Pradip Kumar Biswas, J.@mdashParties are present before me and heard them. The matter is taken up for hearing treating the same as on day''s list.
2. By filing this application under sections 397/401/482 of the Code of Criminal Procedure, the accused-petitioner has prayed for setting aside the order of conviction and sentence passed by the learned Sessions Judge. Bakura in Criminal Appeal No. 14 of 2000 affirming the conviction and sentence passed by the learned Judicial Magistrate. First Class. 7th Court in Complaint Case No. 153 C of 1998/Trial No. 95/98 whereby the learned Magistrate was pleased to convict the accused-petitioner. Ramendra Nath Shit, u/s 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for one year which has since been modified by the appellate court to the extent that the accused-petitioner should pay double the amount of the cheque amounting to Rs. 80.000/- to the complainant/opposite party within three months from the date of the judgement and order, failing which the accused-appellant should surrender before the appropriate court for serving out the sentence.
3. I have heard the parties at length. Learned Advocate appearing for the opposite party No. 2 has submitted that his client has by now received the involved amount of Rs. 40,000/- from the accused-petitioner and at the present moment, he has no grievance against the accused-petitioner and in that view of the fact, he submits that in the changed situation, necessary order may be passed to secure ends of justice.
4. Hearing the parties before me and specially taking into consideration that since it has been held by the Apex Court in a decision reported in 2001 C Cr LR (SC) 228 in the case of Pankajbhai Nagjibhai Patel vs. State of Gujarat & Anr., that non-obstinate clause provided in Section 142 of the N. I. Act does not confer any special power to a Magistrate to impose a fine exceeding the limit provided in the general law, the learned Sessions Judge was not justified to modify and convert the sentence to the extent that the accused-appellant shall pay double the amount of cheque amounting(sic) Rs. 80,000/- to the respondent within three months. Curiously enough, he has not mentioned as to whether the amount shall be paid as fine or as compensation. If it was as a fine, certainly the learned Additional Sessions Judge was in error but he was, however, competent to pass any amount to be payable as compensation.
5. Be that as it may, taking into consideration the change in the situation and particularly in view of the fact that the opposite party No. 2 i.e. the complainant of this case has no grievance and since he has received the involved amount from the accused petitioner, he does not want to proceed further with this case.
6. Taking into consideration the aforesaid situation and applying the same with the ratio as has been enunciated by the Apex Court passed in the decision reported in
7. Applying the ratio in the fact situation of this case, I am inclined to hold that the conviction and sentence imposed upon the accused appellant should be set aside and the proceeding u/s 138 of the N.I. Act started against this accused-appellant should be quashed.
8. In that view of the fact, the present proceeding started against this accused-appellant stands quashed and in the given situation, the accused appellant be discharged from the bail bond. The revisional application is thus disposed of.
