TaxTMI 
TaxTMI 
2025 (6) TMI 672
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....ant/Petitioner, Sri Prasanna Kumar Nahata for enhancement of the sentence and compensation amount awarded by the Learned Metropolitan Magistrate, 14th Court, Calcutta dated 04.08.2018 in connection with Case No. CS-0053954 of 2016 filed under Section 138 of the Negotiable Instruments Act, 1881. 3. The another Revisional application being CRR 3491 of 2019 has been filed under Section 482 of the Code of Criminal Procedure, 1973 (In short CrPC) by the petitioner/convict assailing the impugned judgment dated 19.09.2019 passed by the Learned Additional Sessions Judge, Fast Track Court - II, City Sessions Court, Calcutta in Criminal Appeal No. 79 of 2019 preferred by the Appellant/convict against the judgment of conviction and sentence dated 4th August, 2018 passed by the Learned Metropolitan Magistrate, 14th Court, Calcutta in connection with Case No. CS-0053954 of 2016 initiated under Section 138 of the Negotiable Instruments Act, 1881 thereby the Learned Trial Court convicted the accused Abhishek Dhanania. 4. By the said judgment dated 19.09.2019, the Learned Additional Sessions Judge, Fast Track Court - II, Calcutta dismissed the appeal and affirmed the judgment of conviction o....
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....pay the same accordingly, Petitioner initiated the proceeding under Section 138 of the N.I. Act, 1882. 5c. Being aggrieved by and dissatisfied with the conviction order, the accused/convict filed a Criminal Appeal No. 79/2019 before the Learned Chief Judge, City Sessions Court, Calcutta. After hearing, the appeal was admitted with a direction upon the appellant/convict to deposit Rs. 1,50,000/- before the Learned Lower Court as security deposit. 5d. Against that order, the petitioner preferred a Criminal Revisional application being CRR. No. 1924/2019 before the Hon'ble High Court and during pendency of the said Criminal Revisional application, the appeal being Criminal Appeal No. 79/2019 came up for hearing before the Learned Additional Sessions Judge, Fast Track Court - II, Calcutta. The appeal was dismissed on contest on 19.09.2019. The impugned judgment and order of conviction passed by the Learned Metropolitan Magistrate, 14th Court, Calcutta on 04.08.2018 was affirmed and the surety of the accused/appellant is directed to take step for surrendering the accused/appellant before the Learned Trial Court within 15 days from the date of receipt of the judgment, in default, t....
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....sions Judge failed to give any opportunity to the accused/convict and has passed the impugned judgment under contravention of the principles of natural justice and, therefore, the said impugned judgment is void and liable to be set aside. 7. The learned counsel has placed reliance of a judgment passed in the case of P.S. Mitra @ Partha Sarathi Mitra Vs. Manor Travels Private Limited & Anr. (2017) 2 C Cr LR (Cal) 178. He also placed reliance of a judgment passed in the case of Maneka Gandhi Vs. Union of India AIR 1978 SC 597 where the Hon'ble Supreme Court held that rule of fair hearing is necessary before passing any judgment in an appeal. 8. On the other hand, the learned senior counsel, Mr. Bhattacharjee appearing on behalf of the complainant/petitioner submitted that several opportunities were given to the appellant/accused to place his case on 30.07.2019, 16.08.2019, 16.09.2019 and 19.09.2019 but despite filing hazira through learned counsel, none found to represent the appellant at the time of hearing. Therefore, there was no option to the Learned Additional Sessions Judge as such decided the case on merits. There is nothing to decide in the appeal because the convict/ap....
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....ion filed by the complainant/petitioner is not maintainable and, therefore, liable to be dismissed. 11. Finally, he prays for dismissal of the Revisional application. He placed reliance of a judgment passed in the case of P.S. Mitra @ Partha Sarathi Mitra Vs. Manor Travels Private Limited & Anr. (2017) 2 C Cr LR (Cal) 178 to support of his contention. 12. In reply, the learned senior counsel, Mr Bhattacharya appearing on behalf of the complainant/petitioner submitted that due to inadequacy of fine, the complainant herein filed this present application under Section 401 read with Section 482 of the CrPC seeking enhancement of fine. He also raised objection with regard to plea that the criminal revision is not maintainable or applied in the present case for enhancement of the compensation amount. He was further filed written notes of argument and submitted as follows: - i) Right to appeal is a statutory right. Unless such a right is specifically conferred by a statute, the same can neither be assumed nor inferred by way of interpretation. Therefore, a right of appeal is to be construed stricto sensu. Learned counsel has placed reliance of a judgement of Hon'ble Supreme....
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....hat a victim does not have a right to appeal save and except the aforesaid eventualities apart from an order of acquittal in a complaint case under Section 378 of Cr PC (which is subject to special leave). iv) A case under Section 138 of NI Act is punishable with imprisonment or fine. According to Section 143 of NI Act, a court can pass an Order of fine beyond Rs. 5,000/- and which may extend to double the cheque amount. According to Section 143 of NI Act, the trial is to be conducted as per the provisions of Sections 251-259 of CrPC, which fall under Chapter XX of CrPC (Trial of Summons Cases by Magistrates). According to Section 255 (2) of CrPC, if the Magistrate, after trial, finds the accused person guilty then court "shall pass sentenced according to law". v) According to Section 53 of Indian Penal Code, 1860, imprisonment and fine are sentences whereas compensation is not so. vi) Hence, the Magistrate, after conclusion of trial in a case of conviction, is obligated to pass an Order of imprisonment or fine, or only fine. However, such fine may be applied in the payment to any person of compensation in terms of Section 357 (1) (b) of Cr.P.C. Learned c....
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....II of the Act should be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 of the Code (relating to summary trials) shall, as far as may be, apply to such trials. The proviso thereto provides that it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term extending one year and an amount of fine exceeding Rs.5,000/-, in case of conviction in a summary trial under that section. In view of conferment of such special power and jurisdiction upon the First Class Magistrate, the ceiling as to the amount of fine stipulated in section 29 (2) of the Code is removed. Consequently, in regard to any prosecution for offences punishable under section 138 of the Act, a First Class Magistrate may impose a fine exceeding Rs.5000/-, the ceiling being twice the amount of the cheque. 14. This case relates to dishonour of cheque in the year 1995. Though the complainant-appellant has succeeded in obtaining a conviction, he has virtually lost in the sense he did not get compensation to recover the amount of the dishonoured cheque. As the limitation for filing a civil suit expired during the pendency....
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.... as under:- "5. Aggrieved thereby the appellant moved the High Court with a petition under Section 482 of the Code for setting aside of the said orders and restoration of the complaint. As aforesaid, by the impugned judgment, the High Court has dismissed the petition, holding that the dismissal in default of a private complaint amounts to acquittal of the accused, and since against such an order a specific statutory remedy exists in the Code, a petition under Section 482 of the Code cannot be entertained. Hence the present appeal by the complainant. 12. We are convinced that in the instant case, rejection of the appellant's petition under Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said Section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set as....
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.... year and an amount of fine exceeding Rs.5,000/-, in case of conviction in a summary trial under that section. In view of conferment of such special power and jurisdiction upon the First Class Magistrate, the ceiling as to the amount of fine stipulated in Section 29 (2) of the Code is removed. Consequently, in regard to any prosecution for offences punishable under Section 138 of the Act, a First Class Magistrate may impose a fine exceeding Rs. 5000/-, the ceiling being twice the amount of the cheque. 17. The co-ordinate Bench of this Court in the case of P.S. Mitra @ Partha Sarathi Mitra Vs. Manor Travels Private Limited & Anr held particularly in paragraphs 15, 16 and 17 as follows:- 15. However, the issue may be viewed from another angle. It is by way of purposive interpretation that the Apex Court in Vijayan (Supra) and R. Mohan (Supra) held that 'compensation' shall be deemed to be a 'fine' for the purposes of Section 64 of I.P.C. and in default of payment of such compensation the Court shall have the power to impose imprisonment upon the defaulter. Such purposive interpretation, therefore, creates a legal fiction and treats 'compensation' a....
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....y, I am of the opinion that a compensation which is treated as a fine in terms of Section 64 of I.P.C. and a direction for imprisonment is given in default of payment of such compensation is appealable under Section 374 read with Section 376 Cr.P.C. as if it was a 'sentence of fine' for the purposes of such appellate remedy.:- 18. Here, the Petitioner/complainant filed revisional application seeking enhancement of the conviction, sentence and compensation passed by the Learned Trial Court. To understand the legal provision in this regard, Sections 372 and 482 of the CrPC are necessary to look into for ready reference and proper adjudication of the present case in hand. Section 372 of CrPC reads as follows: - "372. No appeal to lie unless otherwise provided. -No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Co....
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....quittal as provided under sub-section (4) of Section 378 CrPC, subject to the grant of special leave to appeal by the High Court. 13.2. As observed by this Court in Mallikarjun Kodagali [Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752 : (2019) 1 SCC (Cri) 801], so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like sub-section (4) of Section 378CrPC in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as Issue (ii) is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372CrPC or Section 378 (4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the ....
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....hall lie under sub-section (1) or under sub-section (2)." Thus, under the earlier Section 378(1) of the Code, the State Government could, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court or an order of acquittal passed by the Court of Session in revision. Section 378(2) covered cases where order of acquittal was passed in any case in which the offence had been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. In such cases, the Central Government could also direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal. Section 378(3) stated that appeals under sub-sections (1) and (2) of Section 378 of the Code could not be entertained except with the leave of the High Court. Sub-section (4) of Section 378 of the Code provided for orders of acquittal passed in any case instituted upon complaint. According to this provision, if on an app....
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....ry by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub-section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation." 21. Considering the aforesaid provisions and propositions laid down by the Hon'ble Supreme Court, it is clear that when the victim is aggrieved by and dissatisfied with the judgment of acquittal, or convicting for a lesser offence or imposing inadequate compensation, victim shall have a right to prefer an appeal aga....