MAGANLAL JAIN Vs. ABHIJEET KUMAR DASH

JUDGEMENT

(1.) The Judgment and order dated 19-10-2001 passed by the learned J.M.F.C., Bolangir in I.C.C. Case No. 40 of 1997 (Trial No. 86 of 2001) is challenged by the complainant.

(2.) Case of the complainant-petitioner is that the opposite party borrowed a sum of Rupees one lakh in cash from him on 25-9-1995 with promise to repay same on demand. In token of said transaction the opposite party executed a money receipt on 25-9-1995. When the petitioner demanded payment of the money the opposite party issued a cheque in his favour towards,repayment of the aforesaid amount drawn by the Central Bank of India, Janpath, Bhubaneswar vide cheque No. 033762 dated 30-10-1996. The said cheque was presented on 12-4-1997 in the State Bank of India, Tusura Branch. On 30-4-1997 the State Bank of India, Tusura Branch intimated the complainant petitioner that the amount standing to"the credit of the opposite party in his account was insufficient for payment. After receiving the said information from the bank, the petitioner issued a notice to the opposite party on 12-5-1997 intimating the said fact and making a further request to pay the amount within fifteen days from the date of receipt of the notice. The opposite party received the notice on 10-6-1997 but failed to pay the money within the time stipulated, as a result of which the complaint was filed alleging therein that the offence under Section 138 of the Negotiable Instruments Act has been committed by the opposite party. The trial Court after consideration of the oral and the documentary evidence placed before him convicted the opposite party of the offence and sentenced the opposite party to pay a fine of Rs. 5000/-, in default, to undergo R.I. for three months and as compensation directed that out of a fine amount of Rs. 5000/-, Rs. 3000/- shall be paid to the complainant petitioner. .

(3.) Shri A.C. Mohanty, learned counsel appearing for the petitioner complainant submitted that though the learned Magistrate does not have jurisdiction/power to impose fine of more than Rs. 5000/-, as per the decision of the Apex Court, apart from fine as provided in the statute, the Magistrate could have allowed compensation. There was no reason for the learned Magistrate to allow compensation of Rs. 3000/- out of the fine amount of Rs. 5000/- as the cheque amount was for rupees one lakh and the compensation awarded is highly inadequate. Learned counsel appearing for the opposite party, on the other hand, submitted that the learned Magistrate having no jurisdiction to impose fine amount more than rupees five thousand, there is illegality in the impugned order so far as sentence is concerned.