TMI Blog2012 (7) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above, we find no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding sentence in default of payment of compensation. The High Court was in error in setting aside the sentence imposed in default of payment of compensation. - Criminal Appeal No. 883 of 2012 [Arising out of Special Leave Petition (Crl.) No. 2299 of 2012], And Criminal Appeal No. 884 of 2012 [Arising out of Special Leave Petition (Crl.) No. 3327 of 2012] - - - Dated:- 3-7-2012 - Aftab Alam And Ranjana Prakash Desai, JJ. JUDGMENT Ranjana Prakash Desai, J. 1. Leave granted. 2. These two appeals can be disposed of by a common judgment as they arise out of the same facts and challenge the same judgment and order dated 15/12/2011 of the Madras High Court. Special Leave Petition (Crl.) No.2299 of 2012 is filed by accused - R. Mohan ( the accused for convenience) and Special Leave Petition (Crl.) No.3327 of 2012 is filed by complainant - A.K. Vijaya Kumar ( the complainant for convenience). 3. The accused was tried by the Vth Metropolitan Magistrate Court, Egmore, Chennai for an offence under Section 138 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused was sent up for trial before the Vth Metropolitan Magistrate, Egmore, Chennai, who convicted him as aforesaid. We have already noted how the matter travelled upto this Court. 6. We have heard Mr. R. Nedumaran, learned counsel appearing for the accused. He submitted that the courts below have fallen into a serious error in convicting the accused. He submitted that the importance of the diary entry (Ex.D1) showing that as of April 2002 only a sum of ₹ 90,101/- was due and payable by the accused to the complainant was completely overlooked by all the Courts including the High Court. He pointed out that the complainant has accepted that in the said diary entry, he had, in his own handwriting, acknowledged that only ₹ 90,101/- was payable by the accused to him. Counsel submitted that the accused had borrowed only ₹ 3,00,000/- and had issued a blank cheque as security. He had repaid that amount. But the complainant misused the cheque. Counsel submitted that the promissory note was not executed by the accused. Counsel submitted that the order directing payment of ₹ 5,00,000/- as compensation to the complainant is also illegal and unjust. 7. Mr. Jayant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex-D1 appear to be entries in connection with the said chit fund scheme. The transaction reflected in Ex-D1 cannot be confused with the loan of ₹ 5 lakhs given by the complainant to the accused evidenced by promissory note (Ex-P1) and cheque (Ex-P2). The complainant s evidence is wholly satisfactory. By admitting that entry in Ex-D1 is in his handwriting, he comes out as a truthful witness. If he had dishonest motive he would have never admitted that the said entry was in his handwriting. 9. Moreover, if the case of the accused is that as of April, 2002, only an amount of ₹ 90,101/- was due from him to the complainant, in his reply dated 24/5/2002, he should have said so. This statement is conspicuously absent in the said reply. It is pertinent to note that in order to satisfy itself, the High Court, while hearing the revision, directed the complainant to produce his Income-tax Returns of the relevant period. The High Court wanted to see whether the instant loan transaction is reflected in the complainant s Income-tax Returns. The complainant produced the Income-tax Returns. The High Court found that in the Assessment Year 2002- 2003 and also for the subsequent asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther observed that it is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. Describing it as a constructive approach to crime, this court recommended to all courts to exercise this power liberally so as to meet the ends of justice in a better way. It was clarified that the order to pay compensation may be enforced by awarding sentence in default. The relevant observations of this court may be advantageously quoted. 11. The payment by way of compensation must, however, be reasonable. What is reasonable may 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money (other than a fine) payable by virtue of any order made under the Code and the recovery of which is not otherwise expressly provided for. Compensation awarded by a court can fall in this category. Section 431 says that such money shall be recoverable as if it were a fine. Section 431 of the Code reads thus: 431. Money ordered to be paid recoverable as 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. 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 IPC also needs to be quoted because it provides f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take 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 IPC. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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