Ranganathan vs D. Shanmugasundaram

S. Sardar Zackria Hussain, J.—The revision petitioner is the accused in C.C. No. 214 of 2000 on the file of the Judicial Magistrate No. II

Court, Coimbatore. The Criminal Revision Case is filed against the judgment dated 11.9.2002 in C.A. No. 185 of 2002 on the file of the Principal

District and Sessions Court, confirming the conviction and modifying the sentence made in C.C. No. 214 of 2000 by the Judicial Magistrate No.

II, Coimbatore, as per judgment dated 7.5.2002. The learned Judicial Magistrate No. II, Coimbatore, convicted and sentenced the revision

petitioner/accused to undergo one year simple imprisonment for the offence u/s 138 of Negotiable Instruments Act and further directed to pay a

sum of Rs. 35,000/- towards compensation. In the appeal the conviction was confirmed and sentence was modified to that of six months rigorous

imprisonment and the compensation is also confirmed by the learned Principal District and Sessions Judge, Coimbatore.

The respondent/complainant filed the private complaint against the revision petitioner/accused, which was taken on file in C.C. No. 214 of 2000

that the cheque issued by the revision petitioner/accused towards discharge of the debt, was dishonoured when it was presented for collection and

that despite notice, the revision petitioner failed to pay the amount, and so the revision petitioner committed the offence u/s 138 of Negotiable

Instruments Act.

Before the Judicial Magistrate No. II Court, Coimbatore, P.Ws.1 to 3 were examined on the side of the respondent/complainant and Exs.P-1

to P-7 were also marked. The revision petitioner/accused examined D.W.1 besides marking Ex.D-1.

The trial Court in considering such evidence let in on both sides found the accused guilty in respect of the offence u/s 138 of Negotiable

Instruments Act and sentenced as set out above. In appeal, the appellate Court confirmed the conviction and modified the sentence to that of six

months rigorous imprisonment and the compensation awarded is also confirmed, which is under challenge in this Criminal Revision Case.

Heard the learned counsel appearing for the revision petitioner/accused and the learned counsel appearing for the respondent/complainant.

The learned counsel appearing for the revision petitioner/accused submits that out of Rs. 35,000/- awarded by way of compensation, the

revision petitioner already paid Rs. 15,000/- at the time of granting suspension of sentence. It is further submitted by the learned counsel that the

revision petitioner already suffered sentence of 39 days in jail. As regards the compensation, the learned counsel also submits that the revision

petitioner/accused is an auto driver and is unable to pay the compensation amount as directed by the trial Court and without giving an opportunity

with regard to the capacity to pay the compensation, the award of compensation amount of Rs. 35,000/- fixed by the trial Court and as confirmed

by the appellate Court, is not proper. In that view, the learned counsel relied on the following decisions:-

(1) Mangilal v. State of Madhya Pradesh reported in 2004 1 MWN(Cr.)(SC) 69, in which the Hon''ble Supreme Court held that if the Court

intends to award compensation, an opportunity of hearing has to be granted, so that relevant aspects like need to award compensation, capacity to

pay and several other factors can be taken note of.

(2) P. Noohukhan v. Paul Raj reported in 2004(1) MWN (Cr.) DCC (Mad.) 55, in which this Court held thus:-

It is pertinent to note that the penal clause does not contain any compensation to be awarded. It is only by virtue of Section 357 Crl.P.C. the

Courts have awarded compensation. Therefore, my interpretation is only with ''compensation'' as mentioned in Section 357, Crl.P.C. and not of

any other compensation mentioned in any other Act or for that matter in the Negotiable Instruments Act itself. Since there are no provisions in the

Negotiable Instruments Act to award compensation as a penalty u/s 138, Negotiable Instruments Act, though Section 117 of the Negotiable

Instruments Act contemplates compensation. But again, it has to be noted that in the present case, the petitioner has not suffered any loss as

contemplated u/s 357, Crl.P.C.

Learned counsel for the respondent/complainant submits that after considering the entire evidence, the learned Principal District and Sessions

Judge, Coimbatore, confirmed the conviction and modified the sentence to that of six months rigorous imprisonment and also confirmed the

compensation as awarded by the trial court. He also submits that only after paying the entire compensation amount, the leniency of sentence may

be considered.

As rightly held by this Court in 2004 1 MWN 55 (cited supra), in view of the fact that no provision is made in the Negotiable Instruments Act,

though Section 117 of Negotiable Instruments Act contemplates compensation in case of loss incurred by the complainant and further in case of

dishonoured cheque civil remedy is available as per law to recover that amount, it is clear that the compensation awarded by the trial Court as

confirmed by the District and Sessions Court, which is improper, is to be set aside.

Considering the facts that the cheque Ex.P-1 issued by the revision petitioner/accused in respect of the debt borrowed from the complainant,

was dishonoured when presented for collection and after issuance of statutory notice Ex.P-5 dated 23.2.2000, the complaint was filed, the trial

Court, rightly found the accused guilty u/s 138 of Negotiable Instruments Act. The appellate Court confirmed the conviction and modified the

sentence to that of six months rigorous imprisonment and as such, the sentence does not call for any interference.

In the result, this Criminal Revision Case is partly allowed. The judgment of conviction made in C.A. No. 185 of 2002 by Principal District and

Sessions Court, Coimbatore, is confirmed. The award of Rs. 35,000/- by way of compensation is deleted. The bail bond executed by the revision

petitioner/accused is cancelled. The Judicial Magistrate No. II, Coimbatore, is directed to take steps to secure the custody of the revision

petitioner/accused to undergo the remaining period of sentence.