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2006 (6) TMI 528

..... Agarwal i/b i/w Law Global, Mr J.S. Padam for the petitioner. Mrs Revati Mohite-Dere, for respondent no.1., Mr A.S. Shitole, APP, for the respondent-State. ORAL JUDGMENT: 1. Rule. Returnable forthwith. The respondents waive service. By consent, rule is heard forthwith. 2. These three petitions have given rise to a short yet important question that whether the appeal court on presentation of an appeal against the order of conviction under section 138 of the Negotiable Instruments Act (for short, "the Act") has power to direct payment of compensation, awarded by the learned Magistrate, in whole or any part thereof, as a condition for suspending substantive sentence. 3. In all the three petitions, the orders impugned are similar. In the first two writ petitions, the learned Addl. Sessions Judge has directed the petitioner-accused to pay five lacs rupees within four weeks as a condition precedent for suspending the substantive sentence of SI for one month and compensation quantified as Rs. fifteen lacs under section 357(3) of the Criminal procedure Code (for short, "the Code"). In the third petition an amount of Rs.three lacs has been directed to be paid for suspend .....

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..... inal disposal at the stage of admission. 5. Mr. Jha, learned counsel for the petitioner in the first two writ petitions, submitted that the learned Addl. Sessions Judge ought to have appreciated the scope, ambit and purport of the provisions contained under section 357 of the Code inasmuch as if the fine is imposed then the compensation has to come out of the fine amount itself and there cannot be a separate order for payment of compensation. He further submitted that section 357(1) and (3) has to be read in conjunction and not in isolation. Harmonious construction of sub-section (1) and (3) of section 357, according to Mr Jha, would mean that filing of the appeal and its admission, operates as stay to the order of compensation as contemplated under sub-section (2) of section 357. In other words, the object of granting compensation is one and the same under these provisions. When the order of compensation granted under sub-section (1) gets automatically stayed in the event of filing of an appeal there is no reason as to why the stay shall not operate in respect of the compensation granted under sub-section (3) of section 357 of the Code. In other words, he submitted that merely bec .....

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..... ce the relevant provisions contained in Section 357 to address the question that falls for my consideration. "357. 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 - (a) in defraying the expenses properly incurred in the prosecution; (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 di .....

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..... the "fine" directed to be paid in the proceedings under section 138 of the Act and the "fine" under section 357(1) have different complexion. Under section 138 the "fine" amount may extend to twice the amount of the cheque. Whereas the "fine" under subsection (1) of Section 357 cannot exceed five thousand rupees as provided under section 29 of the Code. The automatic stay under subsection (2) of Section 357 on "payment of compensation" out of the sentence of fine imposed on accused under sub-section (1) in the event of presentation of appeal would, therefore, not operate insofar as the amount of compensation awarded under sub-section (3) of Section 357 of the Code. In other words, in the proceedings under section 138 of the Act, the appeal Court will have power to direct payment of compensation, in whole or any part thereof, as a condition for suspending the substantive sentence of S.I. and compensation. While so directing, the Court will have to bear in mind that the amount of compensation directed to be paid pending appeal is reasonable and ability of the accused to pay. The proposition of law laid down in the judgment of the A.P. .....

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..... in the instant petition to pay compensation as a condition precedent for suspending the sentence. 11. A reference can also be made to the judgment of Supreme Court in Stanny Felix Pinto Vs. Jangid Builders Pvt Ltd and Anr (2001) 2 Supreme Court Cases 416 wherein while dealing with almost similar question the following observations are made: "2. When a person was convicted under section 138 of the Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior court for suspension of the sentence. The High Court while entertaining his revision granted suspension of the sentence by imposing a condition that part of the fine shall be remitted in court within a specified time. It is against the said direction that this petition has been filed. In our view the High Court has done it correctly and in the interest of justice. We feel that while suspending the sentence for the offence under section 138 of the Negotiable Instruments Act it is advisable that the court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the court can direct atleast a portion thereof to be remitted as the convicted person wants .....

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