TMI Blog2010 (5) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... t the accused in Criminal Appeal arising out of S.L.P. (Crl.) No. 334 of 2008 are confirmed with the modification. - CRIMINAL APPEAL NOS. 1052 AND 1053 OF 2010 - - - Dated:- 11-5-2010 - P. SATHASIVAM AND H.L. DATTU, JJ. A. Raghunath, P.V. Dinesh, P. Rajesh, H.B. Manav, Nishe Rajen Shonger and A.P. Jyothish for the Appearing Parties. JUDGMENT H.L. Dattu, J. - Leave granted in both the special leave petitions. 2. These two appeals are directed against the judgment and order of the High Court of Kerala in Crl. Rev. Petition No. 1387 of 2006, dated 3-10-2007. 3. Since parties are common and the legal issues are identical, they are heard together and disposed of by this common order. 4. The factual matrix in brief is as under :- The facts in criminal revision petition No. 1387 of 2006 may be noticed for the purpose of disposal of the appeals. The appellant (accused) and the respondent (complainant) are employed as High School assistants in SSHSS school in Moorkanand. The respondent has filed a complaint against the appellant before the learned Magistrate for an offence under section 138 of the Negotiable Instruments Act (the Act for short). The comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court after taking into consideration the peculiar facts and circumstances of the case has modified the sentence imposed on the accused to the extent, that, if the petitioner pays the compensation amount of Rs. 4 lakhs (keeping in mind that the petitioner had deposited an amount of Rs. 1 lakh before the trial court towards the compensation amount) within a period of five months, then he needs to undergo imprisonment only till the rising of the court and if the petitioner commits default in making the payment aforesaid, he shall undergo simple imprisonment for three months by way of default sentence. 9. Being aggrieved, the accused is before this court by way of Criminal Appeal arising out of SLP (Crl.) No. 334 of 2008. The main contention of the accused is that this court in Criminal Appeal No. 1013 of 2007 has held, that, while exercising jurisdiction under section 357(3) of the Cr. PC, no direction can be issued that in default of payment of compensation, the accused shall suffer simple imprisonment. In effect the Supreme Court has confirmed the judgment passed in the case of Radhakrishna Nair v. Padmanabhan [2000] 2 KLT 349, wherein the Kerala High Court had given a si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all offence, in paying in, 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 his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of death and it has also been provided that the persons who are entitled under the Fatal Accidents Act, 1855, to recover damages from the person sentenced may be compensated out of the fine imposed. It also expressed its full agreement with the suggestion that at the time of awarding judgment in a case where death has resulted from homicide, the court should award compensation to the heirs of the deceased. The Committee felt that this will result in settling the claim once for all by doing away with the need for a further claim to a civil Court, and avoid needless worry and expense to both sides. The Committee further agreed that in cases where the death is the result of negligence of the offender, appropriate compensation should be awarded to the heirs. By the introduction of clause ( bb ) to section 545(1), the intention of the Legislature was made clear that, in suitable cases, the heirs and dependents should be compensated for the loss that resulted to them from the death, from a person who was responsible for it. The view was also expressed that the court should award compensation to the heir of the deceased so that their claims would be settled finally. This object is sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 20. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order by imposing sentence in default." 22. This position also finds support in the case of R. v. Oliver John Huish [1985] 7 Cr. App. R. (S.) 272. The Lord Justice Croom-Johnson speaking for the Bench has observed : "When compensation orders may possibly be made the most careful examination is required. Documents should be obtained and evidence either on affidavit or orally should be given. The proceedings should, if necessary, be adjourned, in order to arrive at the true state of the defendant s affairs. Very often a compensation order is made and a very light sentence of imprisonment is imposed, because the court recognizes that if the defendant is to have an opportunity of paying the compensation he must be enabled to earn the money with which to do so. The result is therefore an extremely light sentence of imprisonment. If the compensation order turns out to be virtually worthless, the defendant has got off with a very light sentence of imprisonment as well as no order of compensation. In other words, generally speaking, he has got off with everything." 23. The law laid down in Hari Kishan s case ( supra ) was reiterated by this court in the case of Sugan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appadan Ahammed Kutty s case ( supra ) this Court in the case of Vijayan v. Sadanandan K. [2009] 6 SCC 652, after noticing the provision of sections 421 and 431 of Cr. PC, which dealt with mode of recovery of fine and section 64 of IPC, which empowered the courts to provide for a sentence of imprisonment on default of payment of fine, the Court stated : "17. We have carefully considered the submissions made on behalf of the respective parties. Since a decision on the question raised in this petition is still in a nebulous state, there appear to be two views as to whether a default sentence on imprisonment can be imposed in cases where compensation is awarded to the complainant under section 357(3), Cr. P.C. As pointed out by Mr. Basant in Dilip S. Dahanukar s case, the distinction between a fine and compensation as understood under section 357(1)( b ) and section 357(3) Cr. P.C. had been explained, but the question as to whether a default sentence clause could be made in respect of compensation payable under section 357(3), Cr. P.C. which is central to the decision in this case, had not been considered." The court further held : "22. The provisions of sections 357(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance without sufficient cause to comply with the order. It would indeed be strange to hold that a person who without reasonable cause refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears." 27. From the above line of cases, it becomes very clear, that, a sentence of imprisonment can be granted for default in payment of compensation awarded under section 357(3) of Cr. PC. The whole purpose of the provision is to accommodate the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (3) Where the court issues a warrant to the Collector under clause ( b ) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law : Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." Section 431 of Cr. PC reads : "431. Money ordered to be paid recoverable as a fine. Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if 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." 29. Section 431 clearly provides that an order of compensation under section 357(3) will be recoverable in the same way as if it were a fine. Section 421 further provides the mode of recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f S.L.P. (Crl.) No. 4099 of 2008 has contended that the sentence imposed for default in payment of the compensation amount is very minimal and, therefore, the sentence imposed by the High Court requires to be enhanced. In our considered view, looking into the facts and circumstances of the case and the nature of the offence, we find no good reason to interfere with the quantum of sentence imposed. 34. The contention of the accused as regards a factual error made by the High Court, wherein the High Court stated that the accused had deposited Rs. 1 lakh towards the compensation amount requires to be accepted. It is to be noted that the accused has already deposited Rs. 2 lakhs towards the compensation amount of Rs. 5 lakhs, before the Judicial Magistrate in pursuance of orders passed by the Sessions Court and the High Court. Therefore, the appeal of the accused, i.e., Criminal Appeal arising out of Special Leave Petition (Crl.) No. 334 of 2008 is allowed to the extent that he needs to pay a further amount of Rs. 3 lakhs towards the compensation amount of Rs. 5 lakhs. The remaining part of the sentence passed by the High Court requires to be confirmed. 35. In the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
