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TMI Blog2013 (10) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant preferred an appeal to the Additional District & Sessions Judge, Calcutta who by judgment dated 5.7.2004 dismissed the appeal and ordered the Appellant to surrender within 15 days. In these circumstances, Criminal Revision Record No.2447 of 2004 was filed in the High Court of Calcutta which was pleased to substitute the six months' sentence by an additional payment of Rs.69,500/-. C.R.R. No.2447 of 2004 was heard and decided along with C.R.R. No.2865 of 2004 also filed by the Appellant. Accordingly, as against the cheque amount of Rs.69,500/- the Appellant is liable to the extent of Rs.1,49,500/-. Faced with the prospects of jail the Appellant had earlier agreed to payment of the additional sum of Rs.80,000/- and for these reasons his plea for reduction thereto was turned down by the High Court in the impugned order. The Appellant was directed to pay a sum of Rs.19,500/- by May 31, 2011 and the balance of Rs.50,000/- in five equal instalments thereafter. Unfortunately, despite repeated readings of the Orders and related documents, the total liability of the Appellant is not clear as also the payments made till date. 2. Although the learned counsel for the complainant has ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition to the earlier sum of Rs.80,000/-), the sentence of imprisonment for six months would stand withdrawn. Learned counsel for the Appellant has fervently submitted that the Appellant is a man of limited financial means and this position has not been controverted. Palpably, the convict has filed appeals all the way to the Apex Court which would have entailed further expenses of no mean measure. We think that with the receipt of Rs.80,000/-, the complainant has received compensation for the dishonoured cheque as per the adjudication of the Trial Court. In these circumstances, any further payment would be in the nature of fine. Accordingly, we clarify that the Appellant must pay a sum of Rs.80,000/- receivable by the complainant within four weeks from today, if not already paid. The Appellant is also sentenced to payment of a fine of Rs.20,000/-, payable within eight weeks from today, and on the failure to make this payment, would be liable for imprisonment for six months. The Appeal is allowed in these terms. T. S. Thakur, J. I have had the advantage of going through the order proposed by my esteemed Brother Vikramajit Sen, J. While I entirely agree that the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above backdrop is whether the High Court was justified in directing payment of an additional fine of Rs.69,500/- which happens to be the cheque amount also, having regard to the fact that the appellant has already paid the sum of Rs.80,000/- to the complainant towards compensation in obedience to the order made by the Metropolitan Magistrate. There is no gainsaying that the High Court could have sentenced the appellant to imprisonment extending up to two years and/or to payment of fine equivalent to twice the cheque amount. This is evident from the provisions of Section 138 which reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque." (emphasis supplied) This Court also took note of the number of cases involving dishonor of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonor of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended to ensure quick recovery of the amount payable under the instrument. The following passages from the decision are in this regard apposite: "4...It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant to pay could be levied in lieu of the sentence of imprisonment, we must keep two significant aspects in view. First and foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the Court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. The High Court has, in the case at hand, obviously overlooked the statutory limitation on its power to levy a fine. It appears to have proceeded on the basis as though payment of compensation under Section 357 of CrPC is different from the power to levy fine under Section 138, which assumption is not correct. The second aspect relates precisely to the need for appreciating that the power to award compensation is not available under Section 138 of Negotiable Instruments Act. It is only when the Court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process comprises two stages. First, when the Court determines the amount of fine and levies the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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