ORDER
Ashim Kumar Roy, J.
1. The petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentence to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for 3 months and to pay a compensation of Rs. 5 lakhs in a trial held before the learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas. The said order of conviction and sentence was challenged in a Criminal Appeal before the Sessions Court, South 24-Parganas at Alipore and in the said appeal her order of conviction although was confirmed but the sentence of fine was set aside and the amount of compensation has been reduced to Rs. 3,90,780/-.
In this criminal revision the petitioner challenged the aforesaid judgment and order of the Appellate Court.
2. The trial of the petitioner was held on a charge under Section 138 of the Negotiable Instruments Act before the Learned Sub-Divisional Judicial Magsitrate, Alipore, South 24-Parganas in connection with the case No. C-914/2000, on the following allegations.
The accused Krishna Gupta the proprietor of Krishna Associates Private Limited, the petitioner herein purchased finished leather goods worth of Rs. 3.90,780/- from the company of the complainant and in discharge of such liability the accused issued 4 bearer cheques in favour of the company of the complainant. All the four cheques drawn on Federal Bank Limited, Ballygunge Branch were presented for encashment within its period of validity but the said cheques were returned unpaid with the remarks ‘account closed’. Thereafter, the complainant within the statutory period issued a notice under Section 138(b) of the Negotiable Instrument Act demanding payment of the cheque amount from the accused but in spite of receipt of such demand notice no payment has been made.
3. In course of trial, the complainant examined three witnesses in support of his case, Although the accused during her examination under Section 133 of the Code of Criminal Procedure expressed her intention to examine witness in her defence but examined none in spite of sufficient opportunity given to her by the Trial Court.
4. Mr. Joymalya Bagcht, the Learned Advocate appearing on behalf of the petitioner challenged the order of conviction of the petitioner on the grounds,
a) The order of conviction has been vitiated since the Learned Court below took congnizance of the offence before the expiry of 15 days from the date of receipt of demand notice, i.e. before the cause of action arose.
b) The cheques in question are all dated April 7, 1999 and was revalidated on May 2, 2000, but the account on which such cheque was drawn were closed on and from March 28, 2000. As such it cannot be said the said cheques were drawn on an existing account and accordingly no offence under Section 138 of the N.I. Act can said to have been made out.
c) The liability of the accused persons against the cheques in question was never proved.
d) The cheques if at all were issued against running transaction and not against any specific transaction.
e) Before the presentation of the cheques in the bank the petitioner by a letter in writing requested the complainant not to present the same for encashment.
i) Mr. Bagchl in course of his submission relied on the following decisions,
i) Ashok Hegde v. Jathin V. Attawan reported in 1997 (3) Crimes 445 : 1997 Cri LJ 3691.
ii) Sardar Singh v. Karam Singh reported in 1997 Cri LJ 3751.
iii) Chittoor Dist. Co-operative Marketing Society Ltd. v. Sri Jyoti Trading Company and Anr. reported in 1997 (4) Crimes 493.
5-6. Mr. Sataroop Purakayasta, the learned Advocate appearing on behalf of the complainant strongly refuted the correctness of the submissions made by Mr. Bagchl and relied on the following decisions,
i) NEPC Micon Ltd. and Ors. v. Magma Leasing Ltd. reported in 1999 SCC (Cri) 524 : 1999 Cri LJ 2883.
ii) Narsing Das Tapadia v. Coverdhan Das Partani and Anr. .
Mr. Swapan Kumar Mallick, the learned Advocate appearing on behalf of the State supported the contention of the Learned Advocate of the opposite party No. 2.
7. This Is a criminal revision against the order of conviction upheld in appeal. It is a settled legal position that unless there Is any glaring features of manifest illegality in the decisions of the Trial Court and the Appellate Court, which would be otherwise tantamount of gross miscarriage of Justice, In exercise of its revisional Jurisdiction it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the self-same evidence which has already been appreciated by the Trial Court and the Appellate Court. At this stage it would also not be proper for the High Court to embark upon an in-depth re-examination of the evidence and coming to its own conclusion contrary to the concurrent findings of the two Courts below.
8. Heard, the rival contentions of the parties. Perused the materials on records. Considered.
9. I find no merits in the submissions of Mr. Bagchi as the cognizance was taken before the expiry of the statutory period contemplated in Section 138(c) of the N. I. Act, the entire trial has been vitiated and consequently the conviction of the petitioner is liable to be set aside. The statutory period prescribed in Section 138(c) of the Negotiable Instrument Act is only aimed to afford an opportunity to the drawer of the cheque for making payment of the cheque amount within that period, at the risk of penal consequences. However when no payment has been at all made and the accused in his defence denied that such cheque was issued in discharge of any legally enforceable debts i.e. his liability of payment of cheque amount has been denied, it cannot be said that the accused has suffered any prejudice by initiation of her prosecution before the expiry of statutory period within which he could have made the payment. The question would have been otherwise if payment is made even subsequently. In any event, the making of the complaint before the expiry of the period within which the accused is statutorily permitted to repay the cheque amount, when not paid at all, would not absolve the accused from his criminal liability for the offence committed under Section 138 of the Negotiable Instruments Act.
The submissions of Mr. Bagchi that the cheque was drawn on an account which already stands closed cannot attract the mischief of Section 138 of the Negotiable Instruments Act is of no merit. In the case of NEPC Micon Ltd. and Ors. v. Magma Leasing Ltd. reported in 1999 SCC (Cri) 524 : 1999 Cri LJ 2883, relied upon by the Learned Advocate of the opposite party. The Hon’ble Apex Court held as follows:
(7) Further, the offence will be complete only when the conditions in provisos (a), (b) and (c) are complied with. Hence, the question is, in a case where a cheque is returned by the bank unpaid on the ground that the “account is closed”, would if mean that the cheque is returned as unpaid on the ground that “the amount of money standing to the credit of that account is insufficient to honour the cheque? In our view, the answer would obviously be in the affirmative because the cheque is dishonoured as the amount of money standing to the credit of “that account” was “nil” at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of “that account” on the relevant date when the cheque was presented for honouring the same. The expression “the amount of money standing to the credit of that account is insufficient to honour the cheque” is a genus of which the expression “that account being closed” is a specie. Alter issuing the cheque drawn on an account maintained, a person, if he closes “that account” apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in “that account”. Further, the cheque is to be drawn by a person for payment of any amount of money due to him “on an account maintained by him” with a banker and only on “that account” the cheque should be drawn. This would be clear by reading the section along with proviso (a), (b) and (c).
(8) Secondly, proviso (c) gives an opportunity to the drawer of the cheque to pay the amount within 15 days of the receipt of the notice as contemplated in proviso (b). Further, Section 140 provides that it shall not be a defence in prosecution for an offence under Section 138 that the drawer has no reason to believe when he issued the cheque that the cheque may be dishonourd on presentment for the reasons stated in that section. Dishonouring the cheque on the ground that the account is closed is the consequence of the act of the drawer rendering his account to a cipher. Hence, reading Sections 138 and 140 together, it would be clear that dishonour of the cheque by a bank on the ground that the account is closed would be covered by the phrase “the amount of money standing to the credit of that account is insufficient to honour the cheque.
10. The submissions of Mr. Bagchi that the cheque being drawn on a non est account, the same shall not attract the penal consequences of Section 138 of the Negotiable Instruments Act, if accepted would completely frustrate the very object of insertion the said provisions by Banking, Public Financial Institutions and Negotiable Instrument Law (Amendment) Act, 1988. In any event, this is not a case of drawing of a cheque on a defunct account but revalidation of cheque which was drawn on an existing account. The revalidation of cheque, as in the instant case by extending the period of validity secure such cheque against loss of enforceability and sustain its validity.
11. So far as the rest of submissions of Mr. Bagchi is concerned those are against the concurrent findings of facts arrived at by the Courts below. Since, on examination of the same I do not find any manifest illegalities in such concurrent findings, I am not inclined to interfere with the same.
In the result, I do not find any merit in the instant criminal revision the same stands dismissed. The order of conviction of the appellant under Section 138 of the Negotiable Instruments Act stands confirmed.
12. Last but not least, in the instant case I found the conviction of the appellant under Section 138 of the Negotiable Instruments Act being upheld in appeal and order of sentence of fine being set aside there is nothing except compensation in consequences of conviction. The conviction entails imposition of sentence unless imposition of sentence is kept in abeyance by operation of law. The Negotiable Instruments Act provides for sentence of imprisonment and sentence of fine. The compensation is not the part of any sentence neither it is a substitute of sentence but in addition thereto. The provisions of Section 357(3) of the Code makes it abundantly clear that when Court imposes a sentence may order the accused person to pay by way of compensation such amount as may be specified, when fine does not form the part of the sentence. Therefore, no compensation can be awarded without being preceded by imposition of sentence and obviously not by imposition of sentence of fine. In the facts and circumstances of this case, I am of the view this case does not deserve to be dealt with under Section 360 of the Code of Criminal Procedure. While the order of conviction stands confirmed, the order of awarding compensation is set aside only on the ground that the same was not preceded by imposition of any sentence. The case is remanded back to the Trial Court to pass necessary order only on the question of sentence and compensation in accordance with law without being influenced by the fact of the amount of compensation was reduced by the Appellate Court, which was not only otherwise wholly unjustified, but has been set aside by this Court. The Trial Court is further directed to take into consideration the ratio of the decision of the case of Mongilal v. State of M.P. reported in 2004 SCC (Cri) 1058 : 2004 Cri LJ 880 and in the case of Biswajit Chowdhury v. S.S. Distributors reported in 2002 (3) CHN 682.
The Criminal Section is directed to send clown the Lower Court Records to the Court below at once.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.