CHACKO JOSEPH Vs. T O JOSE

JUDGEMENT

(1.) THIS Special Criminal Application has been filed by the applicant-original accused being aggrieved dissatisfied by the order dated 10-12-2010 passed by the learned Addl. Sessions Judge, Fast Track Court No.2, Jamnagar, in Criminal Appeal No.52 of 2010 whereby the learned Judge has released the applicant on bail and ordered to deposit compensation of Rs.1,00,000/-. The appeal was filed seeking to quash and set aside the judgment and order dated 18-11-2010 passed by the learned Adl. Chief Judicial Magistrate, Jamnagar, in Criminal Case No.1230 of 2006 convicting and sentencing the applicant for the offence punishable under Sec.138 of the Negotiable Instruments Act to suffer SI for six months with fine of Rs.5,000/- in default to suffer further SI for two months and to deposit double the amount of the cheque as compensation.

(2.) THE facts as appeared in this application in short are that a criminal complaint being Criminal Case No.1230 of 2006 was filed by the original complainant-present respondent No.1 before the learned Addl. Chief Judicial Magistrate, Jamnagar, for the offence punishable under Sec.138 of the Negotiable Instruments Act inter alia alleging that the present applicant was offered a loan of Rs.7,50,000/- by the respondent No.1 for expansion of his business in Gujarat and a cheque for the said amount towards repayment of the said loan was also given by him. When the said cheque was presented with his banker, it was dishonoured with an endorsement 'refer to drawer' on 15-12-2005. Hence, a notice dated 24-12-2005 was issued through his advocate on the applicant asking him to make payment within fifteen days. Since he did not make payment even after the said period, the aforesaid complaint was filed and the offence was registered.

(3.) IT is submitted by learned advocate, Mr.Nitin Amin that the trial court has imposed sentence with fine and the applicant was ordered to pay compensation under Sec.357 of the Code of Criminal Procedure. According to him, court can pass order either to make payment of compensation or can impose fine but not both at the same time. He, therefore, presses this application on this ground and did not argue on merits. He has relied on the cases of State of Punjab Versus Gurmej Singh reported in III (2002)CCR 124 (SC) and also Sivasuriyan Vs. Thangavelu reported in (2006)1 Supreme Court Cases (Cri) p.532.