JUDGMENT
V.K. Tahilramani, J.
1. Heard the learned advocate for the petitioner and learned advocate for the complainant-Respondent No. 1. Rule. By consent, rule is made returnable forthwith.
2. A complaint came to be filed by Respondent No. 1 against the present petitioners and one other under Section 138 of Negotiable Instruments Act. All the petitioners came to be convicted by judgment and order dated 15th January 2002 passed by the learned Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai. By the said order, the petitioners were directed to pay a fine of Rs. 5000/- in default to suffer S. I. for one month. The petitioner Nos. 2 and 3 were sentenced to suffer R.I. for two months. By the said order, all the petitioners were further directed to collectively pay compensation of Rs. 1 lakh to the complainant in view of the provisions of 357 of Criminal Procedure Code.
3. The petitioners preferred criminal appeal No. 122 of 2001 against the judgment and order dated 15th January 2001 passed by the learned Metropolitan Magistrate. The Addl. Sessions Judge, Gr. Mumbai, dismissed the criminal appeal by judgment and order dated 24-6-2002. Hence, the present writ petition.
4. The learned advocate for the petitioners has contended that when fine is imposed, the compensation if any, can only be out of fine which has been imposed on the accused. Thus, he has contended that both fine and compensation cannot be separately imposed on an accused person. In support of his contention, he has placed reliance on Sub-sections (1)(b) and (3) of Section 357 of Criminal Procedure Code. He has also placed reliance on the decision of the Apex Court , Palaniappa Gounder v. State of Tamil Nadu in support of his contention that if fine and compensation are awarded the compensation can only come out of fine. I find considerable merit in the submission made by the learned Advocate for the petitioners. No doubt, in view of Section 357 of Criminal Procedure Code besides imprisonment a fine can be awarded by itself or compensation can be awarded by itself but if fine and compensation are both awarded, the compensation can be awarded only out of the fine amount. Thus, compensation and fine if awarded together the compensation, if any, would have to be paid out of the fine amount.
5. Though the power of a Magistrate in respect of imposition of fine is restricted to Rs. 5,000/-. As far as compensation by itself in the absence of fine is concerned as envisaged by Sub-section (3) to Section 357, Criminal Procedure
Code, there is no upper limit imposed on the Magistrate. Thus, the Magistrate can impose any amount of compensation even exceeding Rs. 5,000/- in case the Magistrate imposes a sentence of which fine does not form a part. Useful reference may be made to the decision of the Apex Court reported in 2000(1) Mh.L.J. (SC) 193 = 1999 All MR (Cri.) 1845 in case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. The said case was also under sections 138 and 142 of Negotiable Instruments Act. The power of the Magistrate in relation to awarding fine and compensation is discussed in paras 30 and 31 which read as under:
“30. It is true, if a judicial Magistrate of First Class were to order compensation to be paid to the complainant from out of the fine realised, the complainant will be the loser when the cheque amount exceeded the said limit. In such cases, a complainant would get only the maximum amount of Rs. 5,000/-.
“31. However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasized the need for making liberal use of that provision. Hari Kishan v. Sukhbir Singh, . No limit is mentioned in the sub-section and therefore, a magistrate can award any sum as compensation. Of course while taxing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of Magistrate of first class in respect of a cheque which covers an amount exceeding Rs. 5,000/- the Court has power to award compensation to be paid to the complainant”.
6. A similar view was taken by the Apex Court in the case of Pankajbhai Nagjibhai Patel v. The State of Gujrat and Anr. 2001 All M.R. (Cri.) 406. This was also a case under Section 138 of the Negotiable Instruments Act. In the concluding para, it is observed thus :
“While retaining the sentence of imprisonment of six months, we delete the fine portion from the sentence and direct the appellant to pay compensation of Rs. 83,000/- to the respondent-complainant”.
7. In view of the above, it is clear that no limit is mentioned in Subsection (3) of Section 357 of Criminal Procedure Code and therefore, a Magistrate can award any sum as compensation. Of course, while fixing the quantum of such compensation, the Magistrate has to consider what would be a reasonable amount of compensation payable to the complainant. No doubt, as far as imposition of fine is concerned, a Magistrate cannot award a fine of more than Rs. 5000/- but so far as compensation is concerned, no outer limit has been fixed for awarding any sum as compensation.
8. The learned advocate for the petitioners states that the petitioner No. 1 is a trust, the petitioner No. 3 has undergone a bypass and the petitioner No. 2 is suffering from medical problems and he has prayed that sentence of imprisonment be set aside. In the present case, the amount of the cheque which has been dishonoured was Rs. 1 lakh. The learned advocate for the petitioners on
instructions stated that the petitioners are ready and willing to give an amount of Rs. 1.5 lakh collectively as compensation to the complainant i.e. respondent No. 1. The learned advocate for the complainant respondent No. 1 who is present in Court states that she is ready and willing to accept the said total amount of Rs. 1.5 lakh as compensation and she has no objection to set aside the sentence of imprisonment and the fine imposed on the petitioners by the Trial Court, if the Court deems it just and proper.
9. On perusal of the record, it is clear that there is sufficient evidence to prove the case against the petitioners and thus the learned Magistrate has rightly convicted the petitioners. So also, the learned Sessions Judge has rightly confirmed the judgment and order of conviction. There is no infirmity or illegality in any of these judgments. However, the Apex Court has observed in paragraph 82 of the case of Sankaran Vaidhyan Balan (supra) that “of course, if the complainant and accused settle their disputes regarding this cheque, in the meanwhile, that fact can certainly be taken into consideration in determining the extent of quantum of sentence”. In the present case as observed by me in the earlier para, it is clear that the complainant and the petitioners-accused are willing to settle their disputes. Thus, on considering the submissions made by learned advocates on both sides and taking into consideration the facts and circumstances of this case, as well as in view of the provisions of Section 357(4) Criminal Procedure Code. I feel it just and proper to modify the order passed by the Trial Court as under :
The sentence of imprisonment and the fine amount of Rs. 5,000/- which has been imposed on the petitioners is set aside. However, the total compensation which has been granted to the complainant i.e. respondent No. 1, of Rupees 1 lakh is increased to Rs. 1.5 lakh. The learned advocate for the petitioners No. 2 and 3 who are present, give an undertaking to the Court that they will give demand draft for Rs. 1.5 lakh to the complainant-respondent No. 1 by 23rd December 2002. The said undertaking is accepted.
10. Thus, the conviction recorded by the learned Metropolitan Magistrate 20th Court, Mazgaon, Mumbai dated 15-1-2001 in Criminal Case No. 719/S/97 is confirmed. However, the imposition of fine of Rs. 5,000/- and sentence awarded against petitioner Nos. 2 and 3 to suffer RI for six months is set aside. Instead of total compensation of Rs. 1 lakh awarded by the trial Court, the petitioner Nos. 2 and 3 – original accused Nos. 2 and 3 to pay a total compensation of Rs. 1.5 lakh which is to be given to the complainant directly by Demand Draft by 23rd December 2002. The bail bonds of the petitioners shall stand cancelled. If the petitioners fail to hand over the said demand draft by 23rd December 2002, the judgment and order of the Trial Court shall stand.
Revision Application is partly allowed as above.