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TMI Blog2007 (3) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent auditor, Mr. R. Kasi Viswanathan. His determination shall be final and binding on both the parties. 2) The above scrutiny and finalization shall be completed before 31.1.1996. Until such time, we shall not raise any dispute against each other. 3) Till such finalization, Mr. Shankar shall handover a cheque (cheque No. 551661 dated 31.1.96) for ₹ 7 lakhs to Mr. Suresh Kumar as security deposit. 4) If the share of profits for Mr. Suresh Kumar is more than 7 lakhs, he shall encash the cheque and shall also receive the balance amount from Shankar forthwith. If the share of profits is less than 7 lacs, Suresh Kumar shall return the said cheque and Shankar shall pay Suresh Kumar a draft for the amount of profits determined. If any profit is due to Shankar, Suresh Kumar shall pay the same to Shankar forthwith. 2. Pursuant thereto or in furtherance thereof, the respondent allegedly handed over a post dated cheque for a sum of ₹ 7,00,000/- to the appellant. As the said cheque was dishonoured on presentation, a complaint petition was filed by the appellant inter alia alleging: 3. ...Further the accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. An appeal there against was filed by the respondent. The learned Additional Sessions Judge partially allowed the said appeal stating: 22. In the result, this Criminal Appeal is partly allowed thereby the finding of conviction against the accused under Section 138 of Negotiable Instrument Act is confirmed and the sentence is modified to the effect that the appellant/ accused should pay a fine of ₹ 5,000/- (Rupees five thousand only) under Section 138 of Negotiable Instrument Act and in default to undergo three months simple imprisonment and the order of the learned Magistrate in awarding compensation is set aside. There is no order as to cost. The appellant/ accused will be entitled to get back the amount deposited by him less the fine amount, now imposed, and entitled to get back the bank guarantee and other security deeds filed by him in this case after the time for revision or appeal is over or after the revision or after if any preferred is over. 5. Appellant herein preferred a revision application before the High Court which was marked as R.C. No. 1213 of 2001 whereby and whereunder modification was made by the appellate co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the parties hereto was wrongly not accepted by the courts below, as the same should have been considered by the courts below in the light of the averments made by the complainant in the complaint petition wherefrom it would be evident that: (i) the share of the profit in the partnership business was still to be ascertained; (ii) the cheque was issued in anticipation of the accounts to be audited by a named auditor; (iii) Only upon finalization of the accounts by the auditor, the debt or liability of the respondent could have been clearly ascertained so as to make him liable for payment of any amount pursuant thereto or in furtherance thereof. 9. In the instant case, it was urged, as the appellant himself in his complaint petition categorically stated that the actual amount of the liability of the respondent was yet to be ascertained, the courts concerned must be held to have committed a manifest error in recording a judgment of conviction. It was further submitted that the appellate court and consequently, the High Court also committed a manifest error inasmuch as they failed to take into consideration that the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o been imposed. A reading of Sub-section (3) of Section 357 would show that the question of award of compensation would arise where the court imposes a sentence of which fine does not form a part. The decision in Rachhpal Singh does not take any contrary view nor hold that compensation may be awarded over and above the sentence of fine. A perusal of Sub-section (3) of Section 357 CrPC would make the position clear. 11. In the present case, sentence of fine has also been imposed, as indicated in the earlier part of this judgment. Out of the fine, a sum of ₹ 1000 each had been ordered to be given to the three injured persons, namely, Dalip Singh, Amarjit Kaur and Gurmeet Kaur. The balance amount is to go to the legal heirs of Jagjit Singh. We had heard the learned Counsel for both parties on this aspect. Learned Counsel for the appellant submitted that Gurmeet Kaur lost both her parents as well as her brother in the incident and now she is alone and would have become of marriageable age or may have to start some work of her own. She would need some money. In case she cannot be compensated, the amount of fine may be enhanced to some extent. Learned Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/-. It was found as of fact to be so by the courts below. The said findings do not warrant any interference. The defence raised by the respondent to the effect that the parties had entered into a compromise in the police station and he had to sign a cheque under some threat or coercion had not been accepted by the courts below. There cannot be any doubt whatsoever that had the respondent been able to show that the cheque had been issued not in discharge of a debt but by way of a security pending determination of his liability by an auditor, the matter would have been different. In such an event, the court could have arrived at a finding that the cheque having been issued on the basis of an anticipated profit which by itself did not create any liability in presenti and the result of the audit might have gone either way, no case under Section 138 of the Act was made out. But, the same is not the case here. 15. The question which now arises for consideration is as to whether any case for awarding a substantial sentence has been made out. We do not think so. Grant of compensation, in our opinion, would subserve the purpose. Appellant may also file a suit for damage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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