Madhya Pradesh High Court
Abdul Majid Khan vs N.M. George And Anr. on 4 April, 2002
Equivalent citations: 2002(3)MPHT514
ORDER S.P. Khare, J.
1. This is a revision by the complainant against the judgment dated 30-4-2001 of the Judicial Magistrate First Class, Bhopal in Criminal Case No. 481 of 2000 by which though the accused has been convicted under Section 138 of the Negotiable Instruments Act (hereinafter to be referred to as 'the Act') and sentenced to pay a fine of Rs. 5,000/-, no compensation has been awarded to the complainant as per Section 357(3) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Code').
2. The case of the complainant was that accused N.M. George had issued two cheques dated 30-6-1999 and 15-7-1999 (Ex. P-2 and Ex. P-3) for Rs. 79,000/- and Rs. 36,000/-, respectively in favour of the complainant; these cheques were presented to the drawee bank on 9-8-1999 but these were dishonoured due to insufficiency of funds; the complainant sent the notice Ex. P-7 to the accused but he refused to accept service of the notice; the accused did not make payment of these cheques and therefore the complaint under Section 138 of the Act was filed before the Judicial Magistrate First Class, Bhopal. After trial the Magistrate held the ingredients of Section 138 of the Act as proved and convicted and sentenced the accused as stated above. It is not known whether the accused has filed any appeal or not against his conviction and sentence for this offence.
3. The complainant has filed this revision against the failure of the Magistrate to award compensation to the complainant under Section 357(3) of the Code. Notice was issued to the accused on this revision petition and the learned Counsel for both the sides have been heard on the question of payment of compensation.
4. Section 357(3) of the Code provides that 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. This sub-section has been introduced in order to fill up the lacuna in Sections 545 and 546 of the old Code under which there was no provision to compensate an injured person even in deserving cases, unless fine was imposed as a substantive sentence and the compensation could be only to the extent of the amount of fine. This new provision applies to cases where no fine is imposed as a "part of the sentence". This is borne out from the words "of which fine does not form a part". If the fine has been imposed as a sentence or part of the sentence, the compensation can be awarded under Sub-section (1) to the extent of the amount of fine only. Sub-section (3) can be invoked when fine does not form a part of the sentence.
5. Sub-section (3) of Section 357 of the Code came up for consideration before the Supreme Court in Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127). It has been held in this case that it empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. 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. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay.
6. In K. Bhaskaran v. Sankaran Vidhyan Balan, 2000(1) MPLJ 1 = (1999) 7 SCC 510, the High Court reversing the acquittal convicted the accused under Section 138 of the Act and imposed a sentence of imprisonment for six months and a fine of Rupees One lakh on him. Section 138 provides punishment with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of cheque or with both. The Supreme Court held that the Court cannot obviate the jurisdictional limit prescribed in Section 386 of the Code which provides that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence "by the Court passing the order or sentence under appeal". Section 29(2) of the Code lays down that the Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding five thousand rupees, or of both. The trial in that case was held before a Judicial Magistrate First Class and he could not have imposed a fine exceeding Rs. 5,000/- and therefore the High Court while convicting the accused in the same case could not impose a sentence of fine exceeding the said limit. It has been further held by the Supreme Court that the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. After referring to the earlier decision in Hari Kishan v. Sukhbir Singh (supra) it has been observed that there is need for making liberal use of this provision. No limit is mentioned in the sub-section and, therefore, a Magistrate can award any sum as compensation. Of course while fixing the amount of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. The Supreme Court upholding the conviction of the offence under Section 138 of the Act, set aside the sentence for enabling the Trial Court to pass orders "on the question of sentence and the compensation, if any payable", after hearing the prosecution and the accused on those aspects.
7. In Pankajbhai Nagjibhai Patel v. State of Gujarat (AIR 2001 SC 567) it has been held that if a Magistrate of the First Class who thinks it fit that the complainant must be compensated with his loss he can resort to the course indicated in Section 357(3) of the Code and he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in Section 357(3) of the Code. The Supreme Court in this case retained the sentence of imprisonment of six months, the fine portion was deleted from the sentence and the accused was directed to pay compensation of Rs. 83,000/- to the complainant.
8. In the present case the Trial Magistrate did not consider the question of awarding the compensation to the complainant under Section 357 of the Code. Therefore, the sentence of fine of Rs. 5,000/- imposed upon the accused is set aside and the case is sent back to the Trial Magistrate to pass fresh order on the question of sentence and the compensation after hearing both the sides in light of the legal position discussed above.
9. In view of the two decisions of the Supreme Court referred above it would be proper that a complaint under Section 138 of the Negotiable Instruments Act, 1881 in which the amount of cheque involved is more than Rs. 5,000/- is presented before the Chief Judicial Magistrate or Additional Chief Judicial Magistrate who have unlimited power to impose the sentence of fine and to award compensation under Section 357, Cr.PC. If such a complaint is entertained by the Judicial Magistrate First Class, then as per Section 29(2), Cr.PC he cannot impose the sentence of fine exceeding Rs. 5,000/- and, therefore, his power to award compensation under Section 357(1), Cr.PC to the complainant out of the amount of fine becomes limited to that amount. Though it is open to the Judicial Magistrate First Class under Section 325, Cr.PC to submit the proceedings to the Chief Judicial Magistrate it is better that the cases involving cheques of more than Rs. 5,000/- are filed before the Chief Judicial Magistrate or Additional Chief Judicial Magistrate at the beginning itself. Therefore, instructions should be issued to the Chief Judicial Magistrate of each district to provide in the distribution memo under Section 15(2), Cr.PC that cases under Section 138 of the Negotiable Instruments Act, 1881 in which cheques exceeding the amount of Rs. 5,000/- have been issued shall be filed before the CJM or ACJM and not before the Judicial Magistrate First Class.
A copy of this order be sent to the Registrar General so that he may obtain the orders of Hon'ble the Chief Justice for issuing such instructions to Chief Judicial Magistrates.