Madras High Court
Ms. Sasi Poly Colours vs M/S. Lakshmi Polymers on 28 March, 2006
Author: S.R.Singharavelu
Bench: S.R.Singharavelu
Before the Madurai Bench of Madras High Court Dated : 28/03/2006 Coram: The Hon'ble Mr.Justice S.R.Singharavelu Criminal Revision Case No.1513 of 2003 Criminal Revision Case No.1517 of 2003 Ms. Sasi Poly Colours, rep. through its Proprietor Sakkaravarthy, No.54, Sappani Koil Street, Madurai 625 001. ... Petitioner in all the Crl.R.Cs. Vs. 1.M/s. Lakshmi Polymers - Partnership concern, rep. through one of its partner Mrs.Sethu Nachiar, Shed No.2 & 3, SIDCO, Industrial Estate, Mela Vasted Chavadi, Thanjavur. 2.Mrs.A.Sethu Nachiar, 3.Mr.S.P.Annamalai W/o S.P.Annamalai Partner, M/s. Lakshmi Polymers - Shed No.2 & 3, SIDCO, Industrial Estate, Mela Vasted Chavadi, Thanjavur. ... Respondents in all the Crl.R.Cs. Criminal Revision Cases under Section 397 R/w 401 of Criminal Procedure Code against the judgment dated 28.7.2003 passed in C.C.No.162 of 2002, 159 of 2002, 160 of 2002, judgment dated 23.7.2003 passed in C.C.No.163 of 2002 and the judgment dated 30.7.2003 passed in C.C.No.161 of 2002 by the Judicial Magistrate No.I, Thanjavur. !Petitioner ... Mr.S.Shanmugavelayutham ^Respondents ... Mr.A.Jeenasenan. :COMMON ORDER
These Criminal Revision Cases arise against the Judgment passed individually in C.C.Nos.162, 159, 160, 163 and 161 of 2002 by the Judicial Magistrate No.I, Thanjanur, thereby passed an order of conviction and sentence against the Respondents/accused for the offence under Section 138 of the Negotiable Instruments Act.
2. The Respondents 2 and 3/ second and third accused who are the husband and wife, are partners of the first accused firm. It is for the dishonour of the cheques issued by them the learned Magistrate has found them guilty for an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced them to undergo Simple Imprisonment till the rising of the Court and to pay a fine of Rs.5000/- each in each case. Since the punitive provision was consummate with the gravity of the offence, the complainant has preferred these Revisions.
3. Mr.S.Shanmugavelayutham, learned counsel for the Revision Petitioner submitted that the three cheques in each of C.C.Nos.162 and 159 of 2002 (Revision Petition Nos.1513 and 1514 of 2003) were equivalent to Rs.15,000/- of each cheque; that in C.C.Nos.160 and 161 of 2002 (Revision Petition Nos.1515 and 1517 of 2003) was more than Rs.12,000/- each, and that in C.C.No.163 of 2002 (Revision Petition No.1560 of 2003) was equivalent to Rs.12,000/-. All the cheques were said to have been issued only by the common accused/Respondents 2 and 3, who are the husband and wife and who are the partners of first Respondent firm, in favour of the same Revision Petitioner/Complainant in all the Revision Cases. The value of the cheques is more than 1.40 lakhs. The grievance of the Revision Petitioner is that sentences to undergo Simple Imprisonment till the rising of Court with a fine of Rs.5,000/- is totally insufficient especially, when no amount was found to have been repaid towards the dishonoured cheques.
4. The learned counsel for the Revision Petitioner/Complainant submitted that in a similar case reported in Pankajbhai Nagjibhai Patel v. State of Gujarat and another (2001 Supreme Court Cases (Cri.) 369) the Hon'ble Supreme Court has converted the fine of Rs.83,000/- as compensation while maintaining the sentence.
5. Before the Supreme Court, in the said case, the question arose was as to whether the Judicial Magistrate of the First Class could have imposed a sentence of fine beyond Rs.5,000/- in view of the limitation contained in Section 29(2) of Code of Criminal Procedure, despite the fact that Section 138 of Negotiable Instruments Act provides the punishment of imprisonment for a term which may be extended two years, or with fine, which may extend (twice the amount of the cheque), or with both.
6. To bye-pass the limitation imposed by Section 29(2) of the Code, it was submitted before the Apex Court that the non obstante clause under Section 142 of the Act and Section 5 of the Code may be considered.
7. It was held by the Supreme Court that the non obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a Magistrate of the First Class beyond what is fixed in Chapter III of the Code (Section 29). Again for the application of Section 5 of the Code it was held that nowhere in the NI Act including Section 142 conferment of any special jurisdiction or power as required under Section 5 of Code was found. Thus, Section 5 of the Code becomes inapplicable to a case of this particular offence.
8. Therefore, the only two remedies that were found available to the Judicial Magistrate of the First Class was to refer the matter to the Chief Judicial Magistrate under Section 325 or to impose compensation under Section 357(3) of the Cr.P.C. In awarding compensation compliance of twice the amount of cheque as provided under Section 138 of the Act may be availed by not imposing it as a fine as provided under Section 138 of the Act, but as a compensation under Section 357(3) of Cr.P.C. as ordered to pay costs in non- cognizable cases like offence under Section 138 of NI Act.
9. Even though it may be imposed as compensation it can be recovered as a fine as per Section 431 of Cr.P.C. , which is as follows:-
"431. Money ordered to be paid recoverable as a fine:- Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:
Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures "under section357", the words and figures' or an order for payment of costs under section 359" had been inserted."
10. The learned counsel for the Revision Petitioner again relied upon a decision reported in Suganthi Suresh Kumar v. Jagdeeshan (2002 Supreme Court Cases (Cri) 344), wherein also Flea-bite sentence (imprisonment till rising of court and fine of Rs.5000/-) was imposed while the total amount covered by the cheques was more than Rs.4.00 lakhs. Referring the earlier case in Pankajbhai Nagjibhai Patel v. State of Gujarat 2001 Supreme Court Cases (Cri) 369), the following observation was made:
"... If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence ... But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrate that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation."
11. While awarding compensation the Apex Court had already held in Hari Krishna v. State of Haryana (AIR 1988 Supreme Court 217) that Courts are to exercise powers of awarding compensation liberally to the victims of offences, so as to meet the ends of justice in a better manner. The following was the observation made therein:
"Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused... We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims.... This power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto... It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system.... The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case.... The Court may enforce the order by imposing sentence in default."
12. The above view of imposing compensation under Section 357(3) Cr.P.C. has been supported by the observation made by our Masdras High Court in a case law reported in Y.Sreelatha @ Roja v. Mukanchand Bothra (2002(1) MWN (Cr.)_DCC (Mad.) 68).
13. In order to avoid the time and other proceedings, I am of the view that the said compensation can be granted by this Court, which is in view of the powers conferred under Section 357(4) , which provides that order under this Section may also be made by appellate Court or by High Court while exercising its power of Revision.
14. These Criminal Revision Cases are allowed. In addition to the sentence of imprisonment and fine as ordered by the trial Court, the Respondents 2 and 3/accused 2 and 3 are further directed to pay compensation of twice the cheque amount of each cheque.
gr.
To The Judicial Magistrate No.I, Thanjavur.