010 by their respective separate judgments then no wrong has been committed by the Court concerned because in the appeal preferred by the petitioner legality of judgment was examined to decide whether the conviction and sentence awarded to the petitioner was correct or not whereas in criminal revision the point for examination was of whether the trial Court has committed any illegality by keeping silent on the point of award of compensation.

The ratio of N.R Ghose''s case (supra) is regarding something else. In the present case right of both the parties to challenge the impugned judgment of the trial Court was protected.

In a case of bounce of cheque of Rs. 2 lacs, the jail sentence of one year and fine of Rs. 1,000/- was awarded. The trial Court had a discretion to award the compensation amount to the double of the amount of cheque. What had been the basis of amount of fine of Rs. 1,000/-, judgment of the trial Court is silent. With a view to ensure the adjudication of the matter i.e. entitlement of the complainant for due compensation, revisional Court has rightly remanded the case to the Magistrate so that both the parties may get opportunity of hearing.

The judgment dated 08.07.2010 of JMFC, Ujjain convicting the petitioner under section 138 of the N.I. Act was affirmed by the appellate Court because it was not a wrong judgment but was incomplete to some extent that is why in revisional jurisdiction the same Judge has set aside the finding of fine sentence and remanded the case back to the Magistrate for adjudication of amount of fine/compensation again.

Without going much deeper into the technicalities, now it has become clear enough that the impugned order has been passed after hearing the parties and judgment of the trial Court convicting and sentencing the petitioner under the N.I. Act was rightly affirmed in criminal appeal filed by the petitioner because it was a fit case for jail sentence and fine both but the same was disturbed in revision filed by the complainant because fine was less and part of compensation was totally missing from it and has been decided by the trial Court again and affirmed by the appellate Court and the impugned order has been passed after hearing both the parties at length.

As a result, the impugned order deserves to be affirmed to the extent that nothing is wrong by giving a direction of payment of compensation of Rs. 2,90,000/- to the respondent after deducting the fine already paid by the petitioner. In the peculiar facts and circumstances of the case in default no jail sentence should further be inflicted because petitioner has already suffered sufficient default sentence in the matter. In such a situation, the amount of compensation can be realized from the petitioner according to the provisions of section 421 Cr.P.C.

In the result, petition is allowed in part as indicated herein above.