JUDGMENT A.H. Joshi, J.
1. The original complainant who has filed Criminal Case No. 1335/1991 under Section 138 of the Negotiable Instruments Act has filed this appeal, as Judicial Magistrate, First Class, Gondiahas dismissed the complaint and acquitted the accused.
2. The judgment of acquittal is based on the finding that the transaction, in question, was by way of security and was not towards the discharge of debt or liability and, therefore, the transaction was beyond the scope of Section 138 of the Negotiable Instruments Act.
3. The judgment of acquittal is challenged on the ground of being erroneous illegal and based on considerations not borne on record, and by drawing inferences which are not permissible from the evidence on record.
4. It is seen that the complainant has examined himself, he gave entire account of facts and the background in which for the cheque was given. He has proved the entire transaction and that in the open and current account maintained by him arrears of Rs. 51,888/- were recoverable, from the accused which he gave a cheque of Rs. 50,000/-. On presentation, the cheque was dishonoured. On 13.7.1991 i.e., after service of statutory notice, the accused paid a sum of Rs. 30,000/- by demand draft. In the cross-examination, suggestions were given to the complainant by the accused to the effect that the cheque was given in 1989 by way of security. The suggestion was denied by the complainant. It is seen that the complainant's evidence which was recorded is at Exh. 15, and the evidence was closed by filing Exh. 35.
5. The statement of accused under Section 313 of Criminal Procedure Code was recorded. The accused also sought to file statement on affidavit. It is seen that no such statement on affidavit is filed.
6. It is seen that in the statement under Section 313 of Criminal Procedure Code, the accused was asked certain questions. He replied admitting that he had transactions, and stated that he had given cheque by way of security in 1989 and denied that towards arrears a sum of Rs. 51,888/- was recoverable from him. In response to the question Nos. 6 to 9, the accused has replied as follows:
Question No. 6 : Why the complainant is deposing against you?
Answer : I do not know.
Question No. 7 : Do you want to give statement on oath?
Answer : No. Question No. 8 : Do you want to lead defence evidence?
Answer : No. Question No. 9 : What else you want to say about the case?
Answer : In August 1989 complainant demanded Security of cheque for giving me goods on credit so I issued cheque. Case is false.
[Quoted from page 37 of paper book]
7. Upon recording statement under Section 313 of Criminal Procedure Code, case proceeded for oral arguments and thereupon for judgment.
8. In the body of judgment learned Trial Court formulated the following questions.
POINTS FINDING
(1) Whether complainant proves that Cheque No. 803870
of the Bank of Maharashtra was issued to him by the
Accused on 30.3.1991 for discharge of liability of
payment of dues of Rs. 51,888/- towards the price of
purchase of goods from time-to-time? Negative.
(2) Whether offence under Section 138 of Negotiable
Instruments Act is proved by the complainant? Negative.
9. The learned trial Judge upon, what appeared to him on appreciation of evidence, found that the complainant failed to prove that a sum of Rs. 51,888/- was due and recoverable, and that the cheque for Rs. 50,000/- was given by way of payment of dues. Learned trial Judge found the circumstances of three signatures and writing in three different inks on the cheque to be a circumstances giving suspicion. Trial Court further observed and held that:
All these facts compells to accept the theory put forth by the accused that the cheque (Blank) was issued in 1989 only as a 'Security' to continue transactions (Credit) and not towards discharge of debt or liability. Hence, the case goes out of the scope of Section 138 of Negotiable Instruments Act.
[Page 74-75 of Paper Book] and held that the questions framed by him were liable to be answered in the negative.
10. Learned Advocate Mr. Mundra advanced the following submissions:
(a) the judgment is erroneous and calls for being reversed;
(b) Trial Court framed questions in total erroneous manner and contrary to the scheme of the Negotiable Instruments Act;
(c) the Trial Court should have formulated the question as to whether the complainant proves that accused had become successful in rebutting presumption that cheque was drawn for valuable consideration and towards proved facts namely purchases made by him on credit
(d) Instead of doing so, the Trial Court proceeded by disregarding presumption as to consideration prescribed in Negotiable Instruments Act. In the result, learned Trial Court expected that complainant was required to prove the existence of Civil liability.
(e) The very purpose and object of Section 138 of Negotiable Instruments Act, was defeated.
(f) The learned trial Judge gave undue and unnecessary importance to different ink used while writing, signing, etc. of the cheque.
(g) Learned trial Judge has drawn an inference impermissible in law while holding that the signatures on the back side of cheque connoted that the cheque was drawn as a bearer cheque. Moreover, nature of cheque whether bearer or crossed has no bearing as to presumption which follows the act of drawing, negotiating, endorsing, transfer, etc., of any negotiable instrument, as well its date, etc. under Section 118 of Negotiable Instruments Act.
(h) According to learned Advocate Mr. Mundra, not only the judgment and order of acquittal is liable to be reversed, but even the complainant is entitled for compensation. For that purpose, learned Advocate placed reliance on the following judgments-
(1) Hari Kishan and State of Haryana v. Sukhbir Singh and Ors. .
(2) Bratindranath Banerjee, Director, Standard Chartered Bank v. Hiten P. Dalai .
(3) K. Bhaskaran v. Sankaran Vaidhyan Balan and Ors. III .
(4) K.N. Beena v. Muniyappan and Anr. IV (2006) BC 287 (SC) : IV (2001) CCR 196 (SC) : 2001 Cri.L.J. 4745.
(5) Hiten P. Dalai v. Bratindranath Banerjee III .
(6) Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. I .
(7) Suganthi Suresh Kumar v. Jagdeeshan I .
(8) Goaplast Pvt. Ltd. v. Shri. Chico Ursula D 'Souza and Anr. II (2003) BC 71 (SC) : IV (2003) CCR 403 (SC) : 2003 Cri .LJ. 1723.
11. It is not necessary to discuss the judgments cited at bar.
It shall suffice to mention the ratio namely, it is competent for the Criminal Court to order by way of restitutive action, monetary compensation and it shall also be competent to impose sentence in default.
12. Learned Advocate for the appellant has also relied upon Section 117 of Negotiable Instruments Act showing that appellant is entitled for amount due, interest thereon, transport charges, interest at the rate of 18% per annum.
13. In the midst of hearing, the learned Advocate Mr. Sirpurkar sought time to ascertain as to whether the respondent is in a position to make payment. Advocate Mr. Sirpurkar has filed the respondent's affidavit stating that he is willing to pay Rs. 35,000/- in full satisfaction, but because he is not financially sound and has suffered a loss due to heavy rains and floods, he has tendered apology for the trouble and inconvenience caused to the appellant.
14. Learned Advocate Mr. Mundra has received a copy of affidavit and expressed great dissatisfaction about the offer. The appellant, however, has not countered the contents of the affidavit. Learned Advocate Mr. Mundra further submitted that it shall not be necessary to remand the case either for judgment afresh or for assessment of compensation, Mr. Mundra, however, did not specify or describe exact amount of compensation the complainant craved for,
15. Now the question that arises before this Court is whether the finding of the Trial Court calls for being reversed, If the answer to question No. 1 is in affirmative, what shall be the order us to conviction as well as the compensation as prayed for by the appellant.
16. It is clear that beyond suspicion that the accused did not counter whatever facts are proved by the petitioner/complainant,
17. Complainant has proved that there existed transactions between him and the accused and those were entered in an open and current account.
18. If the accused wanted to dispute the extent of existing civil liability it was open for him to do so:
(a) by raising any specific plea at the stage of reply to notice under Section 138 of Negotiable Instruments Act,
(b) during cross-examination by disclosure, suggestion,
(c) during Section 313 statement,
(d) by bringing his own positive evidence, either in his own possession or by summoning.
19. Liability to bring positive evidence was more intense particularly, when towards the dishonoured cheque the accused has made the part payment of Rs. 30,000/-. The transactions and part of liability being once admitted, it was sole burden and duly of accused to prove the extent of liability when he was defending a presumption which was supporting the dishonoured cheque.
20. The forbearance of the accused in bringing before the Court best evidence including own testimony renders complainant's case not only proved, but also left without traverse. The traverse was directly needed unlike in any other ordinary criminal case unprotected by presumption.
21. In the result, the complaint before Trial Court was bound to result in the order of conviction, sentence to the accused as well as order of payment of compensation to the complainant, which however, happened otherwise due to the erroneous approach of Trial Court.
22. This Court, therefore, holds the accused to be guilty of offence punishable under Section 138 of Negotiable Instruments Act.
23. Heard the learned Advocate for accused on the point of sentence. Learned Advocate Sirpurkar has argued in favour of lenient view and has shown readiness to pay compensation in a sum of Rs. 35,000/- and has prayed for time to pay.
24. It is seen that the accused has paid Rs. 30,000/- and amount due under the cheque is Rs, 20,000/-. It is also a fact to be noted that so far the complainant has not disclosed if he has taken out an action for civil remedy for recovery of money due on account, Considering totality of circumstances, this Court considers it appropriate to order payment of compensation of quantified sum of Rs. 60,000/-(Rupees sixty thousand only), This Court has quantified this amount referring to the fact that the sum of Rs. 20,000/- was due over two decades, and by any fixed deposit, it could have got multiplied three times, It is clarified that the amount of Rs. 60,000/-(Rs. sixty thousand only) so quantified shall also include expenses, interest, etc.
25. This Court, therefore, passes following order:
(a) Accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act.
(b) Accused is sentenced to suffer Rigorous Imprisonment of two months. The order of sentence, shall be executable if payment of compensation is not done in due time by the accused voluntarily.
(c) The accused shall pay to complainant a sum of Rs. 60,000/- (sixty thousand only) by way of compensation within 60 days from the date of this order.
(d) If this amount of compensation is paid within 60 days by the accused voluntarily the substantive sentence shall be modified to simple imprisonment till rising of Court and will be treated as undergone.
(c) In the event of failure of the accused to pay the compensation voluntarily both orders contained in Clause (b) as well as Clause (c) above shall be implemented/executed as per law.