TMI Blog2022 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the case of NAGARAJA RAO VERSUS CENTRAL BUREAU OF INVESTIGATION [ 2015 (1) TMI 1480 - SUPREME COURT] the Hon ble Supreme Court stated that it is legally obligatory upon the Court of first instance while awarding multiple punishments to specify as to whether the sentences are to run concurrently or consecutively. Concurrent sentence - dishonor of multiple check - multiple offences and thereafter seek concurrent running of the sentences - HELD THAT:- A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sides and just as it may incite an accused to swell his liability and to not pay the same despite issuance of multiple cheques, at the same time, there is immense possibility that the creditor secures multiple cheques for each installment and lodges different complaints against default of each cheque and claim consecutive running of sentences in each of the said cases to seek confinement of a defaulter in custody for an indefinite period. The crucial test thus is the similarity of the transaction and not the quantum of the money involved. A Court is thus required to maintain a fine b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory principles laid down by the Hon ble Supreme Court, and the statutory objective, it is opined that the complaints in question can be safely construed as a part of one single transaction. Sentencing of the petitioner - HELD THAT:- The Hon ble Supreme Court has held in the matter of State of Punjab versus Madan Lal that the benefit of concurrent running of the sentence should be extended to the petitioner. It is, however, held by the Hon ble Supreme Court that the single transaction has to be carefully construed - The Hon ble Supreme Court has also held in the matter of SHYAM PAL VERSUS DAYAWATI BESOYA ANR. [ 2017 (4) TMI 955 - SUPREME COURT ] while dealing with the scope of Section 427 Cr.P.C., in a matter relating to proceedings under Section 138 of the Negotiable Instruments Act, 1881 that the power to direct concurrent running of sentence is discretionary. The accused in the said case was convicted in respect of two cases arising out of successive transactions in a series between the same parties and tried together. A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed for the substantive offence. Petition allowed in part. - CRR No. 3415 OF 2019 (O&M), CRR No. 3411 OF 2019 (O&M), CRR No. 3406 OF 2019 (O&M), CRR No. 3403 OF 2019 (O&M) - - - Dated:- 1-6-2022 - HON'BLE MR. JUSTICE VINOD S. BHARDWAJ Argued by: Mr. Raj Kumar Gupta, Advocate and Mr. Rajiv Rathor, Advocate for the petitioner (s) in all the petitions. Ms. Amarjit Kaur Khurana, DAG, Punjab. Mr. Chanakya Batta, Advocate and Mr. Parshotam Lal Singla, Advocate for respondent No.2. VINOD S. BHARDWAJ. J. 1. The point for consideration in the instant petition is as to whether the sentences should be ordered to be run concurrently under Section 427 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C. ) where the petitioner-accused is being prosecuted for having issued four different cheques in discharge of his liability and four independent complaints have been filed relating to dishonour of each cheque. 2. Before proceeding further into the matter, a brief reference to the facts arising in each revision petition is being referred to as under: CRR No. Complaint No. / Title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear and 07 months FACTS OF THE CASES CRR-3403-2019 (O M) 3. The case of the respondent-complainant is to the effect that the petitioner-accused being proprietor of M/s Sukhdev Money Changer, Anarkali Bazar, Ishar Chowk, Near Gurudwara Atma Singh, Jagraon, Tehsil Jagraon, District Ludhiana had borrowed a sum of Rs. 9,00,000/- in cash and that towards discharge of his liability/debt, the cheque No. 000310 dated 01.02.2014 drawn on HDFC Bank, Jagraon had been issued which was presented and dishonoured vide memo dated 03.02.2014 with the remarks Stop Payment . The petitioner-accused was convicted by the Judicial Magistrate First Class, Jagraon vide judgment dated 12.06.2017. The appeal preferred by the petitioner before the Court of Additional Sessions Judge, Ludhiana was dismissed vide judgment dated 01.11.2019. CRR-3406-2019 (O M) 4. The case of the respondent-complainant is to the effect that the petitioner-accused being proprietor of M/s Sukhdev Money Changer, Anarkali Bazar, Ishar Chowk, Near Gurudwara Atma Singh, Jagraon, Tehsil Jagraon, District Ludhiana had borrowed a sum of Rs. 7,00,000/- in cash and that towards discharge of his liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence awarded in each case should be ordered to run concurrently. 8. Learned counsel for the petitioner made a statement at the bar that he does not wish to contest the judgments and gives up his challenge to the judgments on merits of the case and that instead the Court considers the issue regarding the concurrent running of the sentences in all the cases. Reference is also made to the custody certificate to argue that the petitioner has already undergone his entire sentence in one of the case i.e. Criminal Appeal No. 47 dated 12.07.2017 and is concurrently undergoing sentence in Criminal Appeal No.48 dated 12.07.2017. He has undergone an actual sentence of 01 month and 07 days as on 23.02.2022. 9. In view thereof, the case was heard only with respect to the sentence and the entitlement of the petitioner to pray for concurrent running of the same. Learned counsel appearing on behalf of the petitioner has submitted that all the 04 cheques of a total amount of Rs.34 lakhs had been issued in discharge of a single consolidated liability and as such, irrespective of the different dates mentioned in the cheque, they must be read as a part of one single transaction. He further sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent fairly conceded that ratio of the above judgment would not be applicable to the facts of the instant case. 11. I have considered the rival submissions advanced on behalf of the respective parties and have gone through the case law cited by them. 12. In order to appreciate the submissions made by the respective counsels, it is essential to make a reference to Section 427 Cr.P.C. which is reproduced as under: 427. Sentence on offender already sentenced for another offence. (1). When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprison- ment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty principle has been accepted as correct principle for guidance. In R. v. Edward Charles French, [1982] Cr. App. R. (S) p. 1 (at 6), Lord Lane, C.J., observed : We would emphasize that in the end, whether the sentences are made consecutive or concurrent the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case. 15. Furthermore, in the matter of V.K. Bansal versus State of Haryana and another reported as (2013) 7 Supreme Court Cases 211 held as under: 13. There are also cases where the High Courts have depending upon whether facts forming the basis of prosecution arise out of a single transaction or transactions that are akin to each other directed that the sentences awarded should run concurrently. As for instance the High Court of Allahabad has in Mulaim Singh v. State directed the sentence to run concurrently since the nature of the offence and the transactions thereto were akin to each other. Suffice it to say that the discretion vested in the Court for a direction in terms of Section 427 can and ought to be exercised having regard to the nature of the offence committed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to adopt another line of argument that concurrent or consecutive running of sentences is also to be governed by single transaction principle, as discernible from a combined reading of Sections 31(1) and 220(1) CrPC. In this regard, apart from the aforesaid decisions in Nagaraja Rao and Gagan Kumar, the learned counsel has also relied upon the decisions in Mohan Baitha Ors. v. State of Bihar Anr.: (2001) 4 SCC 350; Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad Anr.: (1988) 4 SCC 183; and Manoj alias Panju v. State of Haryana: (2014) 2 SCC 153 and has submitted that looking to the nature of accusation, there was no reason for the Courts to direct consecutive running of sentences in the present case. Xx xx xx xx xx Xx xx xx xx xx 8.2. The learned AAG has also submitted that the principles related with commission of offences in a single transaction do not lead to the proposition that different sentences in relation to multiple offences shall invariably be running concurrently; and has referred to the enunciations in O.M. Cherian (supra). The learned AAG has further referred to the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain and Section 31 CrPC. 10.1. In Muthuramalingam (supra), the basic question before the Constitution Bench was as to whether consecutive life sentences could be awarded to a convict on being found guilty of a series of murders, for which, he had been tried in a single trial. In the course of determination of this question, the Constitution Bench dealt with several dimensions of sentencing, particularly those relating to multiple sentences and observed, inter alia, that,- 23 So interpreted Section 31(1) CrPC must mean that sentences awarded by the court for several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently . 10.2. Thus, it is beyond a shadow of doubt that Section 31(1) CrPC vests complete discretion wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter herein is that not only the Trial Court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court. 13. Even when we find the aforementioned shortcomings in the orders passed by the Trial Court as also by the High Court, the question is as to whether the sentences awarded to the appellants could be considered as running concurrently? As noticed, the omission to state whether the sentences awarded to the accused would run concurrently or would run consecutively essentially operates against the accused because, unless stated so by the Court, multiple sentences run consecutively, as per the plain language of Section 31(1) CrPC read with the expositions in Muthuramalingam and O.M. Cherian (supra). The other omission to state the order of consecutive running cannot ipso facto lead to concurrent running of sentences. 14. Faced with the position that the stated omissions will not, by themselves, provide a room for concurrent running of sentences, learned counsel for the appellants has endeavoured to invoke the single transaction principle. In our view, the said principle is essentially referable to Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 307 IPC as also under Sections 25 and 27 of the Arms Act. In the case of Nagaraja Rao (supra), the trial and conviction had been of offences under Section 381 IPC and Section 52 of the Post Office Act, 1898. In the case of Gagan Kumar (supra), offences were under Sections 279 and 304-A IPC. These decisions, essentially proceeding on their own facts, do not make out a case for interference in favour of the appellants. Xx xx xx xx xx xx Xx xx xx xx xx xx 21. While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao (supra), that it is legally obligatory upon the Court of first instance, while awarding multiple punishments of imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes unnecessary and avoidable prejudice to the parties, be it the accused or be it the prosecution. 17. While reiterating the principles expounded in the case of Nagaraja Rao versus CBI reported as (2015) 4 SCC 302, the Hon ble Supreme Court stated that it is legally ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent two cases was Rs. 4,50,000. There is no case for the Respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case. The above observations are clearly attracted to this Case. It is not the case of the Respondent that he has paid any amount to the complainant-firm during the pendency of these cases. He has shown s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a fixed term, expires on a definite date which is known when the subsequent conviction is made. In this background, it is further observed that ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence. Here again the Supreme Court would not provide any guidelines or directions governing the mode, method or principle where direction for consecutive or concurrent execution of sentences are to be made. In fact, in K. Prabhakaran v. P. Jayarajan, 2005(1) RCR (Civil) 667 : (2005)1 SCC 754 , the Hon'ble Supreme Court has clearly observed that there are no guidelines or specific provision to suggest under what circumstances various sentences of imprisonment shall be directed to run concurrently or consecutively the Code of Criminal Procedure and further that there are no judicial decisions laying down guidelines as to what should be the criteria in this regard. These observations, however, were made in a slightly different context as the Hon'ble Supreme Court in this case was mainly concerned to see the aspect of dis-qualification of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prior criminal record of the offender, character his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Criminal Procedure Code as observed by Hon'ble Supreme Court is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion. 21. A perusal of the same shows that the sentencing Court had a discretion to direct concurrence. The investiture of such discretion, presupposes that it should be exercised on sound principles and not on impulses, whims or fancies. Unprincipled exercise for unregulated benevolence ill behaves judicial functions. A casual direction made regarding concurrent running of sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence. Section 220. Trial for more than one offence. (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub- section (2) of section 212 or in sub- section (1) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. 23. A perusal of the aforesaid provisions read with Section 427 Cr.P.C. shows that the use of phrase Offence forming a single transaction has been incorporated in Section 220 Cr.P.C. Section 31 of the Cr.P.C. contemplates a situation where sentences are being imposed on account of conviction under several offences at one single trial and that such sentences can be directed by the Court to run concurrently. Section 219 of the Cr.P.C. whereafter incorporates a situation that where a person is being tried of 03 offences of the same kind within one year, the said cases may be charged together and the person may be tried at one trial for any number of cases not exceeding 03 cases. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme sought to be proposed in the of the Code of Criminal Procedure, 1973 which aims to empower the Court to extend such benefit at different stages, different trials as well as after different convictions. 24. A reference to the aforesaid judgments shows that the principle of single transaction has been extended and brought into action by the Hon ble Supreme Court while considering the application moved under Section 427 Cr.P.C. While dealing with the issue of single transaction and as to what would constitute formation of single transaction, the said fact discussed in the judgment of Kamal Kant Ray Chaudhary versus Emperor reported as 1937 ILR 98. 25. While dealing with the scope of Sections 233, 234, 235, 236 and 239 of the Code of Criminal Procedure then wherein such provisions are akin to Sections 218 to 233 of the Code of Criminal Procedure, 1973, it was observed by the Division Bench of the Calcutta High Court in the matter of Kamala Kanta Ray Chaudhuri Vs. Emperor reported as ILR (1938) 1 Cal 98 as under : Section 235(1) requires that in order that several offences may be joined in one indictment, the offences must be committed by the same person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words so connected together as to form in Clause (a), (c) (sic) and (d) of Section 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. Xx xx xx xx xx xx 27. Furthermore, the said principles of single transaction has been relied upon in the judgment of Mohd. Akhtar Hussani (Supra); V.K. Bansal (Supra) and as reasoned in the judgment of Sunil Kumar @ Sudhir Kumar. Hence, even though only Section 220 of the Cr.P.C. contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion which thus arises for further consideration is as to whether sufficient grounds exist for exercising the discretion in the case in hand and as to whether the cases of the petitioner can be categorized as falling within single/same transaction:- i) That for ascertaining the said aspect, it is essential to advert to the pleading of the respondent-complainant in the present cases. A perusal of the submissions made and evidence led in all cases shows that the offence is stated to have been committed in a similar manner and at the same time. It is not the pleaded case or the case supported by any evidence that the transactions for which the complaints in question were instituted were separate, distinct and independent transactions. As a matter of fact, the complaints as well as evidence led by the respondent-complainant is silent on the said aspect. It cannot thus be assumed that separate cheques in question were issued in discharge of separate liability arising on account of distinct, independent transactions that were not inter-linked. ii) It would also be essential to refer to the evidence as noticed by the trial Court in each of the cases which shows that the relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To discharge onus, complainant Parveen Kumar himself stepped into the witness box as CW1 and in his examination in chief by way of affidavit Ex.CA, has deposed on the lines of version of the complaint and further he proved on record various documents i.e. Original cheque bearing No. 000314 Ex.C1, bank memo as Ex.C2, original envelope Ex.P3, copy of legal notice as Ex.C4, postal receipt as Ex.C5, certified copy of the day book for the year 2013-14 Ex.C6 Ex.C9, and copy of appeal Ex.C10. Thereafter the complainant closed the after notice evidence. iii) It is thus evident that even though the evidence may have been separately submitted in the form of a separate affidavit in each complaint, however, it is in substance the same evidence that is being relied upon by the respondent-complainant for establishing a pre-existing liability and legally enforceable debt. Furthermore, the cheques in question have been issued in a close proximity to each other. It is evident that the first cheque was issued on 18.01.2014 followed by the second cheque on 01.02.2014, the third cheque on 11.02.2014 and the last cheque on 26.02.2014. There is nothing on record to sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracted to the facts of the instant case in as much as the said judgment restricts the benefit against habitual offenders who are involved in successive criminal acts. The present case would not apparently label the petitioner as a habitual offender. In a matter of dishonor of cheque, such a presumption may be drawn where an accused has defaulted in repayment of various persons in a similar manner over a period of time in distinct, independent and unrelated events. But in a case of mere institution of separate complaints upon dishonour of multiple cheques issued in discharge of one single liability, the accused should not be categorized as a habitual offender. Hence, taking into consideration the nature of transaction and the precedent judgments as well as the statutory principles laid down by the Hon ble Supreme Court, and the statutory objective, I am of the opinion that the complaints in question can be safely construed as a part of one single transaction. 33. Having held so, the issue which thus arises next relates to the sentencing of the petitioner. 34. The Hon ble Supreme Court has held in the matter of State of Punjab versus Madan Lal (supra) that the benefit of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve sentence alone. 15. In a more recent decision of this Court in Benson vs. State of Kerala Criminal Appeal No.958 of 2016 (since disposed of on 03.10.2016) and the accompanying appeals, arising from the conviction of the appellant from his prosecution on the offences proved, this Court in the singular facts as involved and having regard to the duration of his incarceration and the remission earned by him, extended the benefit of such discretion and directed that the sentences awarded to him in those cases would run concurrently. It was noticeably recorded that the offences in the cases under scrutiny had been committed on the same day. The benefit of the discretion was accorded to the appellant therein referring as well to the observation in V.K. Bansal (supra) that it is difficult to lay down any straight jacket approach in the matter and that a direction that the subsequent sentence would run concurrently or not, would essentially depend on the nature of the offence or offences and the overall fact situation. Understandably, the appellant was required to serve the default sentence as awarded with the direction that if the fine imposed had not been deposited, the defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction and not the quantum of the money involved. A Court is thus required to maintain a fine balance by imposing a sentence so that the reformatory, retributive and deterrent effects are balanced well. 36. Having held so, it is noticed that while sentencing the petitioner-accused, the Court below has although imposed a sentence of one year, however, no sentence of fine has been imposed. The said sentence imposed by the trial Court was modified by the lower Appellate Court while dealing with the revision petition filed by the respondent-complainant. A compensation in terms of Section 357(3) of the Cr.P.C., to pay the amount of cheque was imposed and the said compensation was awarded to the respondent-complainant. The trial Court has not imposed any sentence of fine or default sentence on account of failure of the accused to deposit the same. 37. As the question of sentence has been kept open by the petitioner and the High Court is seized of the said matter regarding sentence in exercise of the powers under Section 401 Cr.P.C., it is thus necessary to examine the issue of sufficiency of the punishment so imposed and as to whether, the High Court can, in exercise of the power co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on directed compensation for the value of the cheque to be paid to the respondent-complainant. There was no sentence imposed in the event of default on the part of the petitioner-accused for non-payment of compensation as directed to be paid under Section 357 Cr.P.C. The Hon ble Supreme Court has held in the matter of R.Mohan versus A.K. Vijay Kumar passed in Criminal Appeal No. 883 of 2012 decided on 03.07.2012 that the idea behind directing the accused to pay compensation to the complainant is to grant immediate relief to the complainant who is a victim and is aimed to alleviate his grievance. It is held that as per the provisions of Section 357 (3) Cr.P.C., if a convict does not pay the compensation so awarded, the Court may impose a default punishment and sentence and that imposition of such a default sentence would not be illegal. In this regard, it is also necessary to make a reference that Section 357 (4) Cr.P.C. specifically empowers a High Court to pass appropriate orders while exercising the power of revision. The relevant extract of the said judgment is reproduced herein below: 10. That takes us to the legal question whether the court can award a sentence in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default. 12. While dealing with a case under Section 138 of the said Act in Suganthi Suresh Kumar , relying on Hari Singh , this court reiterated the same view and held that the court can impose a sentence of imprisonment on the accused in default of payment of compensation ordered under Section 357(3) of the Code. 13. Undoubtedly, there is no specific provision in the Code which enables the court to sentence a person who commits breach of the order of payment of compensation. Section 421 of the Code provides for the action which the court can take for the recovery of the fine where the accused has been sentenced to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it were a fine : Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures 'under Section 357', the words and figures 'or an order for payment of costs under Section 359' had been inserted. Thus, one has to again fall back on section 421 of the Code for recovery of compensation directed to be paid by the court. For the purpose of mode of recovery, compensation is put on par with fine (See K.A. Abbas HSA.) 15. Section 64 of the Indian Penal Code also needs to be quoted because it provides for sentence of imprisonment for non-payment of fine. It reads thus : 64. Sentence of imprisonment for non-payment of fine. In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke recourse to Section 421 of the Code. Order under Section 357(3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the Indian Penal Code. It is obvious that in view of this, in Vijayan, this court stated that the above mentioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default. 41. Furthermore, in the matter of Kumaran versus State of Kerala and another passed in Criminal A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall suffer imprisonment for a certain term, 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. 31. The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 I.P.C., empower the court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same. 26. This statement of the law was reiterated in R. Mohan v. A.K. Vijaya Kumar, 2012(3) RCR (Civil) 744 : 2012(3) RCR (Criminal) 648 : 2012(4) Recent Apex Judgments (R.A.J.) 437 : (2012) 8 SCC 721 (see paras 26 to 29). 27. These two judgments make it clear that the deeming fiction of Section 431 Cr.P.C. extends not only to Section 421, but also to Section 64 of the Indian Penal Code. This being the case, Section 70 I.P.C., which is the last in the group of Sections dealing with sentence of imprisonment for nonpayment of fine must also be included as applying directly to compensation under Section 357(3) as well. The position in law now becomes clear. The deeming provision in Section 431 will apply to Section 421(1) as well, despite t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal fiction enacted under Section 431 is not limited to the purpose of this Act unlike Section 6A of the Central Sales Tax Act, as was the case in Ashok Leyland Limited v. State of Tamil Nadu , (2004) 3 SCC 1 at para 32,76. Thus it is clear that the object of the legal fiction created by Section 431 is to extend for the purpose of recovery of compensation until such recovery is completed and this would necessarily take us not only to Section 421 of the Cr.P.C. but also to Section 70 of the Penal Code, a companion criminal statute, as has been held above. 42. The lower Appellate Court having directed compensation to be paid to the respondent-complainant, a default punishment can be so imposed by the High Court in exercise of the powers vested in it under Section 357 (4) read with Section 401(2) Cr.P.C. and the order awarding sentence can be suitably modified. It is accordingly ordered as under :- i) That the Criminal Revision bearing No. 3403-2019 arising out of Criminal Appeal No. 47 dated 12.07.2017 in case titled Yogesh Kumar versus Parveen Kumar under Section 138 of the Negotiable Instruments Act, 1881 decided vide judgment dated 01.11.2018 passed by the Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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