Calcutta High Court (Appellete Side)
Prasanna Kumar Nahata vs The State Of West Bengal & Anr on 22 May, 2025
2025:CHC-AS:929
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 2782 of 2018
Prasanna Kumar Nahata
Versus
The State of West Bengal & Anr.
With
C.R.R. 3491 of 2019
Abhishek Dhanania
Versus
The State of West Bengal & Anr.
For the Petitioner : Mr. Ayan Bhattacharjee, Ld. Sr. Adv.
In CRR 2782 of 2018 Mr. Apalak Basu, Adv.
& Opposite Party No. 2 Ms. Sayanti Santra, Adv.
In CRR 3491 of 2019 Ms. Sanghamitra Mridha, Adv.
For the petitioner : Mr. Debangan Bhattacharjee, Adv.
In CRR 3491 of 2019 Mr. Mahiul Islam, Adv.
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For the Opposite Party No. 2 : Mr. Souvik Mitter, Adv.
In CRR 2782 of 2018 Mr. Debangan Bhattacharjee, Adv.
Mr. Mahiul Islam, Adv.
Heard On : 03.03.2025
Judgment On : 22.05.2025
Ajay Kumar Gupta, J:
1.
Both the applications have taken up together for disposal for
the sake of convenience and passing a common Judgment as the
facts, issues and impugned judgment and order under challenged are
similar in both the Revisional applications.
2. CRR No. 2782 of 2018 has been filed under Section 401 read
with Section 482 of the Code of Criminal Procedure, 1973 by the
complainant/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.
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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 4 th August,
2018 passed by the Learned Metropolitan Magistrate, 14 th 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 of trial court.
5. The brief facts of this case are relevant for the purpose of
disposal of this case as follows: –
5a. The complainant/petitioner Prasanna Kumar Nahata
initiated a proceeding under Section 138 of the N.I. Act against the
accused being CS Case No. 0053954 of 2016. After considering oral
and documentary evidences of the witnesses, the Learned Trial Court
finally came to its logical conclusion and convicted the opposite party
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no. 2 and thereby ordered to pay fine – cum- compensation to the
tune of Rs. 15,00,000/- (Rupees Fifteen Lakhs) only to the
complainant/petitioner within 30 days from the date of order, in
default, to suffer simple imprisonment for six months.
5b. In the said proceeding, the complainant, inter alia, alleged as
follows: –
a) That the complainant and accused were known to
each other and in the 3rd week of February, 2012,
the petitioner/accused herein requested the
complainant/opposite party to provide a temporary
accommodation commercials loan for a sum of Rs.
15,00,000/- (Rupees Fifteen Lacs) only to the
petitioner.
b) That complainant/opposite party advanced a sum
of Rs. 15,00,000/- (Rupees Fifteen Lacs) only to the
petitioner on 20.02.2015, payable on demand along
with interest @ 12% p.a. The petitioner had paid
interest from time to time at the interval of 3-4
months. On 06.02.2015, the petitioner has lastly
paid interests upto 26.11.2015 by NEFT in respect
of the above sum of Rs. 15, 00,000/- (Rupees Fifteen
Lacs) only.
c) That the petitioner to pay his existing liabilities
and lawful dues, issued an account payee cheque
being Cheque no. 000015 dated 01.10.2015 for Rs.
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15,00,000/- (Rupees Fifteen Lacs) only, drawn on
HDFC Bank, Dr. U.N. Brahmachari Street branch,
Kolkata – 700017, in favour of the complainant.
d) That when the complainant deposited the said
cheque with its banker, Canara Bank, Canning
Street Branch, Kolkata – 700001, on 19.12.2015, for
encashment within the stipulated period but the
said cheque was returned unpaid on 21.12.2015
with the remark “fund insufficient”.
e) On 31.12.2015, the complainant/opposite party’s
lawyer under the instruction of the complainant sent
a demand notice dated 31.12.2015, in terms of
section 138(b) of the Negotiable Instruments Act and
called upon the accused persons to pay the amount
of the dishonoured cheque but failed to 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.
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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, the Learned Trial Court is at liberty to take
appropriate legal step for complying with the order passed by the
Learned Trial Court on 04.08.2018 though the appellant/convict was
not present or represented by his Learned Advocate on the date of
hearing. Therefore, impugned judgment dated 19.09.2019 is not valid
in the eye of law since the appeal should not be dismissed in absence
of Appellant/convict or his learned counsel. Accordingly, as per
convict, the Judgment dated 19.09.2019 is liable to be set aside and
remanded back to the Appellate Court for proper adjudication.
5e. On the other hand, the complainant filed Criminal Revisional
application for enhancement of compensation contending therein that
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as per the provision of Section 138 of the N.I. Act, the compensation
amount must be generally the double the amount of the cheque
amount.
6. It was submitted on behalf of the petitioner/convict that the
Learned Additional Sessions Judge also dismissed the said appeal
without analysing proper evidence, oral and documentary and passed
the judgment in casual and mechanical manner and, for that, the
accused/convict suffered prejudice as such, impugned judgment and
order dated 19.09.2019 is required to be set aside for the ends of
justice and remanded back the appeal for proper adjudication as
concept of audi alteram partem, is the basic concept of principle of
natural justice. The denial of audi alteram partem is the violation of
principle of natural justice as enshrined under Articles 14 and 21 of
the Constitution of India. The Hon’ble High Court, time and again,
held that in criminal appeal, accused must be heard and in absence
of the accused/convict or his/her advocate, decision cannot be
passed on merits. Right to legal representation is always in favour of
the accused/convict. As such, right, if violated, the impugned
judgment would be bristles with illegalities and infirmities. For that
reason, the judgment should be set aside. Appeal against the
conviction is a statutory right to the convict/accused. While deciding
the appeal, the Learned Additional Sessions Judge has taken an
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adverse presumption and has affirmed order of conviction without
having any justifiable reasons. The ex parte decision in the absence
of the petitioner not only violated the principle of natural justice but
also failed to give reasoned decision. Since, the Learned Additional
Sessions 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.1. He also placed reliance of a
judgment passed in the case of Maneka Gandhi Vs. Union of India2
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.
1
(2017) 2 C Cr LR (Cal) 178
2
AIR 1978 SC 597
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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/appellant had himself admitted
during examination under Section 313 of the CrPC that he has no
intention to deprive the complainant, Mr. Prasanna Kumar Nahata
from his legal dues. Since, he has facing financial crisis he was
unable to pay the loan amount as long as property is not sold as
agreed. Therefore, there is nothing remains with the appeal. This is a
sure short case of the dismissal. Accordingly, the Learned Additional
Sessions Judge affirmed the order of the Learned Trial Court and
dismissed the appeal. Question of prejudice to the accused/convict
does not arise at all. Therefore, revision filed by the convict/accused
is liable to be dismissed as the application has devoid of merit.
9. With regard to enhancement of the compensation amount,
the learned counsel appearing on behalf of the convict/accused
vehemently argued and submitted that though the
petitioner/complainant filed Revisional application, there is a specific
provision to file appeal under Section 372 of the CrPC because victim
shall have a right to prefer an appeal against any order passed by the
Court either acquitting the accused or convicting for a lesser offence
or imposing inadequate compensation and such appeal shall lie to
the Court to which the appeal ordinarily lies against the order of
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conviction of such Court. The said provision was amended in the year
2008 in the CrPC. It gives the victim rights to prefer an appeal
against any adverse order as aforesaid passed by the Learned Trial
Court.
10. It was further submitted that a sentence of fine imposed by
the High Court, Court of Sessions or Metropolitan Magistrate or any
Magistrate of the 1st Class is appealable under Section 374 of the
CrPC provided such fine exceeds a sum of Rs. 1,000/-, 200/- and
100/- respectively as provided under Section 376 of the CrPC thereof.
It is also laid down in the provision of Section 376 of the CrPC that
sentence of fine not exceeding the minimum limit shall not become
appealable merely on the score imprisonment is prescribed in default
of payment of such fine. Compensation par se is not appealable at the
behest of the conviction under the aforesaid provision unless it forms
a part of the fine under Section 357 (1) of the CrPC is appealable as
such. However, inadequacy of compensation made appealable at the
behest of the victim under the proviso of Section 372 of the CrPC.
Therefore, the revision 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 @
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Partha Sarathi Mitra Vs. Manor Travels Private Limited & Anr. 3
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 Court passed in the case of
Competition Commission of India Vs. Steel Authority of India
Limited and Anr.4, particularly paragraphs 50 and 51 thereof:
“50. The principle of “appeal being a statutory right and
no party having a right to file appeal except in
accordance with the prescribed procedure” is now well3
(2017) 2 C Cr LR (Cal) 178
4
(2010) 10 SCC 744
122025:CHC-AS:929
settled. The right of appeal may be lost to a party in face
of relevant provisions of law in appropriate cases. It
being a creation of a statute, legislature has to decide
whether the right to appeal should be unconditional or
conditional. Such law does not violate Article 14 of the
Constitution. An appeal to be maintainable must have
its genesis in the authority of law. Reference may be
made to M. Ramnarain Private Limited v. State
Trading Corporation of India Limited, [(1983) 3
SCC 75] and Gujarat Agro Industries Co. Ltd. v.
Municipal Corporation of the City of Ahmedabad
[(1999) 4 SCC 468].
51. Right of appeal is neither a natural nor an inherent
right vested in a party. It is substantive statutory right
regulated by the statute creating it. Kondiba Dagadu
Kadam vs. Savitribai Sopan Gujar [(1999) 3 SCC
722] and Kashmir Singh vs. Harnam Singh [(2008)
12 SCC 796 : AIR 2008 SC 1749] may be referred to
on this point. Thus, it is evident that the right to appeal
is not a right which can be assumed by logical analysis
much less by exercise of inherent jurisdiction. It
essentially should be provided by the law in force. In
absence of any specific provision creating a right in a
party to file an appeal, such right can neither be
assumed nor inferred in favour of the party.”
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ii) As per Section 372 of CrPC, an appeal from any Judgment or
Order of a criminal court shall lie in terms of the provisions available
under CrPC or any other law for the time being in force.
iii) As there is no provision for appeal or revision in the NI Act, the
right to appeal has to be determined according to procedure
prescribed under Chapter XXIX of CrPC particularly Section 372 of
CrPC thereof. From an analysis of Section 372 of Cr PC, the victim
shall have the right to appeal in the following contingencies:
a) Against the order of acquittal;
b) Against the order of conviction for lesser offence;
c) Against the order of conviction for imposing inadequate
compensation;
Therefore, it is evident that 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
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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 counsel has placed reliance of a judgment passed in R.
Vijayan Vs. Baby & Anr.5, particularly paragraphs 9, 10, 13 and 14
as under:-
“9. It is evident from Sub-Section (3) of section 357 of the
Code, that where the sentence imposed does not include
a fine, that is, where the sentence relates to only
imprisonment, the court, when passing judgment, can
direct the accused to pay, by way of compensation, such
amount as may be specified in the order to the person
who has suffered any loss or injury by reason of the act
for which the accused person has been so sentenced.
The reason for this is obvious. Sub-section (1) of section5
(2012) 1 SCC 260
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357 provides that where the court imposes a sentence of
fine or a sentence of which fine forms a part, the Court
may direct the fine amount to be applied in the payment
to any person of compensation for any loss or injury
caused by the offence, when compensation is, in the
opinion of the court, recoverable by such person in a
Civil Court. Thus, if compensation could be paid from out
of the fine, there is no need to award separate
compensation. Only where the sentence does not
include fine but only imprisonment and the court finds
that the person who has suffered any loss or injury by
reason of the act of the accused person, requires to be
compensated, it is permitted to award compensation
under compensation under section 357(3).
10. The difficulty arises in this case because of two
circumstances. The fine levied is only Rs.2000/-. The
compensation required to cover the loss/injury on
account of the dishonour of the cheque is Rs.20,000/-.
The learned Magistrate having levied fine of Rs.2,000/-,
it is impermissible to levy any compensation having
regard to section 357(3) of the Code. The question is
whether the fine can be increased to cover the sum of
Rs. 20,000/- which was the loss suffered by the
complainant, so that the said amount could be paid as
compensation under section 357(1)(b) of the Code.
13. It is of some interest to note, though may not be of
any assistance in this case, that the difficulty caused by
the ceiling imposed by section 29(2) of the Code has
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been subsequently solved by insertion of section 143 in
the Act (by Amendment Act No.55 of 2002) with effect
from 6.2.2003. Section 143(1) provides that
notwithstanding anything contained in the Code, all
offences under Chapter XVII 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 of the
appeal before the sessions court, the appellant has also
lost the opportunity of recovering the amount by way of
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civil suit. In view of this peculiar position, we requested
Dr. Rajiv Dhavan, senior counsel, to assist us as an
Amicus Curiae to suggest methods to improve the
disposal of cases under section 138 of the Act and also
improve the relief that could be granted in such cases.”
vii) An Order of compensation can only be passed along with a
substantive sentence under Section 357(3) of CrPC.
a) Appeal being a statutory right, the same cannot be
assumed by logical analysis and it should be specifically
provided by statute.
b) As per Section 372 of the CrPC, inadequacy of fine
cannot be appealable as the word ‘fine’ is conspicuously
absent therein.
c) In a trial under Section 138 of NI Act, in case of
conviction, the court is obligated to pass an order of
“Sentence”.
d) Fine is a part of sentence in terms of Section 53 of IPC,
whereas compensation is not. An order of fine can be
applied to a victim/complainant as compensation as per
Section 357(1)(b) of Cr PC. Nevertheless, it remains a fine.
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e) An order of compensation can only be passed in a case
where substantive sentence of imprisonment has been
passed in terms of Section 357(3) of CrPC.
viii) Judging on the aforesaid touchstone, it will be evident that the
Learned Trial Magistrate has only passed an Order of fine which was
applied as compensation as per Section 357(1)(b) of Cr PC. Such fine
cannot be judicially considered to be compensation as no substantive
imprisonment was awarded.
ix) As inadequacy of fine cannot be subject matter of an appeal under
any provision falling under Chapter XXIX of CrPC, therefore, the
petitioner did not have any appellate remedy and present revision is
perfectly maintainable.
x) A revision under Section 401 read with Section 482 of CrPC is
perfectly maintainable before this Hon’ble Court. A right of appeal will
not eclipse the inherent power of this Hon’ble Court, which this
Hon’ble Court enjoys by virtue of its existence. Learned counsel for
the Petitioner/complainant has placed a reliance of a judgment
passed in the case of Punjab State Warehousing Corporation,
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Faridkot vs. Shree Durga Ji Traders and Ors. 6, particularly
paragraphs 5 and 12 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
aside such an order so that the Trial Court could
proceed with the trial on merits.”
6
(2011) 14 SCC 615
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xi) The fine imposed under Section 138 of NI Act may be deemed to be
compensation for paying the same to complainant/victim on a
holistic reading of Sections 138 and 143 of NI Act read with Section
357(1)(b) of Cr PC. However, the same cannot be compensation stricto
senso. Therefore, the revision so filed in the present form is
maintainable.
13. From the above facts and arguments canvassed by the
learned counsels for the parties, this Court finds that two vital
questions emerge to be decided:
Firstly, whether against an order of acquittal or inadequate fine or
compensation, a revision is maintainable?
Secondly, whether the dismissal of appeal on merits by the Learned
Additional Sessions Judge in absence of the accused/convict or none
representation by the learned Advocate is justified or liable to be set
aside?
14. Learned Trial Court has convicted the accused/petitioner
and sentenced him thereby ordered to pay fine – cum- compensation
to the tune of Rs. 15,00,000/- (Rupees Fifteen Lakhs) only to the
complainant/petitioner within 30 days from the date of order, in
default, to suffer simple imprisonment for six months. The whole
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compensation amount of Rs. 15,00,000/- (Rupees Fifteen Lakhs) only
be paid to the complainant in view of the provision of Section 357(1)
(b) of the CrPC. Therefore, it is crystal clear that the trial court
directed to pay fine-cum-compensation amount.
15. The punishment provided under Section 138 of the NI Act
is amended and after amendment, the convict be punished with
imprisonment for a term which may be extended to two years or with
fine which may extend to twice the amount of cheque, or with both if
accused found guilty of offence. Here the word ‘Fine’ is indicated.
16. The trial court imposed fine-cum-compensation upon the
convict. Section 143 (1) of NI Act provides that notwithstanding
anything contained in the Code, all offences under Chapter XVII 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
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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’ as ‘fine’ for the purposes of
Section 64 of I.P.C. and thereby prescribes a procedure
established by law to deprive a defaulter of his liberty in
case of failure to pay such compensation. It is trite law
that a procedure established by law depriving liberty of
an individual must be just, reasonable and fair so as to
survive the test of constitutionality on the touchstone of
Article 14 and 21 of the Constitution. Judged from this
angle, any interpretative exercise which deems an
‘award of compensation’ as ‘sentence of fine’ for the
purposes of Section 64 of I.P.C. and empowers the Court
232025:CHC-AS:929
to impose imprisonment in default of payment of such
compensation must also bring within the sweep of such
legal fiction the appellate remedy available under
Section 374 read with Section 376 of the Code of
Criminal Procedure against the ‘sentence of fine’ and
hold that ‘compensation’ in default of payment of which
imprisonment may be imposed shall be deemed to be a
‘sentence of fine’ for the purposes of such appellate
remedy. In other words, if by judicial interpretation a
procedure to impose imprisonment in default of payment
of compensation is acknowledged by treating
‘compensation’ as ‘fine’, the remedy of appeal available
against such ‘sentence of fine’ must also be extended to
‘orders of compensation’. To interpret otherwise would
create an inequitable and unfair situation to the
prejudice of an accused by permitting the Court to
impose imprisonment in default of payment of
compensation by treating it as a fine on the one hand
but not permitting him to appeal against such order of
compensation, on the other hand, since it is not a
‘sentence of fine’.
16. Hence, I am of the view that the legal fiction
equating ‘compensation’ with ‘fine’ for the purposes of
Section 64 of the I.P.C. and permitting the Court to pass
direction for imprisonment in default of payment of such
compensation would be unjust, unfair and
unconstitutional if such legal fiction is not extended to
the appellate remedy engrafted in Section 374 read with
Section 376 of the Cr.P.C. and compensations which are
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coupled with a direction for imprisonment as a default
clause are not made appealable under the aforesaid
provision of law as if it were a ‘sentence of fine’.
17. Accordingly, 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
252025:CHC-AS:929
offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
Court.”
Section 482 of the CrPC reads as follows:-
“482. Saving of inherent power of High Court.-
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice.”
19. In case of Joseph Stephen and Others Vs. Santhanasamy
and Others7, the Hon’ble Supreme Court held in paragraph nos. 8.2,
13, 13.1 and 13.2 as under:-
“8.2. (ii) In a case where the victim has a right of
appeal against the order of acquittal, now as provided
under Section 372CrPC and the victim has not availed
such a remedy and has not preferred the appeal,
whether the revision application is required to be
entertained at the instance of a party/victim instead
of preferring an appeal?
13. Now so far as Issue (ii), namely, in a case where
no appeal is brought though appeal lies under the
Code, whether revision application still to be7
(2022) 13 SCC 115;
26
2025:CHC-AS:929
entertained at the instance of the party who could
have appealed, the answer lies in sub-section (4) of
Section 401CrPC itself. Sub-section (4) of Section
401CrPC reads as under:
“401. (4) where under this Code an appeal
lies and no appeal is brought, no proceeding
by way of revision shall be entertained at the
instance of the party who could have
appealed.”
13.1. It cannot be disputed that now after the
amendment in Section 372 CrPC after 2009 and
insertion of the proviso to Section 372 CrPC, a victim
has a statutory right of appeal against the order of
acquittal. Therefore, no revision shall be entertained
at the instance of the victim against the order of
acquittal in a case where no appeal is preferred and
the victim is to be relegated to file an appeal. Even the
same would be in the interest of the victim
himself/herself as while exercising the revisional
jurisdiction, the scope would be very limited, however,
while exercising the appellate jurisdiction, the
appellate court would have a wider jurisdiction than
the revisional jurisdiction. Similarly, in a case where
an order of acquittal is passed in any case instituted
upon complaint, the complainant (other than victim)
can prefer an appeal against the order of acquittal as
provided under sub-section (4) of Section 378 CrPC,
subject to the grant of special leave to appeal by the
High Court.
27
2025:CHC-AS:929
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 complainant, as the case
may be, shall not be entertained and the victim or the
complainant, as the case may be, shall be relegated
to prefer the appeal as provided under Section 372 or
Section 378(4), as the case may be. Issue (ii) is
therefore answered accordingly.”
28
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20. In the case of Subhash Chand Vs. State (Delhi
Administration)8, the Hon’ble Supreme Court held in paragraph nos.
13, 18 and 19 as under: –
“13. Section 378 of the Code prior to its amendment
by Act 25 of 2005 read as under:
“378.Appeal in case of acquittal.–(1) Save
as otherwise provided in sub-section (2), and
subject to the provisions of sub-sections (3)
and (5), the State Government may, 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.
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946) or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, the Central
Government may also direct the Public
Prosecutor to present an appeal, subject to the8
(2013) 2 SCC 17.
29
2025:CHC-AS:929
provisions of sub-section (3), to the High Court
from the order of acquittal.
(3) No appeal under sub-section (1) or sub-
section (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in
any case instituted upon complaint and the
High Court, on an application made to it by the
complainant in this behalf, grants special
leave to appeal from the order of acquittal, the
complainant may present such an appeal to
the High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order
of acquittal shall be entertained by the High
Court after the expiry of six months, where the
complainant is a public servant, and sixty
days in every other case, computed from the
date of that order of acquittal.
(6) If in any case, the application under sub-
section (4) for the grant of special leave to
appeal from an order of acquittal is refused,
no appeal from that order of acquittal shall 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
30
2025:CHC-AS:929
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 application made
to it by the complainant, the High Court grants special
leave to appeal from the order of acquittal, the
complainant could present such an appeal to the High
Court. Sub-section (5) of Section 378 of the Code
provided for a period of limitation. Sub-section (6) of
Section 378 of the Code stated that if in any case, the
application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall
lie under sub-sections (1) or (2). Thus, if the High
Court refused to grant special leave to appeal to the
complainant, no appeal from that order of acquittal
31
2025:CHC-AS:929
could be filed by the State or the agency contemplated
in Section 378(2). It is clear from these provisions that
earlier an appeal against an order of acquittal could
only lie to the High Court. Sub-section (4) was aimed
at giving finality to the orders of acquittal.
18. If we analyse Sections 378(1)(a) and (b), it is clear
that the State Government cannot direct the Public
Prosecutor to file an appeal against an order of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence because of the
categorical bar created by Section 378(1)(b). Such
appeals, that is, appeals against orders of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence can only be filed in the Sessions
Court at the instance of the Public Prosecutor as
directed by the District Magistrate. Section 378(1)(b)
uses the words “in any case” but leaves out orders of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence from the control
of the State Government. Therefore, in all other cases
where orders of acquittal are passed appeals can be
filed by the Public Prosecutor as directed by the State
Government to the High Court.
19. Sub-section (4) of Section 378 makes provision for
appeal against an order of acquittal passed in a case
instituted upon complaint. It states that in such case
if the complainant makes an application to the High
Court and the High Court grants special leave to
appeal, the complainant may present such an appeal
32
2025:CHC-AS:929
to the High Court. This sub-section speaks of “special
leave” as against sub-section (3) relating to other
appeals which speaks of “leave”. Thus, the
complainant’s appeal against an order of acquittal is
a category 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 against any order passed
33
2025:CHC-AS:929
by the Court and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court.
The answer of the first question is in negative. Therefore, revision is
not maintainable.
22. In so far as to the second question is concerned, it is not
disputed by the parties that the Learned Additional Sessions Judge,
Fast Track Court – II, City Sessions Court, Calcutta dismissed the
appeal on merits though no appellant was present or represented by
any learned advocate on the date of hearing. The principle of natural
justice has been ignored at the time of disposal of Appeal. It is settled
principle of law that any criminal appeal should not be dismissed on
merits or on the ground of default in absence of representation by
learned advocate for the appellant (s). In this regard, the Hon’ble
Supreme Court, time and again, reiterates that a court cannot
dismiss the appeal filed by an appellant/accused merely because of
non-representation or default of the advocate for the
appellant/accused. If the accused does not appear through counsel
appointed by him/her, the Court is obliged to proceed with the
hearing of the case only after appointing amicus curiae. This Court
relies a judgment passed in the case of K. Muruganandam & Ors.
34
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Vs. State Rep. by the Deputy Superintendent of Police and Anr. 9,
where in Hon’ble Supreme Court held in paragraph nos. 8 and 9 as
under:
“8. It is well settled that if the accused does not appear
through counsel appointed by him/her, the Court is
obliged to proceed with the hearing of the case only after
appointing an amicus curiae, but cannot dismiss the
appeal merely because of non-representation or default
of the advocate for the accused (see Kabira vs. State
of Uttar Pradesh10 and Mohd. Sukur Ali vs. State of
Assam11).
9. Accordingly, we have no hesitation in setting aside
the impugned judgment and order and relegate the
parties before the High Court for hearing of Criminal
Appeal No. 246/2012 afresh on its own merits and in
accordance with law.”
23. The judgment referred by the petitioner/complainant in the
case of Punjab State Warehousing Corporation (supra) is not
applicable in the present case as the facts and circumstances of the
present case are different.
24. In the light of the aforesaid discussion and observations, the
Criminal Revisional application being CRR No. 2782 of 2018 is,
9
Criminal Appeal No. 809/2021 (arising out of SLP (Crl.) No. 5690/2021)
10
1981 (Supp) Supreme Court Cases 76
11
2011 (4) SCC 729
35
2025:CHC-AS:929
thus, dismissed and CRR No. 3491 of 2019 is, thus, allowed.
Consequently, connected applications, if any, are also, thus, disposed
of.
25. Accordingly, 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
thereby affirmed the judgment of conviction and sentence dated 4 th
August, 2018 passed by the Learned Metropolitan Magistrate, 14 th
Court, Calcutta in connection with Case No. CS-0053954 of 2016 is
hereby set aside.
26. Interim order, if any, stands vacated.
27. The Appeal being Criminal Appeal No. 79 of 2019 is remanded
back to the Appellate Court below with a direction to dispose of on its
own merits independently and in accordance with law after affording
an opportunity of hearing to the parties. In the event none represent
the appellant/convict, the same may be disposed of after appointing
amicus curiae. I also make it clear that this court does not get an
opportunity to enter into the merits of the instant case as such
Appellate Court shall not influence by any of the observation,
whatsoever, made herein above.
36
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28. The petitioner/complainant may also take recourse of his
grievances by filing appeal in accordance with law if so advised.
29. Registry, Circuit Bench at Jalpaiguri is directed to transmit
the record to the Principal Bench of this Court.
30. Parties shall act on the server copies of this Judgment
uploaded on the official website of this Court.
31. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J.)
P. Adak (P.A.)