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TMI Blog2024 (6) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 834 - CALCUTTA HIGH COURT] , it was held that ' The Negotiable Instruments Act provides for sentence of imprisonment and sentence of fine. The compensation is not the part of any sentence neither it is a substitute of sentence but in addition thereto. The provisions of Section 357(3) of the Code makes it abundantly clear that when Court imposes a sentence may order the accused person to pay by way of compensation such amount as may be specified, when fine does not form the part of the sentence. Therefore, no compensation can be awarded without being preceded by imposition of sentence and obviously not by imposition of sentence of fine.' The judgment and order dated 30.03.2019 passed by the learned Sessions Judge, Hooghly in Criminal Appeal No. 6/2018 and the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 5th Court, Hooghly, in CR No. 98/2013, convicting the petitioner to pay Rs. 1,00,000/- to the complainant as compensation within 30 days in default he shall suffer simple imprisonment for a period of twelve months, as to sentence not being in accordance with law is hereby modified - Application disposed off. - The Hon ble Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Cr.P.C. read with Rule 251 of Calcutta High Court Criminal (Subordinate Courts) Rule, 1985. The judgment is pronounced in open court, in presence of both sides, and given under the hand and seal of this court on 07th of May, 2018. Thus, the case is disposed off. Bench clerk to give note in relevant registers and C.I.S. Sd/ Judicial Magistrate, 5th Court, Chinsurah Hooghly. FINDINGS : - 9. It has been proved that the cheque in question was dishonoured for insufficient funds . 10. Admittedly the petitioner/accused had issued the disputed cheque. 11. The presumption under Section 139 N.I. Act in favour of the Complainant/Opposite Party could not be rebutted by the petitioner/accused. 12. The mandatory provisions under Section 138 N.I. Act has also been duly complied with by the complainant. 13. It appears that the cheque has been issued by the petitioner in his personal capacity from his personal account. 14. Thus the findings and order of conviction passed by the Trial Court and affirmed by the Appellate Court is in accordance with law and thus requires no interference by this Court. 15. But the sentencing is clearly not in accordance with law. 16. Section 138 N.I. Act, lays d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside only on the ground that the same was not preceded by imposition of any sentence. The case is remanded back to the Trial Court to pass necessary order only on the question of sentence and compensation in accordance with law without being influenced by the fact of the amount of compensation was reduced by the Appellate Court, which was not only otherwise wholly unjustified, but has been set aside by this Court. The Trial Court is further directed to take into consideration the ratio of the decision of the case of Mongilal v. State of M.P. reported in 2004 SCC (Cri) 1058 : 2004 Cri LJ 880 and in the case of Biswajit Chowdhury v. S.S. Distributors reported in 2002 (3) CHN 682. 19. In Somnath Sarkar vs Utpal Basu Mallick Anr., AIR 2014 SC 771, decided on 7 October, 2013, the Supreme Court held:- We say so having regard to a three- Judge Bench decision of this Court in Damodar S. Prabhu v. Syed Babalal H. (2010) 5 SCC 663 where this Court briefly examined the object sought to be achieved by the provisions of Section 138 and the purpose underlying the punishment provided therein. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial system. ( emphasis supplied ) We do not consider it necessary to examine or exhaustively enumerate situations in which Courts may remain content with imposition of a fine without any sentence of imprisonment. There is considerable judicial authority for the proposition that the Courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the Court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the Court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. In as much as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- towards fine, making a total fine of Rs.1,00,000/- (Rupees one lac) out of which Rs.80,000/- has already been paid as compensation to the complainant, should suffice. The amount of Rs.20,000/- (Rupees twenty thousand) now directed to be paid shall not go to the complainant who is, in our view, suitably compensated by the amount already received by him. In the event of failure to pay the additional amount of Rs.20,000/- the appellant shall undergo imprisonment for a period of six months. With these words, I concur with the order proposed by Brother Vikramajit Sen, J. 20. In Tedhi Singh vs Narayan Dass Mahant, Criminal Appeal No. 362 of 2022 (arising out of SLP (Crl) No. 1963 of 2019), decided on 07th March, 2022, the Supreme Court held:- 12. However, we would think that in the totality of facts of this case the appellant has not established a case for interference with the finding of the Courts below that the offence under Section 138 N. I. Act stands committed by the appellant. We have been told that the amount of compensation in a sum of Rs.7 Lakhs which is relatable to the cheque amount has been deposited already in the Trial Court. However, we would think that the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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