Mr. Vijay DattGahtori, Mr. Ajit Nair and Mr. NityanandKhatua, Advocates v. STATE OF NCT OF DELHI AND ANR

Judgment

1. Petitioner, a senior citizen, under continuous incarceration for the past 7 years and 10 months, unable to discharge his debt of Rs. 1.3 crores, stands before this Court convicted and sentenced under Section 138 of Negotiable Instruments Act, 1881 (NIA for short). Qua his aggregate liability of the principal amount of Rs.1.30 crore, he was tried in multiple cheque dishonour cases and held guilty in 82 different trials. He was also directed to deposit various sums of fine/compensation,in default of which to undergo additional sentences of imprisonment.

2. He seeks indulgence to set him free, either by equalising the sentences already undergone in default of payment of Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 1 of 36 fine/compensation, as ordered, and/or otherwise pass appropriate orders to reduce the same by invoking inherent powers under section 528 of the BNSS. It is stated that he was taken in custody on

23.10.2017 and since then he has been in prison.

3. Case set up by the petitioner is that he has already suffered the misfortune of financial calamity owing to which he is under infinite incarceration and his family is living under literal starvation and penury. Payment of fine/compensation as awarded by the trial courts is beyond his means. Non-payment thereof is thus not deliberate, but due to his being the victim of circumstances caused by the financial losses suffered in business. He doesn’t even have money to assail the Trial Court orders and thus is languishing in jail, though in some cases he unsuccessfully tried.

4. Prior to his conviction, petitioner was running a business in the name and style of M/s Shiva Enterprises, as a sole proprietor, in course of which he had taken certain loans. Since he was unable to service his debts, he turned bankrupt resulting in as many as 165 cheque dishonour complaints against him. Out of which, he was convicted in 82, discharged/acquitted in 81 and currently 2 trials are still pending against him.

5. In response to the petition, a report dated 21.03.2025 along with nominal roll has been placed on record by the competent authority of the jail which, inter alia, shows the case wise fine amount (under the head/column of fine but described as compensation against relevant entry in the table) and default punishment imposed by the learned trial Court. It reads as under :- Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 2 of 36 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 3 of 36 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 4 of 36 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 5 of 36 ANNEXURE A Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 ANNEXURE B Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 ANNEXURE C ANNEXURE D Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023

6. To sum up the he above data, the petitioner has undergo gone his total sentence in 23 case ses (Annexure A of report), in 59 cas cases he has Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 undergone the substantive sentence but default sentence for not paying compensation/fine remains to be served (Annexure B of report), in 2 cases he is still an under trial (Annexure C of report), and in 81 cases he has been acquitted/ discharged (Annexure D of report).

7. In the aforesaid backdrop, I have heard the rival contentions and perused the case file. Pertinent it is to note that the Report ibid also reveals that as on the date of report, petitioner has though already undergone the substantive sentences in all cases he was convicted/sentenced, but is yet to serve about 9 years of default imprisonment in lieu of the payment of fine/compensation. Thus, he is currently undergoing sentences in default of the payment of compensation, since he was unable to pay the compensation/fine.

8. Learned counsel for the petitioner would contend that since

there were different trial courts involved herein, they had no occasion to apply their judicial mind while directing the petitioner to serve separate sentences one after the other which is not only against the basic tenets of natural justice but also a complete travesty.

8.1 Furthermore, he would point out that each of the trial courts while convicting the petitioner has mis-directed themselves by imposition of two sentences at the same time i.e. one being substantive for conviction under Section 138 of the Act, ibid, and the second in default of non-deposit of the fine amount. As far as the substantive sentence awarded or being pronounced guilty and convicted under Section 138 of NI Act, the petitioner/convict has already completed his term in every case out of all the 82 in which he was sentenced by different trial courts. It is pleaded in the petition Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 15 of 36 that, if the second part of the sentence for default in payment of fine is to be undergone by the petitioner the same would mean that as on the date of filing of the petition he shall have to serve another 11 years and 3 months (recorded in nominal roll dated 07.02.2023, appended as ‘Annexure-A’) which is clearly much longer than the substantive sentence itself.

8.2 He would submit that the scheme of the Negotiable Instruments Act does not envisage that the aggregate/combined period of the substantive imprisonment and default imprisonment can exceed the maximum prescribed maximum two years’ period of substantive sentence for the offence. Such cannot, in any case, be the intent of the framers of the law. Thus, the Trial Courts’ orders qua the second sentence are not sustainable and deserve to be set aside to that extent, without adverting to the merits of the criminal culpability of the petitioner.

8.3 He would also urge that petitioner has since already served about 7 years and 10 months of his sentence, way beyond the substantive sentence, and while in jail he is also suffering from age related issues and being a senior citizen, he deserves a lenient view to be taken by this Court.

8.4 He would also submit in the alternative that the default sentences of the petitioner be ordered to run concurrently and thus seeks his release.

9. Per contra, while opposing the aforesaid arguments, learned APP appearing for the State would urge that petition is liable to be dismissed out rightly in view of the intentional default of payment of Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 16 of 36 fine/compensation by the petitioner. She would submit that despite winning, all the 82 complainants are completely left in the lurch. They had been pursuing protracted trials and eventually won the same, and yet, at the end of the day, they are still left high and dry without even glimmer of hope to get their money.

9.1 She would further submit that the possibility of the petitioner deliberately claiming himself to be a pauper cannot be ruled out. She would submit that in case he is let off, it would amount to let the petitioner take advantage of his own wrong. He might have devised it as a clever tactic/strategy to not pay, thinking that it would rather be prudent to undergo the substantive sentence instead of making payment of more than one crore rupees which he has to pay as fine/compensation to the 82 claimants.

10. I shall now proceed to deal with the rival contentions and render my opinion thereon in the succeeding part of the order. ANALYSIS AND DISCUSSION

11. First and foremost, the question that requires redressal here is framed as below :-  Whether, in the event of in multiple cheque dishonors, cumulative default imprisonment for non-payment of fine under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), can exceed the cumulative substantive sentence limit? Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 17 of 36

11.1 Let us first see relevant part of Section 138 of the Negotiable Instruments Act which for ease of reference is reproduced herein below: “138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, 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 the cheque, or with both. x-x-x-x-x” (Emphasis Supplied)

11.2. A perusal of above section shows that it does not provide for sentence of imprisonment in default of payment of fine.

11.3 Before proceeding further, to be noted here that the petition was filed in 2023 and has remained pending since then. In the meantime, the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short- BNSS) came into force with effect from 01.07.2024. In view of this and the savings provisions in section 531 of the BNSS Sanhita, the case is being dealt with reference to the relevant provisions of the Code of Criminal Procedure. However recitals of the various sections are from BNSS, as other than change of number of the sections the contents thereof are same, be it Cr.P.C. or BNSS. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 18 of 36

11.4. As would be seen, under Section 24 of the BNSS [Sentence of imprisonment in default of fine- Section 30 of Cr.P.C] the Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law. Statutory limits on default imprisonment are thus prescribed under the BNSS. Section 24, BNSS [Section 30, CrPC] provides that default imprisonment cannot exceed one-fourth of the maximum substantive term the Magistrate can impose. For Section 138 cases, where the maximum imprisonment is two years, the default term, therefore, cannot exceed six months.

11.5 Cautious approach is required to avoid disproportionate outcomes, such as awarding maximum substantive imprisonment along with maximum fine and maximum default imprisonment. For, such a recourse would tend to blur the line between coercion and punishment. I am of the view that, default imprisonment should be imposed on a case-by-case basis, considering the ability to pay, and ought not to be used as a tool of enhancement of punishment. Ordinarily, the trial court should adopt a judicial approach to first assess the convict’s financial capacity, instead of mechanically imposing default imprisonment in a case under section 138.

11.6 One would have to, therefore, essentially look into the relationship between the substantive provisions of the NIA and the procedural framework of BNSS, particularly regarding default imprisonment for unpaid fines.

11.7 At the core lies the distinction between substantive punishment and default imprisonment. Section 138 of the NI Act prescribes a maximum punishment of two years’ imprisonment, a fine up to twice Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 19 of 36 the cheque amount, or both, but does not specify the consequence of non-payment of fine. Unlike Section 138 supra, Section 8(2) of BNS [Amount of Fine, liability in default of payment of fine, etc. - Section 64 of IPC], 24 of BNSS [Sentence of imprisonment in default of fine- Section 30 of CrPC] and Section 471 BNSS [Money ordered to be paid recoverable as fine– Section 431 Cr.P.C.] explicitly provide consequences of non-payment of fine. Sections ibid, for ease of reference produced here under :- Section 8 BNS:

8. Amount of fine, liability in default of payment of fine, etc.— (1) Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. (2) In every case of an offence— (a) punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment; (b) punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. (3) The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one- fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. (4) The imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence. (5) If the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 20 of 36 of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed,— (a) two months when the amount of the fine does not exceed five thousand rupees; (b) four months when the amount of the fine does not exceed ten thousand rupees; and (c) one year in any other case. (6) (a) The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law; (b) If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate. Section 24 BNSS: “24. Sentence of imprisonment in default of fine.—(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term— (a) is not in excess of the powers of the Magistrate under section 23; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 23.” Section 471 BNSS:

471. Money ordered to be paid recoverable as a fine.—Any money (other than a fine) payable by virtue of any order made under this Sanhita, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 21 of 36 Provided that section 461 shall, in its application to an order under section 400, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 461, after the words and figures “under section 395”, the words and figures “or an order for payment of costs under section 400” had been inserted.

11.8 In all these sections, a common thread/intent runs through i.e. default imprisonment is not an additional punishment for the offence, but a coercive measure to secure compliance with the court’s monetary order. It seems to be more as remedial rather than punitive. Likewise, under Section 138, default imprisonment is not punishment for cheque dishonour, but a consequence of non-compliance of payment of fine, ensuring the two-year cap remains intact. In other words, it is not forced by court of law, but rather a choice by a defaulter, opting consciously not to pay fine.

11.9 However, what seems to compound the problem for fine defaulter, as is the case herein also, is the non-obstante clause of section 138 i.e. (cid:148)without prejudice to any other provisions of this Act”. This phrase acts as a legislative bridge, enabling enforcement of fines through existing procedures, including default imprisonment, without altering the punishment limit in Section 138. But the said phrase in Section 138 is not to be read as if it authorises additional sentence/punishment. It merely serves to preserve the applicability of other legal mechanisms i.e. procedural tools under the BNSS.

11.10 As noted, the legislative intent behind Section 138 is primarily remedial rather than penal. The provision aims to ensure trust in commercial transactions, and provide compensatory justice, not to impose punitive excesses. Purpose of coercive measures like default Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 22 of 36 imprisonment ought to be resorted proportionately. Excessive or automatic imprisonment is fraught with danger of leading to a debtors’ prison model, thus impinging the rights under Articles 14 and 21 of the Constitution. Default imprisonment hence remains a procedural enforcement tool rather than a disguised punitive measure.

11.11 This being the position in law, the use of default imprisonment does not violate legislative intent, as it is procedural, collateral, and most of it all, it is optional/conditional on non-payment, and not part of the substantive sentence for cheque dishonour. The argument of the learned counsel for the petitioner to the contrary, is thus rejected. The question of law framed above is also answered accordingly.

12. At this stage I may also hasten to add, that the Supreme Court in the Judgment titled Sharad Hiru Kolambe vs The State Of Maharashtra1 has held that there is no power with the court to order the default sentences to run concurrently. Argument to the contrary, as canvassed by the Ld. Counsel for Petitioner, is, therefore, being noted only to be rejected.

13. Adverting now to procedural tool in case of the default of payment of the fine i.e. section 395 BNSS [Order to pay compensation - 357 Cr.P.C.]. For ready reference, Section 395 is as under: "395. Order to pay compensation.—(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied— 12018(18) SCC 718. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 23 of 36 in defraying (a) prosecution; the expenses properly incurred (b) 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; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person 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. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.”

13.1 It thus provides that when a Court imposes a sentence of fine or a sentence (including sentence of death) of which fine forms a part, the Court may, when passing the judgment/order the whole or any part Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 24 of 36 of the fine be recovered, inter alia, for payment to any person as compensation for any loss or injury caused by the offence, when said compensation is, in the opinion of the court, recoverable by the sufferer in a civil court.

13.2 In light of above, section 143(A) of the Negotiable Instruments Act, 1881 be also seen before proceeding further, which is as under: (cid:148)143A. Power to direct interim compensation.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 may order interim compensation to the complainant— the drawer of the cheque to pay (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) shall not exceed twenty per cent. of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub- section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.”

13.3 It thus provides that the amount of fine imposed under section 138 or the amount of compensation awarded under section 395 of BNSS shall be reduced by the amount paid or recovered as interim compensation under this section. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 25 of 36

13.4 From a combined reading of the aforesaid provisions of the NIA and the BNSS, it seems that in cases under the Act, when a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, when passing the judgment, order the whole or any part of the fine recovered, inter alia, 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 civil court.

13.5 It is obvious that in the tables annexed with the petitioner’s nominal roll supra, the word ‘compensation’ under the column ‘fine’ against various entries actually denotes the fine and the same was/is to be paid as compensation to the complainants. There seems nothing wrong with the same.

13.6 I, therefore, also reject the contention of the learned counsel for the petitioner that the aggregate/combined period of the substantive imprisonment and default imprisonment cannot exceed the maximum prescribed maximum two years’ period of substantive sentence for the offence.

14. During arguments, learned counsel for the petitioner also contended that a sentence of imprisonment in default of payment of fine could not have been imposed in these cases since the conviction was under Section 138 of NIA since it does not provide for sentence of imprisonment in default of payment of fine. I am not inclined to entertain this contention, either. The reasons are:

14.1 Firstly; in this lis, the petition does not contain any challenge to the legality of order of sentence of imprisonment of default of Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 26 of 36 payment of fine or to the award of compensation to the complainants. The petitioner only seeks indulgence to set him free either by way of equalizing the sentences already undergone in default of payment of fine as ordered and/or otherwise pass appropriate orders to reduce the same. Entertaining this contention at this belated stage would mean springing a surprise for the opposite side, which would be unjust and unfair.

14.2 Secondly; for its determination, the relevant Court orders imposing the penalty of fine and in default of payment of fine, to undergo various terms of imprisonment, would have to be seen. Those relevant Court orders have not been brought on record. In their absence, it does not seem appropriate for this Court to examine and decide upon the challenge to their legality/validity, let alone accept such challenge. In the circumstances, this contention put forth by the learned counsel for the petitioner is not entertained at this stage.

15. Having said that, I must, however, also take note that, in support of his contention i.e. in default of payment of fine, additional sentence of imprisonment cannot be imposed under Section 138, learned counsel for the petitioner relied upon P.T. Ratnakaran vs. V.K. Prabhakara2. I find that this contention raised by the learned counsel for the petitioner otherwise of considerable interest warranting a debate. This contention, not outrightly without substance and is worthy of serious consideration, is, therefore, being examined 22006 (9) SCC 784. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 27 of 36 hereinafter, with a disclaimer that it purely in the abstract and for academic discussion.

15.1. Moving on, when we analyse the inter play of BNSS, NI Act and BNS, it is borne out that Section 8(2) of BNS [Amount of fine, liability in default of payment of fine, etc. - S. 64 of IPC] provides for the sentence in default of payment of the fine i.e. the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of (in addition to) any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence. Applying the same analogy, I would interpret section 138 to hold that for the offences under the Negotiable Instruments Act, the sentence of imprisonment in default of payment of fine shall be in excess of (in addition to) any other imprisonment to which he may have been sentenced. In other words, for the offence under section 138 of the Act, the imprisonment in default of payment of fine shall be in excess of (in addition to) any other imprisonment to which he may have been sentenced.

15.2. Before proceeding further, sections 4 and 5 of the BNSS may also be noted here, which read asunder:

4. Trial of offences under the Bharatiya Nyaya Sanhita, 2023 and other laws.- (1)All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 28 of 36

5.Saving.- Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction and power conferred, or any special form of procedure prescribed by any other law for the time being in force.”

15.3 From a combined reading of sections 4 and 5 ibid and the provisions of the Act and the BNSS, it seems that in cases under the Act, when a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may recover it from such person as per the procedure laid down in BNSS/Cr.P.C.

15.4 Let us now see Section 24 of the BNSS [Section 30 of Cr.P.C.], which has relevance here. It appears in Chapter III captioned - POWER OF COURTS and at the cost of repetition, it reads as under: “24. Sentence of imprisonment in default of fine.- (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term--- (a)is not in excess of the powers of the Magistrate under section 23; (b)shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 23.”

15.5 Under section ibid, a Magistrate is empowered to award a term of imprisonment in default of payment of a fine, as authorised by law. This means the sentence must be authorised by law. It’s important to note that the power to award a sentence is one thing, while authorising the punishment is different. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 29 of 36

15.6 Section 8 (2) of the BNS [Section 64 of IPC]states that in every case of an offence punishable with imprisonment as well as fine, or in every case of an offence punishable with imprisonment or fine or with fine only, in which the offender is sentenced to fine, the court which sentences such offender shall direct that in default of payment of the fine, the offender shall suffer imprisonment for a certain term. This imprisonment shall be in excess of (in addition to) any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence.

15.7 However, unlike the BNS, there is no such specific provision in the Negotiable Instruments Act authorising the court to direct that in default of payment of the fine, the offender shall suffer imprisonment for a certain term.

15.8 This specific provision in Section 8(2) of BNS [section 64 IPC] is a case of authorisation by the relevant applicable law i.e. IPC to award appropriate term of imprisonment in default of payment of fine. Evidently, on that analogy, for the award of sentence of imprisonment in default of payment of fine, in cases under other enactments/laws also, there should be the necessary authorisation in those other enactments/laws. 16 This brings us to the core question: can a court, upon conviction under Section 138, lawfully impose imprisonment in default of fine?

16.1 The Apex Court’s judgment in P.T. Ratnakaran vs. V.K. Prabhakaran (supra) relied upon by the learned counsel for the petitioner reads as under: (cid:148)1.Leave granted. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 30 of 36

2. We have heard counsel for the parties. 3. The appellant has since deposited the sum of Rs. 50,000 (Rupees fifty thousand only) which is payable to the respondent. It is submitted on behalf of the appellant that a sentence of imprisonment in default of payment of fine could not have been imposed in the instant case since the conviction is under Section 138 of the Negotiable Instruments Act which does not provide for sentence of imprisonment in default of payment of fine. Counsel for the respondents does not dispute the said legal proposition. 4. Accordingly, this appeal is allowed and the sentence in default imposed on the appellant is set aside. Since the amount of Rs 50,000 (Rupees fifty thousand only) has been deposited in the trial court, the respondents are at liberty to withdraw the said amount on a proper application being made before it. 5. This appeal is allowed to the extent indicated above.”

16.2 The judgment, supra, indicates two points: i.e. (i) the amount deposited was not a statutory fine but payable to the complainant; (ii) the appellant had been directed to undergo imprisonment in default of such payment, which was set aside. Notably, Hon’ble Supreme Court did not expressly declare the law but accepted the contention without dissent from the respondent. This, at least implicitly, thus suggests that a sentence of imprisonment in default of fine under Section 138 is impermissible.

16.3 It is significant to note that under Section 143A of the Negotiable Instruments Act, the Court may order the drawer of the cheque to pay interim compensation. However, the provision does not specifically contemplate a sentence of imprisonment in default of payment of fine under Section 138.

16.4 On an academic plane, my tentative view, therefore, is that such imprisonment cannot be imposed appears to be a persuasive argument. However, adopting this position wholesale would have significant Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 31 of 36 consequences. It would invite challenges to default sentences not only under the Negotiable Instruments Act but also under several statutes prescribing fines without expressly authorising imprisonment in default. Moreover, if such view is adopted, the cascading consequences would be to open the floodgates to challenges seeking to quash default sentences, not only under the Negotiable Instruments Act but also under other statutes which prescribe fines but do not explicitly authorize imprisonment in default of payment. However, applying this view would have.

17. Be that as it may, in the present case, the petitioner stands convicted and sentenced in multiple cases under the Negotiable Instruments Act to terms of substantive imprisonment, coupled with fines, and, in default of payment of such fines, to further terms of imprisonment. Under the relief of quashing, the default sentences cannot be considered or granted for multiple reasons i.e.;

17.1 Firstly, the petition does not assail the legality of the orders imposing default sentences or the award of compensation to the complainants. The limited relief sought is indulgence—to release the petitioner by equalizing the sentences already undergone in default of fine or by reducing the same through appropriate orders.

17.2 Secondly, the orders imposing fines and directing imprisonment in default have not been placed on record. In their absence, this Court cannot, and ought not, examine their legality or validity, much less strike them down. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 32 of 36

17.3 Thirdly, a substantial period has elapsed since those orders were passed. At this belated stage, it would neither be just nor appropriate to unsettle finality by quashing such long-standing orders.

17.4 Fourthly—and most significantly—to hold that a conviction under Section 138 of the Negotiable Instruments Act, which does not expressly provide for default imprisonment, cannot entail such a sentence would have far-reaching and disruptive consequences. If such a view were adopted and applied for granting relief to the petitioner, it would open flood gates and trigger cascading impact not only under the Negotiable Instruments Act but also under other statutes where fines are prescribed without explicit provision for default imprisonment, yet courts have imposed such sentences. The ramifications would not only be enormous, the ripple effect widespread but the consequences may lead to nothing short of change of entire judicial landscape.

18. In this backdrop, although this Court has engaged in academic discussion, ibid, but it would neither be proper nor otherwise within the scope of instant petition to render a conclusive finding on —either affirming or rejecting the contention raised by learned counsel for the petitioner. Particularly when there is no such prayer and such a contention was urged time during arguments. Accordingly, the question is left open for determination in an appropriate case in future. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 33 of 36 CONCLUSION

19. Turning to the relief sought by the petitioner, it is indeed correct, as urged by the learned APP, that despite succeeding in protracted litigation, none of the 82 complainants have received compensation awarded by the Courts, owing to the petitioner’s failure to deposit the fine amounts. However, I am firmly of the view that it would be unjust and disproportionate to keep the petitioner incarcerated any further on account of default in payment of fine.

20. If the petitioner truly possessed the means to pay the fine, it is inconceivable that he would choose to languish in jail for its non- payment, fully aware that the complainants could still approach the Courts for recovery proceedings under law. Prolonged incarceration in such circumstances serves no legitimate purpose; it brings no real benefit to the complainants—save for a perverse and punitive sense of satisfaction, which the law does not countenance. As already stated, the settled legal position is that default sentences cannot be directed to run concurrently.

21. Accordingly, the facts and circumstances in the present case particularly the sheer adversity and poverty which the petitioner is currently suffering, make out a case where this court, in exercise of its inherent jurisdiction under section 528 of the BNSS, can reduce the sentence of imprisonment awarded in default of payment of fine and direct that sentences already undergone by the petitioner in default of payment of fine, be treated as the total punishment in default of payment of fine in the aforesaid 82 cases. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 34 of 36

22. Consequently, the total of default sentence imprisonment in default of payment of fine in the 82 cases is reduced by proportionate staggering and equalised to the period of imprisonment already suffered by the Petitioner in default of payment of fine.

23. Before concluding, at the cost of repetition, I may observe that Section 461 BNSS [Warrant for levy of fine- Section 421 of Cr.P.C.] expressly empowers the Court, even after an offender has undergone imprisonment in default, to issue warrants for recovery of fine. This statutory mechanism ensures that liability for payment of fine survives the completion of the default sentence. Thus, the complainants are not remediless. I may hasten to add here, as a clarification, that the instant order passed by this Court is not to be construed in any manner to mean that the petitioner is absolved of his liability to pay the fine amount. For its recovery, the State/concerned complainants shall be at liberty to proceed against the petitioner in accordance with law, including taking steps underSection461 BNSS [Section 421 Cr.P.C.].

24. The default sentence imposed on the applicant has become excessively harsh, albeit unintentionally. Illustratively, if this case had involved only a single cheque of Rs. 1.3 crores, the petitioner’s position would have been far less onerous. Ignoring the period of imprisonment already undergone would effectively subject the applicant to what is virtually a life sentence—approximately 17 years [8 + 9 = 17]. He has already endured seven years and ten months in custody, and yet, under the default sentence, he is required to serve an additional nine years and several months. Such an outcome is manifestly disproportionate and cannot be justified. Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 35 of 36

25. The petition is thus allowed in the above terms. A copy of this order shall be forthwith transmitted by the registry Superintendent of Jail immediate compliance. The Jail Superintendent shall act upon the authenticated copy of this order without delay. Subject to verification by the competent authority of the completion of substantive sentences of imprisonment in the 82 cases as per the nominal roll. The Petitioner shall be released from custody and set at liberty forthwith, if no longer required in any other case. AUGUST 19, 2025/rs ARUN MONGA, J Signature Not Verified Signed By:RENUKA NEGI Signing Date:24.08.2025 07:44:16 Crl.M.C. 3340/2023 Page 36 of 36