Orissa High Court
Ghanashyam Routa vs P. Narasingha Dora .... Opp. Party on 28 March, 2023
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.1152 of 2014
Ghanashyam Routa .... Petitioner
Mr.P. C. Panda, Advocate
-versus-
P. Narasingha Dora .... Opp. Party
Mr. M.M. Swain, Advocate
CORAM:
JUSTICE CHITTARANJAN DASH
DATE OF JUDGMENT : 28.03.2023
Chittaranjan Dash, J
1. Heard learned counsel for the parties.
2. The legality, propriety and correctness of the judgment and order
dated 11th December, 2014 passed by the learned Additional Sessions
Judge, Aska in Criminal Appeal No.20 of 2014 (01 of 2012 of Circuit
Court, Aska) arising out of I.C.C. Case No.41 of 2007 passed by the
learned J.M.F.C., Aska has been challenged in this revision. The
Petitioner having faced trial found guilty in the offence under section
138 of the Negotiable Instruments Act (hereinafter in short called "the
N.I.Act") and sentenced to undergo simple imprisonment for a term of
three months and to pay compensation of Rs.60,000/- under Section
357(3) Cr.P.C.
3. Succinctly, the case of the Petitioner is that he and the
complainant/respondent are well known to each other and were good
friends. The Petitioner, in order to purchase a Tractor with Trailor availed loan from the bank but could not repay the same within the CRLREV No.1152 of 2014 Page 1 of 9 // 2 // stipulated period. He accordingly approached the complainant/ respondent to accommodate him with a friendly loan of Rs.43,000/- for repayment of the loan incurred by him from the bank. The complainant/ respondent reciprocating the gesture of friendship agreed and paid a sum of Rs.43,000/- to the Petitioner/ accused towards a friendly loan. The Petitioner had promised to pay back the said amount at the time of need of the complainant/ respondent. On 25th December, 2006 the complainant/respondent requested the Petitioner/accused for repayment of the amount taken towards friendly loan. The Petitioner/accused could not repay the loan, however, on the request of the respondent, the Petitioner issued the cheque bearing No.403806 dated 26th December, 2006 for the sum of Rs.43,000/- in favour of the respondent drawn on State Bank of India (ADB) Branch, Aska against his account No.01170070397.
4. The respondent presented the said cheque with his banker i.e. Rushikulya Gramya Bank, Aska Branch to credit the cheque amount to his account. On 1st June, 2007 the banker of the respondent intimated the complainant about the dishonour of the cheque on the ground of "insufficiency of fund" in the account of the Petitioner. Soon after the receipt of the intimation slip from the bank and the return of the cheque, on 11th June, 2007 the respondent issued a legal notice to the Petitioner accused through his Pleader demanding the dishonoured cheque amount within the statutory period i.e. 15 days of receipt of the demand.
5. On 20th June, 2007 the said legal notice returned back to the Respondent with endorsement "Addressee always absent, hence returning to the sender". As the Petitioner failed to comply the demand of the respondent by paying the dishonoured cheque amount, the CRLREV No.1152 of 2014 Page 2 of 9 // 3 // Respondent brought the complaint before the competent court under Section 138 of the N.I. Act. The learned court below having found the complainant to have complied with the statutory requirement to bring the complaint under the provisions of under Section 138 N.I. Act in accordance with law and having met all requirements of law found the Petitioner accused to committed the offence U/s 138 of the N.I. Act, held him guilty therein and sentenced as mentioned above.
6. As reveals from the case record, the Petitioner being aggrieved by the judgment and order dated 26th July, 2012 of the learned J.M.F.C., Aska preferred the appeal before the Additional Sessions Judge, Aska. The learned Additional Sessions Judge, Aska having reassessed the evidence concurred with the findings of the learned J.M.F.C., Aska and dismissed the Appeal, being aggrieved whereof the Petitioner preferred the present revision.
7. Mr. Panda, learned counsel for the Petitioner in course of the hearing in the revision while did not dispute the statutory compliance in respect to the issuance of cheque, its presentation, dishonour of the same, the legal notice and the complaint as laid from the side of the complainant, disputed the punishment awarded by the learned J.M.F.C. as concurred by the learned Additional Sessions Judge, Aska. According to Mr. Panda, the learned court below did not adhere to the provision of the offence under Section 138 N.I. Act in respect to the punishment provided there under and committed an illegality by awarding substantive sentence as well as compensation in terms of Section 357(3) Cr.P.C when fine was part of the punishment. Mr. Panda relied upon the decision of the Apex Court in the case of R. Vijayan vrs. Baby and another reported in AIR 2012 SC 528.
CRLREV No.1152 of 2014 Page 3 of 9// 4 //
8. Mr. Panda though referred to the Judgment of the Apex Court reiterated that the Courts below having awarded the punishment with substantive sentence could not have awarded compensation U/s. 357(3) Cr.P.C and asserted the impugned Judgment and order bad in law and not sustainable in the eye of law.
9. Section 138 of the N.I. Act provides that a drawer of a cheque is deemed to have committed the offence if the following ingredients are fulfilled: (i) A cheque drawn for the payment of any amount of money to another person; (ii) The cheque is drawn for the discharge of the 'whole or part' of any debt or other liability. 'Debt or other liability' means legally enforceable debt or other liability; and (iii) The cheque is returned by the bank unpaid because of insufficient funds. However, unless the stipulations in the proviso are fulfilled the offence is not deemed to be committed. The conditions in the proviso are as follows:
(i) The cheque must be presented in the bank within six months from the date on which it was drawn or within the period of its validity; (ii) The holder of the cheque must make a demand for the payment of the 'said amount of money' by giving a notice in writing to the drawer of the cheque within thirty days from the receipt of the notice from the bank that the cheque was returned dishonoured; and (iii) The holder of the cheque fails to make the payment of the 'said amount of money' within fifteen days from the receipt of the notice. Admittedly in the present Revision the Petitioner has not raised any issue in respect to these aspects. Hence, the complaint as laid by the Respondent is in order.
10. Coming to the point of dispute, when the impugned order is seen it reveals that the leaned court below having found the Petitioner guilty of the offence under section 138 of the N.I. Act sentenced him to undergo CRLREV No.1152 of 2014 Page 4 of 9 // 5 // substantive sentence of simple imprisonment for three months and to pay compensation of Rs.60,000/- . The punishment stipulated under section 138 NI Act is as follows:
S 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 committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.CRLREV No.1152 of 2014 Page 5 of 9
// 6 // Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
11. As discussed above, the Apex Court in R. Vijayan vrs. Baby and another (supra) has clarified the position of law in awarding the punishment:
5. Section 138 of the Act provided that where a cheque is dishonoured, the person drawing the cheque shall be deemed to have committed an offence and shall, without prejudice to any other provision of the Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both.
It may be mentioned that subsequent to the judgment of the learned Magistrate, the said Section 138 was amended (with effect from 6.2.2003) increasing and the period of imprisonment imposable to two years.
6. Section 357 relates to Order to pay compensation.
"357. Order to pay compensation.--(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied ---
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) & (d) x x x x (not relevant)
(2) x x x x x (not relevant)
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of sessions when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section.
CRLREV No.1152 of 2014 Page 6 of 9// 7 //
7. Sub-section (3) of section 357 , is categorical that the compensation can be awarded only where fine does not form part of the sentence. Section 357 (3) has been the subject-matter of judicial interpretation by this Court in several decisions. In State of Punjab vs. Gurmej Singh [2002 (6) SCC 663], this Court held :
"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."
This Court also held that section 357(3) will not apply where a sentence of fine has been imposed.
8. In Sivasuriyan vs. Thangavelu [2004 (13) SCC 795], this Court held:
"In view of the submissions made, the only question that arises for consideration is whether the court can direct payment of compensation in exercise of power under sub-section (3) of Section 357 in a case where fine already forms a part of the sentence. Apart from sub-section (3) of Section 357 there is no other provision under the Code where under the court can exercise such power:"
After extracting section 357(3) of the Code, the Court proceeded to hold thus:
"On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part. In the case in hand, a court having sentenced to imprisonment, as also fine, the power under sub-section (3) of Section 357 could not have been exercised. In that view of the matter, the impugned direction of the High Court directing payment of compensation to the tune of Rs. one lakh by the appellant is set aside."
9. It is evident from Sub-Section (3) of section 357 of the Code, that where the sentence imposed does not include a fine, that is, where the sentence relates to only imprisonment, the court, when passing judgment, can direct the accused to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. The reason for this is obvious. Sub- section (1) of section 357 provides that where the court imposes a sentence of fine or a sentence of which fine forms a part, the Court may direct the fine amount to be applied in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a Civil Court. Thus, if compensation could be paid from out of the fine, there is no need to award separate CRLREV No.1152 of 2014 Page 7 of 9 // 8 // compensation. Only where the sentence does not include fine but only imprisonment and the court finds that the person who has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation under compensation under section 357(3).
12. In the case in hand, the learned court below has awarded punishment with substantive sentence only besides the compensation and no fine has been imposed as against punishment. Consequently, fine being not a part of the punishment in the case, the compensation awarded by the court U/s.357 (3) is absolutely legal and justified.
13. In fact, the Petitioner has misconstrued the impugned Judgment and order, may be for the reason that the Petitioner put emphasis on the narration made in the brief history given in the impugned Judgment passed by the Addl. Sessions Judge wherein the court described the "compensation" as "fine" which is apparently a misdescription by the Appellate court since the Judgment of the original Court does not have such description. To bring clarity the order passed by the learned JMFC is reproduced as follows;
"Considering the nature and gravity of the offence and the manner of compensation of the same along with its impact on the society on the present days, I am of the view that sentence of imprisonment and award of compensation to be paid to the complainant will meet the ends of justice. Hence, the convict is hereby sentenced to undergo simple imprisonment for a term of three months and to pay compensation of Rs.60,000/- (Rs.43,000/- towards the cheque amount and Rs.17,000/- towards the legal expenses incurred by the complainant) under section 357 (3) of Cr.P.C. to the complainant."CRLREV No.1152 of 2014 Page 8 of 9
// 9 // In essence, therefore, the impugned judgment being absolutely in tune with the principles enunciated by the Apex Court, as above, is found to be a well reasoned order and requires no interference. Hence, ordered.
14. The revision is dismissed being devoid of merit. In the circumstances, however, there is no order as to cost.
(Chittaranjan Dash) Judge KC Bisoi /Secretary CRLREV No.1152 of 2014 Page 9 of 9