KARAM HUSSAIN Vs. ABDUL LATIF LAKDAWALA

JUDGEMENT

(1.) The Court of Metropolitan Magistrate, 30 Court, Kulra, Mumbai convicted the Respondent-Accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 ["NI Act"]. The Respondent is sentenced to simple imprisonment and fine. In addition to that, compensation was awarded separately. Whereas, the Appellate Court i.e. City Civil Court, Mumbai set aside the conviction and acquitted the Respondent-Accused.

(2.) It is a settled law that compensation can be awarded from the amount of fine or it may be awarded independently without imposition of fine. So, if the fine is imposed, the compensation has to be awarded from the amount of fine only. It mean to say that the amount of compensation cannot be more than the amount of fine. If fine is not imposed, then compensation can be awarded without any restriction. These are the provisions incorporated in Ss. 357(1) and 357(3) of the Criminal Procedure Code, 1973 ["Cr.P.C."]. This has not been followed by the trial Court. In addition to that, an imprisonment in default of fine was six months. This was in excess of 1/4 of substantive sentence of imprisonment (one year) and it violates the provisions of Sec. 30 of the Cr. P.C. These are some of the grounds for setting aside the judgment of conviction. So also, the judgment was set aside for the reason that the Respondent-Accused rebutted the presumption and findings of the trial Court were wrong.

(3.) Both the learned Advocates have not disputed about legality of findings about awarding compensation and default sentence. High Court of Kerala in the judgment in case of Sanjeev v. Triveni Credit Corporation 2006 SCC OnLine Ker 356 relied upon by the Appellant has also clarified this issue. The provisions of Sec. 357(3) of the Criminal Procedure Code, 1973 ["Cr.P.C."] were considered. If sentence of fine is imposed, there can be no resort to the provisions of Sec. 357(3) of Cr. P.C. So, the only issues arisen in this Appeal are:-