Full Judgment Text
2026:BHC-AS:21287
wp 5770 of 2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.5770 OF 2025
Cyrus Noshirwan Kartak ... Petitioner
versus
State of Maharashtra and Anr. … Respondents
Mr. Mohit Bharadwaj, for Petitioner.
Mr. P.P.Malshe, APP for State.
Ms. Snehankita M. Munj with Mr. Shraddha Kamble i/by Mr. Jatin Karia (Shah)
for Respondent No.2.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 16 APRIL 2026
PRONOUNCED ON : 5 MAY 2026
JUDGMENT :
1. Rule. Rule made returnable forthwith, and, with the consent of the
parties, heard finally.
2. By this Petition under Articles 226 and 227 of the Constitution of India
and Section 482 of the Code of Criminal Procedure, 1973 (the Code), the
Petitioner, who has been convicted for the offence punishable under Section
138 read with Section 141 of the Negotiable Instruments Act, 1881 (N.I.Act,
1881), in 17 complaints, seeks declaration that the Petitioner be deemed to
have been convicted in only one complaint, and, accordingly, the substantive
sentence as well as in default sentence be modified, and, in the alternative, it
be declared that the sentence which the Petitioner has already undergone
shall be treated as the total sentence in all 17 complaints, including the
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sentence in default of payment of compensation awarded by the learned
Magistrate.
3. The Petition arises in the backdrop of the following facts :
2.1 Respondent No.2 – complainant claimed to have sold and delivered
goods to the Mintaur Engineering Private Ltd. (A1), of which the Petitioner
(A2) was the director. Asserting that an amount of Rs.22,68,07,788/- was due
and payable by the accused towards the price of the goods sold and delivered
and in discharge of the said liability, accused Nos.1 and 2 had drawn 60
cheques and, during the period 7 July 2014 to 30 July 2014, those cheques
were dishonoured upon presentment, the complainant (R2) lodged 17
complaints on 12 September 2014 before the same Court.
2.2 Post completion of the trial, in all 17 complaints, by separate judgments
delivered on the same day i.e. 9 May 2017, by the learned Metropolitan
rd
Magistrate, 63 Court, Andheri, the Petitioner came to be convicted for the
offence punishable under Section 138 read with Section 141 of the Act, 1881
and sentenced to suffer simple imprisonment for 15 months and also pay
distinct amounts of compensation under Section 357(3) of the Code, 1973,
and, in default of payment of compensation, suffer simple imprisonment for 12
months in each case. It was further directed that the substantive sentences in
all the 17 complaints would run concurrently. Whereas the default sentence in
each of the cases shall run consecutively.
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2.3 Being aggrieved, the Petitioner preferred 17 appeals before the Court of
Session, at Mumbai. By separate judgments and orders of even date i.e. 17
January 2025, the learned Additional Sessions Judge, Dindoshi, dismissed all
the appeals affirming the judgment of conviction and order of sentence
passed by the learned Metropolitan Magistrate in each of the complaints.
2.4 It seems, the orders passed by the Appellate Court have attained
finality.
2.5 By this Petition, the Petitioner asserts, there was no reason as to why
17 complaints were lodged. In fact, the transaction between the parties was
one and not indivisible. Therefore, the complainant ought to have lodged only
one complaint for the dishonour of all the cheques and the accused could
have been prosecuted and punished for having committed the offence
punishable under Section 138 read with Section 141 of the Act, 1881, once
only. Why a particular number of cheques were included in one particular
complaint was not disclosed.
2.6 The Petitioner avers, the learned Magistrate as well as the learned
Additional Sessions Judge were in error in passing separate orders of
conviction and sentence in all of the 17 complaints, though all the cheques
were drawn as a part of the same transaction. Resultantly, separate orders of
conviction and sentence in each of the 17 complaints, are manifestly illegal.
In any event, the learned Magistrate committed a grave error in law, in
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awarding sentence of 12 months imprisonment in default of payment of
compensation in each of the complaints, in teeth of the provisions contained
in Section 65 of the Indian Penal Code, 1860. Hence, this Petition for the
aforementioned reliefs.
2.7 Respondent No.2 – complainant has resisted the Petition.
4. I have heard Mr. Mohit Bharadwaj, the learned Counsel for the
Petitioner and Mr. Jatin Karia (Shah), the learned Counsel for Respondent
No.2 – complainant and Mr. Malshe, learned APP for the State, at length. With
the assistance of the learned Counsel for the parties, I have also perused the
material on record.
5. Mr. Bharadwaj, the learned Counsel for the Petitioner, canvassed a
two-pronged submission. First, the initiation of prosecution for the offence
punishable under Section 138 read with Section 141 of the Act, 1881 in 17
distinct complaints was malafide. The complainant has evidently misused the
custody of 60 cheques. In effect, there was only one transaction of purported
sale and delivery of the goods by the complainant to the accused and the
latter allegedly owed a consolidated amount towards the price of the goods
sold and delivered. In fact, the demand notice issued on behalf of the
complainant referred to the outstanding amount of Rs.22,68,07,788/- only.
Without any specification and bifurcation of the amount for which the cheques
were drawn, the cheques were arbitrarily included in one complaint. Nor there
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was any co-relation of the cheques included in one complaint with the
invoices, etc. The alleged offence was committed as a part and parcel of one
and the same transaction. Therefore, the very prosecution of the Petitioner in
17 complaints was legally infirm. If at all, Mr. Bharadwaj would urge, the
accused could have been convicted for only one count of commission of the
offence punishable under section 138 read with Section 141 of the Act, 1881,
and not in 17 complaints.
6. Second, Mr. Bharadwaj would urge, the imposition of sentence of 12
months in default of payment of compensation under Section 357(3) of the
Code, in each of the complaints, was clearly illegal. Since the offence
punishable under Section 138 of the Act, 1881, entails maximum punishment
of two years imprisonment, the learned Magistrate could not have imposed
sentence in default exceeding six months, in view of the mandate contained in
Section 65 of the IPC. The imposition of default sentence of 12 months in
each of the complaints and making all the sentences in default to run
consecutively, has caused grave prejudice to the Petitioner as the Petitioner
would be required to suffer 17 years of imprisonment in default of payment of
compensation. Mr. Bharadwaj would, therefore, urge that the impugned
orders of sentence passed by the learned Magistrate and affirmed by the
learned Sessions Judge are mechanical and deserve to be quashed and set
aside.
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7. To buttress the aforesaid submissions, Mr. Bharadwaj placed a very
strong reliance on the judgment of a learned Single Judge of the Delhi High
1
Court in the case of Sanjay Vasudeva V/s. State of NCT of Delhi and Anr. .
8. In opposition to this, Mr. Jatin Karia, learned Counsel for Respondent
No.2 – complainant would submit that the instant writ petition does not
deserve to be entertained. It was urged that the Petitioner has filed a single
Petition assailing the orders passed by the learned Magistrate and the
learned Additional Sessions Judge in 17 distinct proceedings, and, therefore,
in the absence of an independent challenge to each of the orders passed by
the learned Additional Sessions Judge, a single Petition cannot be
entertained.
9. Secondly, Mr. Karia would submit that the impugned orders passed by
the learned Sessions Judge in appeal against orders of conviction and
sentence passed by the learned Magistrate are revisable. In the face of the
statutory remedy, this Court need not exercise its supervisory and inherent
jurisdiction, submitted Mr. Karia.
10. On the merits of the matter, Mr. Karia would urge, the claim of the
Petitioner that all the cheques were given in discharge of one and the same
liability, is factually incorrect and legally unsustainable. An effort was made by
Mr. Karia to co-relate the cheques which were the subject matter of 17 distinct
1 CRL M.C. 3340 of 2023 dt. 19 August 2025
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complaints with the distinct underlying invoices raised by the complainant.
11. Refuting the submissions of Mr. Bharadwaj that there was no reason to
file 17 complaints, Mr. Karia would urge, the demand notice and the
respective complaints contain adequate averments in regard to the distinct
transactions in discharge of the liability incurred whereunder, separate
cheques were drawn and, resultantly, separate complaints were filed. Mr.
Karia placed reliance on a decision of the Supreme Court in the case of
2
V.K.Bansal V/s. State of Haryana and Anr. to bolster up the submission
that separate complaints in respect of distinct transactions were in order.
12. Mr. Karia would urge that, it is settled legal position that the sentences
in default of payment of fine, cannot run concurrently. Those sentences are
required to be suffered independently. Thus, the prayer of the Petitioner to
declare that the sentence already undergone by the Petitioner shall be treated
as total sentence in default of payment of compensation qua all the 17
complaints, cannot be acceded. to. Reliance was placed by Mr. Karia on a
judgment of the learned Single Judge of the Kerala High Court in the case of
3
C.T.K. Chandran V/s. State of Kerala and Ors.
13. I have given anxious consideration to the aforesaid submissions
canvassed across the bar. Before adverting to the core controversy that
crops up for consideration, it may be apposite to note few uncontroverted
2 (2013) 7 SCC 211
3 2020 SCC Online Ker 1900
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facts. Incontrovertibly, the complainant had lodged 17 complaints for the
offence punishable under Section 138 read with Section 141 of the Act, 1881,
against the accused No.1 company and the Petitioner (A2), on one and the
same day and before the same Court. Indisputably, all those complaints were
decided on the same day i.e. 9 May 2017 by separate judgments. Accused
Nos.1 and 2 were found guilty of the offence punishable under Section 138
read with Section 141 of the Act, 1881. The Petitioner (A2) was sentenced to
suffer simple imprisonment for 15 months and the accused No.1 and the
Petitioner were directed to pay compensation specified in each of the
complaints under Section 357(3) of the Code and in default of payment of
compensation, the Petitioner (A2) was sentenced to suffer Simple
Imprisonment for 12 months in each of the complaints. Learned Magistrate
directed that the substantive sentence in all the 17 complaints would run
concurrently. Sentence in default of payment of compensation would,
however, run consecutively. It is not in dispute that, in the appeals preferred
by the accused, the learned Additional Sessions Judge found no reason to
interfere with the judgments and orders passed by the learned Magistrate,
even in regard to the sentence.
14. In the backdrop of the aforesaid facts, the first question that comes to
the fore is, whether the accused could have been prosecuted and punished
separately in 17 distinct complaints. The answer to the aforesaid question
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hinges upon a further question as to whether, all the 60 cheques were drawn
as a part of one and the same transaction. It would be contextually relevant
to note the case set up by the complainant in the statutory demand notice,
which preceded the complaints, and the averments in the complaints. In the
statutory notice, it was claimed that, towards the price of the goods sold and
delivered by the complainant to accused No.1 Company, a sum of
Rs.22,68,07,788/-, was due and payable and towards the discharge of the
said liability, the accused has drawn distinct cheques referred to in each of the
complaints.
15. Likewise, in the complaints, it was alleged that a sum of
Rs.22,68,07,788/- was outstanding towards the goods sold and delivered by
the complainant to the accused No.1, and the cheques drawn towards the
payment of the price of the goods sold and delivered were dishonoured on
presentment. It could be urged that, though the total outstanding amount was
the same, the cheques drawn towards the discharge of the liability in part, in
each of the complaints were presented and dishonoured on different dates
giving rise to distinct causes of action for lodging separate complaints.
16. Nonetheless, were the courts below required to pose unto themselves
the question as to whether, despite finding the accused guilty of the offences
punishable under Sections 138 read with Section 141 of the Act, in all the 17
complaints, the accused could have been sentenced to suffer imprisonment
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on one count of the charge and awarded consolidated compensation on the
basis of the aggregate amount covered by the dishonoured cheques, and,
consecutively, one sentence in default of payment of compensation ?
17. Mr. Karia attempted to demonstrate that, 17 complaints pertained to
different transactions evidenced by distinct invoices and delivery challans. A
chart of the invoices and delivery challans, which formed the underlying
transactions in the discharge of liability towards which the cheques included in
different complaints were drawn, was sought to be tendered for the perusal of
the Court.
18. True, this court in exercise of its supervisory writ jurisdiction may not
delve into the thickets of facts as if the very order of conviction for the offence
punishable under Section 138 read with Section 141 of the Act, 1881, was
under challenge. That question could have been legitimately examined; more
elaborately, in the challenge to the orders passed by the learned Sessions
Judge in the appeals if the accused assailed the same by filing properly
constituted proceedings.
19. Ordinarily, the rule of single transaction is resorted to in the matter of
issue of direction to run the sentences concurrently or consecutively. Under
Section 427 of the Code, 1973, the Court is vested with the discretion to
determine whether the sentence would run consecutively or concurrently. The
exercise of discretion is informed by the peculiar facts of the case and the
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predominant factor is, whether the offences have allegedly been committed as
a part of the same transaction.
20. In the case of Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti V/s.
4
Asstt. Collector of Customs and Anr. , the Supreme Court expounded that
the provisions contained in Section 427 relates to administration of criminal
justice and provides procedure for sentencing. The sentencing court is,
therefore, required to consider and make an appropriate order as to how the
sentence passed in the subsequent case is to run. Whether it should be
concurrent or consecutive ? The basic rule of thumb over the years has been
the so-called single transaction rule for concurrent sentences. If a given
transaction constitutes two offences under two enactments generally, it is
wrong to have consecutive sentences. It is proper and legitimate to have
concurrent sentences. But this rule has no application if the transaction
relating to offences is not the same or the facts constituting the two offences
are quite different.
5
21. In the case of State of Punjab V/s. Madan Lal , where the accused
was convicted for the offence punishable under Section 138 of the Act in three
complaints, and sentenced to suffer imprisonment, without giving benefit of
Section 427 of the Code, the Supreme Court upheld the order of the High
Court that the sentence imposed by the Court in all the three complaints shall
4 (1988) 4 SCC 183
5 (2009) 5 SCC 238
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run concurrently.
22. In the case of V.K.Bansal (supra) , the Supreme Court enunciated that,
under Section 427(1) the court has the power and discretion to issue a
direction but in the very nature of the power so conferred upon the Court the
discretionary power shall have to be exercised along the judicial lines and not
in a mechanical, wooden or pedantic manner. It is difficult to lay down any
straitjacket approach in the matter of exercise of such discretion by the
Courts. There is no cut and dried formula for the Court to follow in the matter
of issue or refusal of a direction within the contemplation of Section 427(1).
Whether or not a direction ought to be issued in a given case would depend
upon the nature of the offence or offences committed and the fact-situation in
which the question of concurrent running of the sentences arises.
23. The Supreme Court culled out the proposition, as under :
“16. In conclusion, we may say that the legal position
favours exercise of discretion to the benefit of the prisoner in
cases where the prosecution is based on a single transaction
no matter different complaints in relation thereto may have
been filed as is the position in cases involving dishonour of
cheques issued by the borrower towards repayment of a loan
to the creditor.”
24. In the case at hand, the learned Magistrate has indeed given the
benefit of the provisions contained in Section 427 of the Code, in the matter of
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the substantive sentence of imprisonment of 15 months ordered to be
suffered in each of the 17 complaints. However, the controversy arose on
account of the award of the distinct compensation in each of the complaints
and even more significantly on account of imposition of 12 months sentence
in default of payment of compensation in each of the complaints.
25. In regard to the imposition of the sentence of imprisonment of 12
months in default of payment of compensation, the pivotal questions that arise
for consideration, (i) could the learned Magistrate have awarded
imprisonment of 12 months in default of payment of compensation ? (ii)
whether the order to run sentences in default of payment of compensation
consecutively, was legally sustainable ? And (iii) whether the award of
excessive sentence of imprisonment in default of payment of compensation
was justifiable ?
Limits of sentence in default of payment of fine :
26. A brief recourse to the provisions of the Code of Criminal Procedure,
1973 and the Indian Penal Code, 1860, becomes necessary. Section 30 of
the Code, 1973, deals with the sentence of imprisonment in default of fine. It
reads as under :
“ 30. Sentence of imprisonment in default of fine. - (1)
The Court of a Magistrate may award such term of
imprisonment in default of payment of fine as is authorized
by law :
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Provided that the term -
(a) is not in excess of the powers of the
Magistrate under section 29;
(b) shall not, where imprisonment has been
awarded as part of the substantive sentence, exceed one-
fourth of the term of imprisonment which the Magistrate is
competent to inflict as punishment for the offence otherwise
than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may
be in addition to a substantive sentence of imprisonment
for the maximum term awardable by the Magistrate under
section 29.”
27. Section 65 of the IPC, 1860 prescribes limit of imprisonment for non-
payment of fine. It reads as under :
“ 65. Limit to imprisonment for non-payment of fine, when
imprisonment and fine awardable – The term for which the
Court directs the offender to be imprisoned in default of
payment of a fine shall not exceed one-fourth of the term of
imprisonment which is the maximum fixed for the offence, if the
offence be punishable with imprisonment as well as fine.”
28. A conjoint reading of the aforesaid provisions would indicate that the
Magistrate is empowered to award imprisonment in default of payment of fine,
as is authorized by law. The proviso to sub-section (1), however, restricts the
power of the Magistrate to impose sentence in default of payment of fine.
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Firstly, it shall not be in excess of the powers of the Magistrate under Section
29. Secondly, where the imprisonment has been awarded as a part of the
substantive sentence, default sentence shall not exceed 1/4th of the term of
the imprisonment, which the Magistrate is competent to inflict as punishment
for the offence for which the accused is found guilty.
29. Section 65 of the IPC, 1860, contains an interdict against sentencing
the accused to imprisonment in default of payment of fine, by providing that
such imprisonment shall not exceed the 1/4th of the imprisonment which is
the maximum term of the sentence. Cumulatively, the imprisonment in default
of payment of fine shall not exceed :
(1) 1/4th of the maximum term of imprisonment provided for the offence
in question,
(2) 1/4th of the term of imprisonment, which the Magistrate is
competent to inflict as punishment, even though the offence may entail
greater punishment. For example, an offence punishable under Section 326
of the IPC entailed punishment of imprisonment which may extend to life and,
yet, the Magistrate of First Class cannot impose a sentence of imprisonment
for a term not exceeding three years,
(3) the powers of the Magistrate under Section 29.
30. Reverting to the case at hand, the offence punishable under Section
138 of the NI Act, 1881 entails punishment which may extend to two years, or
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with fine which may extend to twice the amount of cheque or with both. In
view of the provisions contained in Section 65 of the IPC read with Section 30
of the Code, 1973, the maximum sentence in default of payment of fine or
compensation awarded for the commission of an offence punishable under
Section 138 of the NI Act, 1881 would be six months. Learned Magistrate
was, thus, in error in imposing the sentence of 12 months imprisonment in
default of payment of compensation awarded under Section 357(3) of the
Code, 1973. Sentence of 12 months imprisonment is clearly in teeth of the
mandate contained in Section 65 of the IPC and Section 30 of the Code,
1973. These mandates are absolute.
31. A profitable reference in this context can be made to a judgment of the
6
Supreme Court in the case of M.B.Manjegowda V/s. State of Karnataka ,
wherein the Supreme Court enunciated that the mandate of Section 65 of the
IPC is absolutely clear and no default sentence can be awarded in excess of
th
¼ of the maximum punishment prescribed for the offence concerned.
32. In view of the aforesaid position in law, the imposition of 12 months
imprisonment in default of payment of compensation by the learned
Magistrate was clearly illegal. The learned Additional Sessions Judge also
failed to notice the legal infirmity in the sentence in default of payment of
compensation imposed by the learned Magistrate.
6 (2021) 17 SCC 723
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Default Sentence : Consecutive or Concurrent :
33. The legal position on the aspect of the sentences in default in payment
of fine running consecutively and not concurrently, is well recognized. To start
with, Section 64 of the IPC, 1860 provides that, it shall be competent to the
Court which sentences the offender to direct by the sentence that, in default of
payment fo fine, the offender shall suffer imprisonment for a certain term,
which imprisonment shall be in excess of any other imprisonment to which he
may have been sentenced or to which he may be liable under a commutation
of a sentence. Section 64 of the Penal Code, thus, mandates that the
sentence awarded for non-payment of fine, shall be in excess of any other
imprisonment to which the accused may have been sentenced.
34. Sub-section (2) of Section 30 of the Code, provides that the
imprisonment awarded under the said Section may be in addition to the
substantive sentence of imprisonment for the maximum term awardable by
the Magistrate under Section 29. Section 428 of the Code further clarifies the
position by excluding the imprisonment in default of payment of fine, from the
ambit of set off to which the accused is entitled to on account of the period of
detention undergone by him during the investigation, inquiry or trial of the
case. Therefore, the sentences in default of payment of fine or compensation,
cannot be made to run concurrently.
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35. In the case of Sharad Hiru Kolambe V/s. State of Maharashtra and
7
Ors. , the Supreme Court has held that the default sentences cannot be
directed to run concurrently.
Term of Default Sentence :
Justifiability of the nature of the sentence in default of payment of
fine or compensation ?
36. This leads me to the justifiability of the award of 12 months
imprisonment in default of payment of compensation. A sentence in default
of payment of fine is in the nature of disapprobation of the conduct of the
accused in not complying with the order of the Court to pay the fine or
compensation. The sentence in default of payment of compensation is not a
device to enhance the substantive sentence which the Court is empowered to
inflict by way of punishment. A substantive sentence of imprisonment, as a
part of punishment for the offence, and, a sentence in default of payment of
fine are qualitatively different. A default sentence stands on a different footing.
Default sentence is essentially by way of penalty for the failure to abide the
order of the Court to pay fine or compensation. Therefore, while imposing a
sentence in default of payment of fine, the Court should be alive to the object
of the measure of the sentence in default. It can never be imposed by way of
an additional punishment.
7 (2018) 18 SCC 718
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8
37. In the case of Shanti Lal V/s. State of Madhya Pradesh , the
Supreme Court postulated the object of sentence in default of payment of fine
and the considerations which ought to weigh in Court in imposing the default
sentence. The observations in para 31 read as under :
“31…...The term of imprisonment in default of payment of
fine is not a sentence. It is a penalty which a person incurs
on account of non-payment of fine. The sentence is
something which an offender must undergo unless it is set
aside or remitted in part or in whole either in appeal or in
revision or in other appropriate judicial proceedings or
otherwise. A term of imprisonment ordered in default of
payment of fine stands on a different footing. A person is
required to undergo imprisonment either because he is
unable to pay the amount of fine or refuses to pay such
amount. He, therefore, can always avoid to undergo
imprisonment in default of payment of fine by paying such
amount. It is, therefore, not only the power, but the duty of
the court to keep in view the nature of offence,
circumstances under which it was committed, the position of
the offender and other relevant considerations before
ordering the offender to suffer imprisonment in default of
payment of fine.” (emphasis supplied)
38. Following the aforesaid pronouncement, in the case of Sahejadkhan
9
Mahebubkhan Pathan V/s. State of Gujarat , the Supreme Court interfered
with the order of imposition of three years imprisonment in default of payment
8 (2007) 11 SCC 243
9 (2013) 1 SCC 570
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of fine of Rs.1.5 Lakhs, for having committed the offences punishable under
the NDPS Act, 1985 and reduced it to six months. The Supreme Court
reiterated the position in law, as under :
“12. It is clear and reiterated that the term of imprisonment in
default of payment of fine is not a sentence. To put it clear, it
is a penalty which a person incurs on account of non-payment
of fine. On the other hand, if sentence is imposed,
undoubtedly, an offender must undergo unless it is modified
or varied in part or whole in the judicial proceedings. However,
the imprisonment ordered in default of payment of fine stands
on a different footing. When such default sentence is
imposed, a person is required to undergo imprisonment either
because he is unable to pay the amount of fine or refuses to
pay such amount. Accordingly, he can always avoid to
undergo imprisonment in default of payment of fine by paying
such an amount. In such circumstance, we are of the view
that it is the duty of the Court to keep in view the nature of
offence, circumstances in which it was committed, the position
of the offender and other relevant considerations such as
pecuniary circumstances of the accused person as to
character and magnitude of the offence before ordering the
offender to suffer imprisonment in default of payment of fine.
The provisions of Sections 63 to 70 of IPC make it clear that
an amount of fine should not be harsh or excessive. We also
reiterate that where a substantial term of imprisonment is
inflicted, an excessive fine should not be imposed except in
exceptional cases.” (emphasis supplied)
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39. In the case of Sharad Hiru Kolambe (supra) , the Supreme Court
clarified that if the term of imprisonment in default of payment of fine is a
penalty which a person incurs on account of non-payment of fine and is not a
sentence in strict sense, imposition of such default sentence is completely
different and qualitatively distinct from a substantive sentence. In the said
case as well, the Supreme Court interfered with the order of imposition of
default sentence of three years imprisonment for non-payment of fine for
having committed the offences under MCOCA, and reduced it to one year.
40. It is true, the offence punishable under Section 138 of the NI Act, 1881,
stands on a slightly different pedestal. Ordinarily, the justice of the case
demands that the drawer of the cheque be directed to pay the fine or
compensation, as the case may be, to compensate the payee. The
prescription of punishment for the dishonour of a cheque is predominantly for
the purpose of ensuring the sanctity of the cheque as a negotiable instrument
in the commercial transactions. The penal measure primarily subserves the
end of compensatory justice rather than retributive or punitive element.
Nonetheless, while imposing the compensation, the Court ought to have due
regard to the situation in life of the parties, especially that of accused. The
circumstances peculiar to the accused are of critical salience while
determining the quantum of sentence of imprisonment in default of payment
of fine or compensation. The maximum permissible sentence in default of
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payment of compensation may be legitimate. However, the Court must pose
unto itself a question whether that would be reasonable and justifiable in the
facts and circumstances of the given case, for there is an essential distinction
between the permissibility of the action and justifiability thereof.
41. Applying these principles to the facts of the case, I find it rather difficult
to accede to the submission of Mr. Karia that the Petitioner must suffer six
months imprisonment in default of payment of compensation in each of the
cases. The implications of the submission of Mr. Karia are that the Petitioner
shall suffer substantive sentence of imprisonment of 15 months and in
addition, shall suffer eight and half years of imprisonment in default of
payment of compensation. The sole reason being the inability of the
Petitioner to pay the amount of compensation, directed to be paid in each of
the complaints.
42. The submission canvassed by Mr. Karia, in the considered view of this
Court, cannot be countenanced, if the guarantee of right to life and personal
liberty under Article 21 is to be given such an expansive interpretation as it
has received. A procedure which authorises the detention of the convict for
default in payment of compensation for a term of eight and half years, when
the substantive sentence of imprisonment is 15 months only, can only be said
to be ex-facie unreasonable, excessively harsh and shockingly
disproportionate to the non-compliance of the order to pay the compensation.
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43. At this juncture, the purpose of imposition of sentence in default of
payment of fine assumes salience. A system which detains the convict for his
inability to pay the compensation ordered by the Court for an inordinately long
period without anything more, may not pass the muster of reasonable and fair
procedure. The approach to be adopted by the Court when a person is
sought to be detained in a prison for failure to pay the amount ordered to be
paid by the Court, delineated by the Supreme Court in the case of Jolly
10
George Varghese and Anr. V/s. The Bank of Cochin , albeit in a different
context, deserves to be noted. In the context of the execution of the decree
for payment of money by detaining the judgment debtor in prison, the
Supreme Court enunciated the law, as under :
“10. Equally meaningful is the import of Art. 21 of the
Constitution in the context of imprisonment for non-payment
of debts. The high value of human dignity and the worth of
the human person enshrined in Art. 21, read with Arts. 14
and 19, obligates the State not to incarcerate except under
law which is fair, just and reasonable in its procedural
essence. Maneka Gandhi case as developed further in Sunil
11
Batra v.s Delhi Administration , Sita Ram and Ors. V/s.
12 13
State of U.P. and Sunil Batra V/s. Delhi Administration
lays down the proposition. It is too obvious to need
elaboration that to cast a person in prison because of his
poverty and consequent inability to meet his contractual
10 (1980) 2 SCC 360
11 (1978) 4 SCC 494
12 (1979) 2 scc 656
13 W.P.No.1009 of 1979 decided on December 20, 1979
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liability is appalling. To be poor, in this land of daridra
Narayana, is no crime and to 'recover' debts by the
procedure of putting one in prison is too flagrantly violative of
Art. 21 unless there is proof of the minimal fairness of his
wilful failure to pay in spite of his sufficient means and
absence of more terribly pressing claims on his means such
as medical bills to treat cancer or other grave illness.
Unreasonableness and unfairness in such a procedure is
inferable from Art.11 of the Covenant. But this is precisely
the interpretation we have put on the Proviso to s. 51 C.P.C.
and the lethal blow of Art. 21 cannot strike down the
provision, as now interpreted.” (emphasis supplied)
44. The case of Sanjay Vasudeva (supra), on which reliance was
placed by Mr. Bharadwaj, appears to be on all four with the facts of the case
at hand. In the said case, the accused therein was convicted in as many as
82 complaints for the offence punishable under Section 138 of the N.I.Act,
1881. Despite aggreging with the correctness of the submission that, none of
the complainants have received the compensation awarded by the Courts
owing to the accused’s failure to deposit the fine amount, the learned Single
Judge of the Delhi High Court, observed as under :
“19. Turning to the relief sought by the petitioner, it is
indeed correct, as urged by the learned APP, that despite
succeeding in protracted litigation, none of the 82
complainants have received compensation awarded by the
Courts, owing to the petitioner’s failure to deposit the fine
amounts. However, I am firmly of the view that it would be
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unjust and disproportionate to keep the petitioner
incarcerated any further on account of default in payment of
fine.
………
21. Accordingly, the facts and circumstances in the
present case particularly the sheer adversity and poverty
which the petitioner is currently suffering, make out a case
where this court, in exercise of its inherent jurisdiction under
section 528 of the BNSS, can reduce the sentence of
imprisonment awarded in default of payment of fine and
direct that sentences already undergone by the petitioner in
default of payment of fine, be treated as the total
punishment in default of payment of fine in the aforesaid 82
cases.
………..
24. The default sentence imposed on the applicant has
become excessively harsh, albeit unintentionally.
Illustratively, if this case had involved only a single cheque
of Rs. 1.3 crores, the petitioner’s position would have been
far less onerous. Ignoring the period of imprisonment
already undergone would effectively subject the applicant to
what is virtually a life sentence—approximately 17 years [8
+ 9 = 17]. He has already endured seven years and ten
months in custody, and yet, under the default sentence, he
is required to serve an additional nine years and several
months. Such an outcome is manifestly disproportionate and
cannot be justified.”
45. The fact that the sentence in default of payment of fine, even if
undergone by the accused, does not absolve the accused of the liability to
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pay the said amount is also a relevant consideration. Section 421 empowers
the Court even if the offender has undergone imprisonment in default to issue
a warrant for recovery of the compensation ordered to be paid under Section
357 of the Code. If the amount of compensation ordered to be paid to the
complainant can still be recovered by resorting to the procedure envisaged by
the Code, further detention of the Petitioner to undergo in default sentence
appears wholly unsustainable.
46. The imprisonment certificate dated 15 April 2026 issued by the
Superintendent, Nashik Road Central Prison, indicates that the Petitioner has
undergone total imprisonment of seven years, six months and five days. The
Petitioner has earned remission of 719 days as of 31 March 2026. The total
period of imprisonment undergone by the Petitioner including the admissible
remission would, thus, come to nine years, six months and five days.
47. In the backdrop of the aforesaid position in law and the facts of the
case, this Court considers the further detention of the Petitioner to serve the
default sentence would be unjust, unconscionable and unjustifiable. I am,
therefore, inclined to allow the Petition and modify the sentence in default of
payment of compensation to the period of sentence already undergone by the
Petitioner in default of payment of compensation in all the complaints.
48. Hence, the following order :
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ORDER
(i) The Writ Petition stands allowed.
(ii) The order passed by the learned Magistrate sentencing the
Petitioner (A2) to imprisonment for a period of 12 months in default of
payment of compensation in each of the 17 complaints, stands modified to the
sentence already undergone by the Petitioner in default of payment of
compensation.
(iii) For the said purpose, the total sentence of imprisonment in
default of payment of compensation in all the 17 complaints stands reduced
by the proportionate adjustment and equalisation of the period of
imprisonment already suffered by the Petitioner in default of payment of
compensation.
(iv) The Petitioner – Cyrus Noshirwan Kartak, be released forthwith,
if not required to be detained in any other case.
(v) Rule made absolute in the aforesaid terms.
All concerned to act on an authenticated copy of this judgment.
( N.J.JAMADAR, J. )
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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 05/05/2026 18:43:56