SOMNATH SARKAR vs. UTPAL BASU MALLICK

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1651 OF 2013 [Arising out of S.L.P.(Crl.)No.6191 of 2011] Somnath Sarkar ..Appellant Versus Utpal Basu Mallick & Anr. ....Respondents J U D G M E N T VIKRAMAJIT SEN, J. 1. Leave granted. The Appellant before us makes what is essentially a mercy plea – to reduce the sum of Rs.80,000/- imposed JUDGMENT on him by way of compensation in lieu of the six months sentence of incarceration imposed by the Metropolitan Magistrate, Calcutta. The Appellant has admittedly issued a cheque in favour of the Respondent No.1-complainant for a sum of Rs.69,500/-, which cheque on presentation was dishonourned with the endorsement ‘insufficient funds’. After due compliance with the statutory provisions contained in the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’) prosecution was commenced and the 1 Page 1 aforementioned punishment under Section 138 thereof came to be passed. The payment of compensation amounting to Rs.80,000/- has admittedly been received by the complainant. The Appellant preferred an appeal to the Additional District & Sessions Judge, Calcutta who by judgment dated 5.7.2004 dismissed the appeal and ordered the Appellant to surrender within 15 days. In these circumstances, Criminal Revision Record No.2447 of 2004 was filed in the High Court of Calcutta which was pleased to substitute the six months’ sentence by an additional payment of Rs.69,500/-. C.R.R. No.2447 of 2004 was heard and decided along with C.R.R. No.2865 of 2004 also filed by the Appellant. Accordingly, as against the cheque amount of Rs.69,500/- the Appellant is liable to the extent of Rs.1,49,500/-. Faced with the prospects of jail the Appellant had earlier agreed to payment of the additional sum of Rs.80,000/- and for these reasons his plea for reduction thereto was JUDGMENT turned down by the High Court in the impugned order. The Appellant was directed to pay a sum of Rs.19,500/- by May 31, 2011 and the balance of Rs.50,000/- in five equal instalments thereafter. Unfortunately, despite repeated readings of the Orders and related documents, the total liability of the Appellant is not clear as also the payments made till date. 2. Although the learned counsel for the complainant has 2 Page 2 appeared before us and has endeavoured to persuade us to uphold the impugned order, we find it unnecessary to hear him since the complainant has indubitably already received the sum of the dishonourned cheque alongwith the compensation thereon aggregating Rupees Eighty Thousand. 3. It seems to us that since the Appellant has already faced prosecution in the Magistracy in which he presented virtually no defence, and has thereafter filed an appeal before the Sessions Court, and subsequently two Revisions before the High Court, the ends of justice will be met, were he be directed to pay a sum of Rs.20,000/- only, in default, of which he would be liable to undergo the punishment of simple imprisonment for a term of six months as imposed by the aforementioned Magistrate. The said payment should be made within eight weeks. 4. As already expressed, the language employed by the High JUDGMENT Court in the impugned order raises a doubt as to the total liability of the Appellant. A perusal of the sentence passed by the Trial Court as well as the Sessions Judge while dismissing the Appeal also does not completely clarify the position. The cheque amount is Rs.69,500/- and in this regard a sum of Rs.80,000/- has been directed towards compensation which, by virtue of Section 357(3), Code of Criminal Procedure (Cr.P.C.) would be receivable by the 3 Page 3 complainant. It appears that this sum of Rs.80,000/- has been received by the complainant. The use of the word, ‘additional sum’ in the impugned order has led to considerable confusion. To put the matter finally at rest, we hold that the total compensation payable under Section 138 of the N.I. Act read with Section 357(3), Cr.P.C. is Rs.80,000/-. i.e., the cheque amount of Rs.69,500/- together with Rs.10,500/- which may be seen as constituting interest on the dishonoured cheque. In the arguments addressed before us there appears to be no controversy that this sum has been duly paid to the Respondent-complainant. A reading of the impugned order appears to indicate that the payment of further sum of Rs.69,500/-, in the instalments indicated in that order would be over and above the said sum of Rs.80,000/-. This would violate Section 138 of the N.I. Act inasmuch as it would exceed the double of the cheque amount. This leads us to conclude that the intention of the High Court was that JUDGMENT upon deposit/payment of the further sum of Rs.69,500/- (in addition to the earlier sum of Rs.80,000/-), the sentence of imprisonment for six months would stand withdrawn. Learned counsel for the Appellant has fervently submitted that the Appellant is a man of limited financial means and this position has not been controverted. Palpably, the convict has filed appeals all the way to the Apex Court which would have entailed further expenses of no mean measure. 4 Page 4 We think that with the receipt of Rs.80,000/-, the complainant has received compensation for the dishonoured cheque as per the adjudication of the Trial Court. In these circumstances, any further payment would be in the nature of fine. Accordingly, we clarify that the Appellant must pay a sum of Rs.80,000/- receivable by the complainant within four weeks from today, if not already paid. The Appellant is also sentenced to payment of a fine of Rs.20,000/-, payable within eight weeks from today, and on the failure to make this payment, would be liable for imprisonment for six months. The Appeal is allowed in these terms. .................................J . [T.S. THAKUR] ………………….…J. [VIKRAMAJIT SEN] New Delhi October 07, 2013 JUDGMENT 5 Page 5 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1651 OF 2013 (Arising out of S.L.P. (Crl.) No.6191 of 2011) Somnath Sarkar … Appellant Versus Utpal Basu Mallick & Anr. …Respondents J U D G M E N T T.S. THAKUR, J. I have had the advantage of going through the order proposed by my esteemed Brother Vikramajit Sen, J. While I entirely agree that the order passed by the High Court directing payment of a sum of Rs.69,500/- over and above JUDGMENT Rs.80,000/- already paid under the orders of the Court to the complainant towards compensation needs to be modified to bring the same in tune with Section 138 of Negotiable Instruments Act, 1881, I would like to add a few words of my own in support of that view. Before I do that, I may briefly set out the factual backdrop in which the appellant came to be prosecuted and convicted under the provision mentioned 6 Page 6 above. The appellant, who is the proprietor of M/s Tarama Medical Centre, Tarakeswar, Hooghly, issued a cheque in

th dated 6 September, 1999 drawn on SBI, Tarakeswar Branch for Rs.69,500/- towards discharge of existing liabilities. When the cheque was presented by the complainant through his th banker on 6 September, 1999 it was dishonoured for “insufficient funds”, which dishonour was communicated to th the complainant on 7 October, 1999. The complainant respondent issued a demand notice, which was received by the accused appellant within the prescribed limitation period. However, since the accused failed to repay the amount within JUDGMENT time, the complainant filed a complaint under Section 138 of th the Negotiable Instruments Act, 1881 on 9 December, 1999. th The Metropolitan Magistrate, 6 Court, Calcutta convicted the appellant for the offence under Section 138, Negotiable Instruments Act and sentenced him to six months 7 Page 7 simple imprisonment and to pay compensation of th Rs.80,000/- under Section 357(3) CrPC vide order dated 10 December, 2003 in Case No.C-4490/99. Both the conviction

Sessions Judge of the Fast Track Court in appeal vide order th dated 5 July, 2004. In a revision petition filed against the said two orders, the High Court upheld the conviction, but imposed an additional fine of Rs.69,500/- (cheque amount) in lieu of six months simple imprisonment awarded by the Metropolitan Magistrate. That the appellant has paid the compensation amount of Rs.80,000/- in instalments of Rs.30,000/- and Rs.50,000/- is not disputed before us and is th evidenced by an affidavit dated 20 November, 2006 filed in JUDGMENT CRR No.2447 of 2004 before the Calcutta High Court besides th a receipt dated 14 February, 2008 respectively, which are on record. The only question that falls for our determination in the above backdrop is whether the High Court was justified in directing payment of an additional fine of Rs.69,500/- which 8 Page 8 happens to be the cheque amount also, having regard to the fact that the appellant has already paid the sum of Rs.80,000/- to the complainant towards compensation in

There is no gainsaying that the High Court could have sentenced the appellant to imprisonment extending up to two years and/or to payment of fine equivalent to twice the cheque amount. This is evident from the provisions of Section 138 which reads as under: “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 extend to one year, 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- JUDGMENT (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 9 Page 9

In as much as the High Court set aside the sentence of six months simple imprisonment awarded to the appellant there is no quarrel nor any challenge mounted before us. That part of the order could be assailed by the complainant who has not chosen to do so. Whether or not the High Court was justified in setting aside the sentence of imprisonment JUDGMENT awarded to the appellant is, therefore, a non-issue before us. Having said that we have no hesitation in adding that the High Court may have indeed been justified in setting aside the sentence of imprisonment awarded to the appellant in the facts and circumstances of the case. We say so having regard to a three-Judge Bench decision of this Court in 10 Page 10 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

This Court also took note of the number of cases JUDGMENT involving dishonor of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonor of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended to ensure quick 11 Page 11 recovery of the amount payable under the instrument. The following passages from the decision are in this regard apposite:

JUDGMENT (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 12 Page 12 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

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 JUDGMENT 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 of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage. 13 Page 13 Coming then to the question whether the additional amount which the High Court has directed the appellant to pay could be levied in lieu of the sentence of imprisonment,

foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the Court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. The High Court has, in the case at hand, obviously overlooked the statutory limitation on its power to levy a fine. It appears to have proceeded on the basis as though payment of JUDGMENT compensation under Section 357 of CrPC is different from the power to levy fine under Section 138, which assumption is not correct. The second aspect relates precisely to the need for appreciating that the power to award compensation is not available under Section 138 of Negotiable Instruments Act. It 14 Page 14 is only when the Court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process comprises two

and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of Rs.80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine JUDGMENT amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same. Viewed thus, the direction of the High Court that the appellant shall pay a further sum of Rs.69,500/- does not appear to be legally sustainable as rightly observed by my erudite Brother 15 Page 15 Vikramajit Sen, J. I, therefore, entirely agree with my Brother’s view that payment of a further sum of Rs.20,000/- towards fine, making a total fine of Rs.1,00,000/- (Rupees

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. JUDGMENT ………………….……….…..…J. (T.S. Thakur) New Delhi October 7, 2013 16 Page 16