Ambika Traders vs Roopchand Jain
2025 Latest Caselaw 1207 Chatt

Chattisgarh High Court

Ambika Traders vs Roopchand Jain on 15 January, 2025

Author: Rajani Dubey

Bench: Rajani Dubey

                                     1




                                                2025:CGHC:2543


                                                              AFR

         HIGH COURT OF CHHATTISGARH AT BILASPUR

                   Order reserved on : 08-01-2025
                    Order passed on : 15-01-2025

                       CRMP No. 3461 of 2024

1 - Ambika Traders Through Proprietor Rajesh Lalwani S/o Thawar Das
Lalwani, Aged About 46 Years Address- Ambika Traders/Ambika
General Store, Sharda, Talkies Near Marwadi School, Durg Tahsil And
District Durg Chhattisgarh
2 - Rajesh Lalwani S/o Thawar Das Lalwani Aged About 46 Years
Address Ambika Traders/ Ambika General Store, Sharda, Talkies Near
Marwadi, School, Durg Tahsil And District Durg Chhattisgarh


                                              ... Petitioners/accused


                                   versus
1 - Roopchand Jain S/o Late Gulabchand Jain Aged About 66 Years
R/o Vidhya Vihar, Padmnabhpur, Durg Distripct Durg Chhattisgarh
2 - State Of Chhattisgarh Through Jail Superintendent, Central Jail,
Durg, District Durg Chhattisgarh
                                                    ... Respondent(s)

For Petitioners : Ms. Sameeksha Gupta, Advocate. For Respondent No.1 : Mr. Avinash Chand Sahu, Advocate.

For Respondent No.2 : Mr. Akhilesh Kumar, Govt. Advocate.

Hon'ble Smt. Justice Rajani Dubey, J

C A V ORDER

By way of this petition, the petitioners/accused are seeking

modification of the order dated 24.10.2019 in CRR No. 327/2019

passed by this Court confirming the order of learned trial Court

convicting the accused under Section 138 of Negotiable Instruments

Act and sentencing him to undergo SI for 01 year and pay

compensation of Rs.5 lacs to the complainant within 01 month from the

date of judgment with default sentence of 12 months' RI.

02. Learned counsel for the petitioners would submit that the

penalty/punishment awarded in default of compensation amount was

beyond the statutory limit provided under Section 65 of IPC and as

such, illegal. As per Section 138 of the NI Act, the maximum sentence

of imprisonment is two years and as such, the default sentence could

not exceed beyond six months whereas the learned trial Court

awarded 12 months' RI in default of payment of compensation which is

prohibited under the law. The petitioner/accused has already

completed the substantive jail sentence on 16.5.2024 and thereafter he

is suffering the default sentence and has completed five months

thereof. She would submit that the petitioner/accused has already paid

Rs.1.25 lacs to the complainant on 20.3.2019. Therefore, keeping in

view the provisions of Section 65 of IPC and Section 138 of the NI Act,

by exercising the inherent power under Section 482 of CrPC the order

dated 24.10.2019 passed in CRR No.327/2019 may be modified,

thereby relieving petitioner/accused from undergoing his remaining

default sentence.

Reliance has been placed on the decision in the matter of Soe

Win and others Vs. State, 2016 CrLJ 4373 and Daxaben Vs. State

of Gujarat and others, (2022) 16 SCC 117.

03. Learned counsel for respondent No.1 submits that the sentence

of 12 months' RI awarded by the learned trial Court is in accordance

with law to ensure payment thereof to the complainant. The provisions

of Section 65 of IPC are applicable to fine only whereas the amount

awarded to the complainant is not fine but compensation. As such,

there is no need of any modification in the order dated 24.10.2019

passed in CRR No.327/2019.

04. Learned State counsel supporting the order sought to be

modified has submitted that the learned trial Court was justified in

awarding sentence of 12 months' RI in default of payment of

compensation of Rs.5 lacs in light of Section 64 of IPC and as such,

there is no need for modification of the order passed by this Court in

CRR No.327/2019.

05. Heard learned counsel for the parties and perused the material

available on record.

06. Main grievance of the petitioners/accused is that the default

sentence of 12 months' RI for non-payment of compensation of Rs.5

lacs to the complainant is against the statutory bar provided under

Section 65 of IPC. She contended that Section 138 of the NI Act

provides for maximum sentence of two yeas and so, according to

Section 65 of IPC, 1/4th sentence i.e. 6 months is only awardable as

default sentence.

07. It is clear from the records of learned trial Court as well as this

Court that the learned trial Court convicted the accused under Section

138 of NI Act and sentenced him to undergo SI for 01 year, pay a

compensation of Rs.5 lacs within 01 month from the date of judgment

and in default thereof to suffer additional RI for 12 months. This

judgment was challenged by the accused in appeal before the

Sessions Court which was dismissed on 28.2.2019 and this led to filing

of CRR No. 327/2019 by the petitioners/accused before this Court. The

said revision was also dismissing by maintaining the judgment of

conviction and order of sentence passed by the learned trial Court.

08. Sections 64, 65 & 67 of IPC read as under:

"64. Sentence of imprisonment for non-payment of fine. [In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment,

and in every case of an offence punishable [with imprisonment or fine, or) with fine only, in which the offender is sentenced to a fine,]

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable- The term for which the Court directs the offender to be Imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.

67. Imprisonment for non-payment of fine, when offence punishable with fine only. If the offence be punishable with fine only, [the imprisonment which the Court imposes in default of payment of the fine shall be simple, and) the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case."

09. Thus, it clear from the provisions of Section 64 of IPC that in

case where offence is punishable with imprisonment as well as fine, in

which the offender is sentenced to a fine, whether with or without

imprisonment and in every case of an offence punishable with

imprisonment or fine or with fine only, in which the offender is

sentenced to a fine, the trial Court shall be competent to direct that in

default of payment of fine, the offender shall suffer imprisonment for a

certain term, in which imprisonment shall be in excess of any other

imprisonment to which he may have been sentenced or to which he

may be liable under a commutation of a sentence. In this section, no

bar is prescribed as is there under Section 65 of IPC which provides for

limit to imprisonment for non-payment of fine when imprisonment and

fine are awardable. It is also explicit from Section 138 of NI Act that it

prescribes imprisonment for a term which may be extended to two

years or with fine or with both. Being so, for offence under Section 138

of NI Act, the provisions of Section 64 of IPC would be attracted and

not Section 65 of IPC.

10. Learned trial Court passed order against the petitioner/accused

to undergo RI for 12 months in default of payment of compensation of

Rs.5 lacs. The Hon'ble Apex Court in the matter of R. Mohan Vs. AK

Vijaya Kumar reported in (2012) 8 SCC 721 held in para 29 of its

judgment as under:

"29. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order directing compensation is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357(3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on a par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 IPC. It is obvious that in view of this, in Vijayan {Vijayan V. Sadanandan K. (2009) 6 SCC 652}, this Court stated that the abovementioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh {Hari Singh Vs. Sukhbir Singh, (1988) 4 SCC 551} are as important today as they were when they were made. The conclusion,

therefore, is that the order to pay compensation may be enforced by awarding sentence in default."

11. Learned counsel for the petitioners/accused has also submitted

that as per Section 482 of CrPC, this Court has inherent power to

modify the default sentence. However, this Court is not inclined to

interfere with the default sentence because the petitioner/accused has

only paid Rs.1.25 lacs to the complainant, which is not even half of the

cheque amount.

12. Having regard to the provisions of Sections 64 & 65 of IPC and

the sentence prescribed under Section 138 of NI Act, the aforesaid

decision of the Hon'ble Supreme Court in R. Mohan, this Court finds no

illegality or infirmity in the order of learned trial Court directing the

accused to suffer additional RI for 12 months in default of payment of

compensation to the complainant. The judgments relied upon by

learned counsel for the petitioners/accused being distinguishable on

facts are of no help to her. As such, the present petition seeking

modification of the order dated 24.10.2019 passed by this Court in

CRR No.327/2019 to the above extent is liable to be and is,

accordingly, dismissed.

Sd/ Digitally MOHD signed (Rajani Dubey) AKHTAR by MOHD KHAN AKHTAR KHAN Judge Khan