SOMNATH SARKAR versus UTPAL BASU MALLICK & ANR.

Citation: [2013] 9 S.C.R. 935 · Decided: 07-10-2013 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Case Partly allowed

Judgment (excerpt)

[2013] 9 S.C.R. 935 
SOMNATH SARKAR 
v. 
UTPAL BASU MALLICK & ANR. 
(Criminal Appeal No. 1651 of 2013) 
OCTOBER 07, 2013 
[T.S. THAKUR AND VIKRAMAJIT SEN, JJ.] 
NEGOTIABLE INSTRUMENTS ACT, 1881: 
A 
B 
s. 138 of N. I. Act r/w s.357(3) CrPC - Dishonour of cheque c 
- Conviction - Sentence of six months simple imprisonment 
and to pay compensation to complainant, affirmed by 
Sessions Judge - High Court in revision filed by accused, 
substituting six months sentence by imposing a further sum 
equivalent to cheque amount - Held: High Court was 
0 
competent to impose a sentence of fine only upon accused -
- It has rightly set aside the sentence of imprisonment -
However, as the amount of fine imposed by High Court over 
and above the amount of compensation exceeds double the 
cheque amount, it would violate s. 138 N. I. Act - Complainant 
has received compensation as per adjudication of trial court 
E 
- Accused sentenced to pay further a fine of Rs.20,0001- and 
on his failure to do so, he would be liable for imprisonment 
for six months - Code of Criminal Procedure, 1973 - s.357(3). 
s. 138 - Power of court to levy fine - Held: Is circumscribed 
F 
to twice the cheque amount -- Even in a case where court may 
be taking a lenient view in favour of 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 -- High Court has, in the case at hand, 
G 
overlooked the statutory /imitation on its power to levy a fine. 
s. 138 of N.I. Act ands. 357, CrPC - Held: Power to award 
compensation is not available u/s 138 of N. I. Act -- It is only 
935 
H 
936 
SUPREME COURT REPORTS 
[2013] 9 S.C.R. 
A when 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 stages -- First, 
when court determines the amount of fine and levies the same 
subject to the outer limit, if any, as is the position in the instant 
B case -- The second stage comprises invocation of the power 
to award compensation out of the amount so levied -- In the 
instant case, High Court has not followed that process -- It has 
taken payment of compensation to be distinct from the 
amount of fine it imposed equivalent to the cheque amount -
C - High Court should have determined the fine amount to be 
paid by the accused, which in no case could go beyond twice 
the cheque amount, and directed payment of compensation 
to the complainant out of the same -- Ordered accordingly. 
The appellant was convicted uls 138 of the 
D Negotiable Instruments Act, 1881 for dishonour of a 
cheque drawn for Rs.69,5001-, and was sentenced to six 
months simple imprisonment and to pay compensation 
of Rs.80,0001- which was paid to the complainant. The 
order was affirmed by the Sessions Judge in appeal. The 
E High Court, in the revision filed by the accused-appellant, 
substituted the sentence of imprisonment by imposing 
upon the accused an additional sum of Rs.69,500/-. 
F 
Allowing the appeal in part, the Court 
HELD: (Per Vikramajit Sen, J.) 1.1 A reading of the 
impugned order indicates that the intention of the High 
Court was that upon deposit/payment of the further sum 
of Rs.69,5001- (in addition to the earlier sum of Rs. 
80,000/-), the sentence of imprisonment for six months 
G would stand withdrawn. However, the direction of the 
High Court to pay further sum of Rs.69,500/- over and 
above the sum of Rs.80,000/- would violate s.138 of the 
N.I. Act inasmuch as it would exceed the double of the 
cheque amount. [para 4] [941-E-G] 
H 
SOMNATH SARKAR v. UTPAL BASU MALLICK & 
937 
ANR. 
1.2 The use of the word, 'additional sum' in the 
A 
impugned order has led to considerable confusion. To 
put the matter finally at rest, this Court holds that the total 
compensation payable u/s 138 of the N.I. Act read withs. 
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 
B 
as constituting interest on the dishonoured cheque. 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. The c 
appellant is a man of limited financial means. He is 
sentenced to pay further a fine of Rs.20,000/- and, on his 
failure to make the payment, he would be liable for 
impr

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