Partha Sakha Datta, J.:— Whether the learned Sessions Judge of Jalpaiguri was justified in remitting the case back on remand for fresh decision is the subject-matter of consideration in the revisional application.
2. The Judicial Magistrate, 1st Court, Jalpaiguri convicted the O.P No. 1 under section 138 of the NI Act and sentenced him to suffer simple imprisonment for two months with fine of Rs. 5,000/- in default to suffer further simple imprisonment of one month. A sum of Rs. 3 lac was also awarded as compensation payable to the complainant against the O.P No. 1 under section 357 of the Cr. PC.
3. Before the learned Sessions Judge in Criminal Appeal No. 7 of 2005 who set aside the judgment and order of the learned Magistrate and remanded the case back two points had come up for consideration. The first point was whether quoting of wrong cheque No. in the statutory notice under section 138(b) of the NI Act yet maintaining the accurate figure of the amount of the said cheque and also the date of the cheque did vitiate the trial; and secondly whether prosecution of the O.P No. 1 under section 138 of the NI Act would amount to double jeopardy in view of his earlier alleged prosecution under section 420 of the IPC and would be hit under section 300 of the Cr. PC. Certain other points were also agitated before the learned Appellate Court by the O.P/accused but they did not find favour with the learned Judge, and it appears on perusal of the judgment and the order of the learned Judge of the Court below that it was on account of these two grounds that the Magistrate was asked to arrive at a fresh decision with liberty to get any further evidence if necessary.
4. I have heard Mr. Milan Mukherjee, learned Advocate appearing for the petitioner and Mr. Prabir Kumar Ghosh, learned Advocate appearing for the O.P No. 1.
5. Towards discharge of legal liability the O.P No. 1 issued cheque for Rs. 2,44,255/- being A/C Payee Cheque No. 91.CA/12, No. 594662 dated 14.08.1995 drawn on Indian Overseas Bank, Jalpaiguri. The cheque was bounced back. Statutory notice followed under section 138(b) of the NI Act on 21.08.1995 which was received by the O.P No. 1 on 22.08.1995 and the A/D card was returned to the complainant/petitioner herein on 23.08.1995 Prosecution was launched as payment was not made. That there was existence of debt or legal liability, and issuance of service of notice are not in dispute. Before the learned Trial Court, as I could be able to gather from the judgment of the Magistrate, two points were raised. It was firstly submitted that since the cheque No. was 91.CA/12 No. 594662 was wrongly quoted in the notice under section 138(b) of the NI Act as 91.CA/12/544562 the prosecution was bad in law. The learned Magistrate observed in the judgment that throughout the trial the point was never raised and it was only during the argument on the last day that such a point was raised. Secondly, it was agitated before the learned Magistrate that the complainant filed a case under section 420 of the IPC against the O.P No. 1 but the case ended in FRT and he was discharged. Before the learned Magistrate it was argued that the O.P No. 1 did not issue any cheque and it was a product of forgery. The learned Magistrate observed that how the accused was discharged from the G.R Case No. 1004 of 1995 under section 420 of the IPC was not the question in the instant case under section 138 of the NI Act. In the said police case under section 420 of the IPC, the report of the handwriting expert was that no definite opinion as to the authorship of the disputed signature was possible. The learned Magistrate observed that the accused could have proved his defence case in the trial but he did not adduce any evidence in the proceeding under section 138 of the NI Act to the effect that the signature in the cheque bounced was a forged signature. The learned Magistrate was of the opinion that a cloudy opinion of a handwriting expert in the police case could not give the accused in the proceeding under section 138 of the NI Act a stable land to stand. Therefore, in this background accused made his second submission before the learned Appellate Court that he could not be prosecuted twice-once in the police case under section 420 of the IPC and then in the proceeding under section 138 of the NI Act and when he has been discharged from the police case his prosecution under section 138 of the NI Act is hit by section 311 of the Cr. PC.
6. As to the question of wrong mention of the cheque No. in the notice under section 138(b) of the NI Act the learned Appellate Court recorded as follows:
“Notice was issued under the signature of Advocate Rahul Hoare who is examined in this case as P.W 4. P.W 4 has proved the notice issued by him which is marked as Ext. 10 in this case. In the notice there is mention that cheque issued by the appellant for the amount of Rs. 2,44,255/- was placed in this savings bank account of respondent No. 1 with Indian Overseas Bank on 14.8.1995 and the said cheque was dishonoured on account of full cover not received insufficient fund. In the said notice there was demand for payment of amount within 15 days from the date of receipt of the notice and it was also mentioned that on failure necessary action under section 142 of the NI Act would be taken. After going through the contents of the notice it can not be said that there was no demand for payment of money as mentioned in the cheque which was not honoured by the bank due to insufficiency of the fund. In this connection it is pertinent to highlight the relevant portion of evidence of P.W 1 who categorically stated in his examination-in-chief that the notice was issued by the lawyer and at that time the appellant was detained in Jalpaiguri Jail and the notice was sent under registered post and the same was received by him. The AD card and postal receipt respectively are marked as Ext. 5 and Ext. 6. Ext. 5 which is the AD card shows that the notice was sent under registered post with AD and addressed to the appellant and the address is recorded as “C/o. Superintendent, Jalpaiguri Jail.” The postal receipt which is marked as Ext. 6 also shows the despatch of notice. I have carefully examined the cross-examination of P.W 1 and I do not find any challenge raised by defence about the non-receipt of notice which was sent to him during the course of his detention at Jalpaiguri Jail. So, it is evident that during the course of trial and particularly when evidence was recorded no challenge was made by defence about the incorrect number of cheque as mentioned in the said notice. On the contrary specific plea was raised by defence by way of cross-examination about the criminal case registered against him under section 420 of the IPC. This aspect of the defence plea will be considered subsequently.
It is also pertinent to point out in this context that P.W 4 was not cross-examined about the defective notice about the incorrect cheque number. He was only given suggestion that without proper instruction he drafted and sent the notice. P.W 4 denied the suggestion. It is correct that P.W 4 did not explain anything about the incorrect number of cheque as mentioned in the notice. But it is evident both from the evidence of P.W 1 and P.W 4 that this aspect about the incorrect cheque number was never raised by appellant during the entire course of trial.
In these circumstances, it appears that the incorrect cheque number was raised for the first time during the course of argument as is evident from the judgment passed by the learned Magistrate. The learned Magistrate observed that during the entire course from the year 1995 accused all along pursued the case and never raised the question. His only plea was that the cheque was never issued by him and he denied his signature on the cheque.”
7. The Appellate Court observed that the Magistrate's observation that the accused was estopped from getting benefit of the mistake was not incorrect because in criminal trial plea about estoppel cannot be raised. This is one of the ground for remanding the case back to the learned Magistrate.
8. The second ground of remand is that when two criminal cases were registered over the same occurrence and when the case registered by the police under section 420 of the IPC ended in submission of final report the Magistrates should have decided whether the provision under section 300 of the Cr. PC would be attracted or not and accordingly, Magistrate was directed to consider this aspect of the matter.
9. Upon hearing the learned Advocates for the parties, I am clearly of the opinion that the grounds on which the learned Sessions Judge remanded back the case to the learned Magistrate are wholly illegal and cannot be sustained. That there was a mistake in mentioning the correct cheque No. in the notice under section 138(5) of the Cr. PC is not in dispute. I ask myself: What material improvement will the defence achieve in having it on record through further evidence to the effect that there was mistake or wrong entry about the correct cheque number in the notice under section 138(b) of the NI Act? It is not that the wrong mentioning of the cheque number in the notice is denied. The only question is in the context of such wrong mentioning of the cheque number in the notice what legal consequence would follow. The question is whether the legal consequence will be fatal to the complainant's case or not. For this remand of the case to the Magistrate is not required as this is a question of law, fact being admitted. The question is whether the accused can be said to have been prejudiced by wrong mentioning of the cheque number in the notice or not. If the prejudice has not been caused to the accused then there ends the matter. If on the other hand prejudice is seen to have been caused to the accused then the situation would be different. Now both the learned Magistrate and the learned Appellate Court have come to concurrent finding of fact that there was existence of legal liability to discharge by the accused towards the complainant. The Magistrate observed that the accused in the case does not deny about the business transactions between him and the complainant. The learned Sessions Judge also observed as follows:
“Ext. 7 is a letter issued by the appellant to respondent No. 1 wherein it has been stated with reference to the agreement dated 26.11.94 (Ext. 2) that appellant has liability to the tune of Rs. 5,49,781.50 (Rupees five lacs forty-nine thousand seven hundred eighty-one and paise fifty only). In the said letter dated 4.8.2005 there is also mentioned that out of the said liability respondent No. 1 has already collected a sum of Rs. 3,33,025/- from Diabari Tea Co. Ltd. and Nepuchapur Tea Co. Ltd. on the strength of power of attorney dated 30.11.1994 and the balance amount along with the interest will be Rs. 2,44,255/- (Rupees Two lacs forty four thousand two hundred fifty five only). In the said letter it is clearly stated that in order to discharge the liability A/C payee cheque bearing No. 91.CA/12 No. 594662 dated 14.8.95 on Indian Overseas Bank, Jalpaiguri is issued. It was also requested that respondent No. 1 should pay the cheque to her banker on 14.8.95 or soon thereafter and positively not before that date.”
10. If, as is found by the learned Sessions Judges, from the letter of the accused-O.P No. 1, it itself appears that the O.P No. 1-accused himself has correctly stated the cheque number in his letter (Ext. 7) and identified the cheque to be the cheque in question can it be said that accused has been prejudiced? It is not the case that a good number of cheques were issued and the O.P No. 1 accused was misled by the identity of the cheque. Accused's own letter revealed and identified the cheque to be the cheque in question. The learned Sessions Judge further observed as follows:
“In the said letter it is also mentioned that the appellant has instructed his lawyer to revoke the power-of-attorney executed by him in favour of the respondent No. 1 on 30.11.94 Ext. 7 clearly shows that after terminating the power-of-attorney the appellant issued the cheque for the amount of Rs. 2,44,255/- vide cheque No. 594662. The cheque was post-dated on 14.8.1995 as is mentioned in the letter dated 4.8.1995 The cheque in question bears the No. 594662 for the amount of Rs. 2,44,255/- and the same is dated 14.8.1995 While appreciating the evidence with regard to the documents Court is required to examine the same in order to determine the intention of the parties. Combined reading of Ext. 7 and Ext. 9(1), cheque No. 594662 amounting to Rs. 2,44,255/- (letter issued by appellant to respondent No. 1) clearly indicates that which was issued to discharge liability. So, the necessary ingredients to constitute the offence under section 138 of the NI Act that cheque was issued to discharge the liability is well-established from the documentary evidence as produced during trial”.
11. Moreover, in his examination under section 313 Cr. PC the learned Magistrate put the correct cheque number to the accused and in such circumstances, there is no point of recording any further evidence. Learned Sessions Judge does not himself say that by wrong mentioning of the cheque number in the statutory notice the accused has suffered prejudice. Learned Sessions Judge does not say that the question of forgery should have been investigated by the learned Magistrate. Learned Sessions Judge opined that cheque was issued towards the discharge of legal liability. Learned Sessions Judge is of the opinion that notice was served and moreover notice has been replied to by the accused. The notice relates to the cheque for Rs. 2,44,255/-. Thus, the learned Sessions Judge wholly unjustified in remanding the case back to the learned Trial Court and the order of remand was wholly unnecessary. In this connection I may refer to a Single Bench decision of Andhra Pradesh High Court in the case of Kavuri Suwarna Bala Sundaram v. Puma Chandra Rao, 2004 Cr. LJ 712, wherein a similar situation was dealt with. It was held that it was not necessary for the drawer to mention the number of the cheque. The number on the dishonoured cheque is of no relevance for the drawer to pay the amount covered by such dishonoured cheque and the mere ground that a wrong cheque number was written on the demand notice is no ground for quashing of the proceeding.
12. The second ground of the learned Sessions Judge that the learned Magistrate should have come to a finding whether the trial of the O.P No. 1 under section 138 of the NI Act is hit by section 300 of the Cr. PC and therefore, the learned Magistrate should come to a finding on this point. Remitting the case back on remand on this ground is wholly illegal because sub-section (1) of section 300 of the Cr. PC provides “a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
13. In the case the accused was neither convicted under section 420 of the IPC, nor acquitted. The explanation to the section 300 provides that the dismissal of a complaint or the discharge of the accused is not an acquittal for the purpose of the section. Therefore, it cannot be said that the prosecution under section 138 of the NI Act was hit by section 300 of the Cr. PC. Learned Sessions Judge himself recorded in the order that the accused was discharged from the police case. Discharge of an accused in a police case under section 420 of the IPC does not entail that his prosecution under section 138 of the NI Act is barred by law. The learned Advocate for the O.P No. 1 referred to the decision in Kashigar Ratangar v. State of Gujarat, 1975 Cr. LJ 963. This decision does not help the O.P No. 1 as the accused was acquitted in the case. It was not a case of discharge. In Jatinder Singh v. Ranjit Kaur, 2001 Cr. LJ 1015, it was observed by the Lordship of the Supreme Court that where the first complaint did not result in conviction or acquittal provision of section 300 Cr. PC does not hit the second complaint. Learned Advocate for the O.P No. 1 referred to the decision of Rabindra Dhal v. Jairam Sethi, 1982 Cr. LJ 2144. This decision is in different context and is not applicable.
14. Situated thus the order of the learned Sessions Judge cannot be sustained.
15. But there is a defect in the order of the learned Magistrate. The learned Magistrate imposed fine of Rs. 5,000/- in default to suffer S.I for one month and then awarded compensation of Rs. 3,00,000/- against the O.P No. 1 under section 357 of the Cr. PC. Their Lordships of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan, 1999 (7) SCC 510, observed as follows:
“In this context a reference to section 29(2) of the Code is necessary as it contains a limitation for the Magistrate of the First Class in the matter of imposing fine as a sentence or as a part of the sentence. Section 29(2) reads thus:
29. The trial in this case was held before a Judicial Magistrate of the First Class who could not have imposed a fine exceeding Rs. 5,000/- besides imprisonment. The High Court while convicting the accused in the same case could not impose a sentence of fine exceeding the said limit.
30. It is true, if a Judicial Magistrate of the 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 a case a complainant would get only the maximum amount of rupees five thousand.
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 emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh). No limit is mentioned in the sub-section 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 the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the 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.”
16. Under section 387(3) of the Cr. PC when a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the Act for which the accused person has been so sentenced. Therefore, sub-section (3) of section 357 can only be applied when fine does not form a part of the offence. Having considered the judgment of the Supreme Court with reference to the provision in section 357(3) of the Cr. PC the appropriate order for the Magistrate would have been to direct payment of compensation alone without imposition of fine.
17. Accordingly, while I allow the revisional application and set aside the judgment and order of the learned Sessions Judge I set aside the order of sentence of fine of Rs. 5,000/- as has been imposed by the learned Magistrate and direct that the O.P No. 1 will pay compensation of Rs. 3 lac to the complainant under sub-section (3) of section 357 of the Cr. PC in addition to simple imprisonment of two months as awarded by the learned Magistrate.
18. A copy of the order shall be sent to the learned Sessions Judge, Jalpaiguri as also to the learned Judicial Magistrate for information and necessary action.
19. Urgent xerox certified copies of this order, if applied for, be given to the parties as expenditiously as possible.
Revisional application allowed.
R.B