Criminal Appeal No. 1052 of 2010 (Arising out of SLP (Crl.) No. 334 of 2008) and Criminal Appeal No. 1053 of 2010 (Arising out of SLP (Crl) No. 4099 of 2008). Case: 1. K.A. Abbas H.S.A., 2. Sabu Joseph Vs 1. Sabu Joseph and Anr., 2. K.A. Abbas and Anr.. Supreme Court
|Case Number:||Criminal Appeal No. 1052 of 2010 (Arising out of SLP (Crl.) No. 334 of 2008) and Criminal Appeal No. 1053 of 2010 (Arising out of SLP (Crl) No. 4099 of 2008)|
|Party Name:||1. K.A. Abbas H.S.A., 2. Sabu Joseph Vs 1. Sabu Joseph and Anr., 2. K.A. Abbas and Anr.|
|Counsel:||For Appellant: A. Raghunath, T.T.K. Deepak and Co., P.V. Dinesh, P. Rajesh, H.B. Manav, Nishe Rajen Shonger and A.P. Jyothish, Advs.|
|Judges:||P. Sathasivam and H.L. Dattu, JJ.|
|Issue:||Negotiable Instruments Act - Section 138; Fatal Accidents Act, 1855; Criminal Procedure Code (CrPC), 1973 - Sections 125, 357, 357(1), 357(3), 359, 421, 421(1) and 431; Criminal Procedure Code (CrPC), 1898 - Section 545 and 545(1); Magistrates' Courts Act, 1980 - Sections 77(2) and 82(3); Criminal Justice Act, 1982 - Section 9; Sentencing Act, ...|
|Citation:||II (2010) BC 675, 2010 (2) KLT 943 (SC), 2010 (5) SCALE 754, (2010) 6 SCC 23, 2010 (6) UJ 2759 (SC)|
|Judgement Date:||May 11, 2010|
H.L. Dattu, J.
1. 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 03.10.2007.
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 complainant's case is that the appellant, who was due in a sum of Rs. 5,00,000/-, issued a cheque dated 16.06.2003 in respect of that liability, and when the cheque was presented for encashment, the same was returned with an endorsement of "insufficiency of funds."
5. The complainant, through his Advocate, had issued notice to the appellant demanding the payment and that in spite of the service of notice, the appellant failed to pay the amount covered by the cheque and thus has committed an offence under Section 138 of the Act and, accordingly, has approached the learned Magistrate for appropriate reliefs.
6. The learned Magistrate after taking cognizance of the offence and after recording the evidence of the parties and after analyzing the same, has found the accused guilty of the offence punishable under Section 138 of the Act and sentenced to simple imprisonment for one year. In addition to that he had directed to pay a compensation of Rs. 5 lakhs to the complainant under Section 357(3) of the Cr.PC, and in default, to undergo simple imprisonment for a further period of two months.
7. The accused filed appeal before the Sessions Court, Manjeri being Criminal Appeal No. 59 of 2004. The Sessions Court while entertaining the appeal had directed the petitioner to deposit Rs. one lakh within one month being a part of the compensation amount. The appellant has complied with that order by depositing the amount as directed before the Judicial 1st Class Magistrate, Manjeri. Eventually, the Sessions Judge by his order dated 21.03.2006 confirmed the judgment of conviction and sentence passed by learned Magistrate.
8. The accused preferred revision petition being Criminal Revision Petition No. 1387 of 2006 before the High Court of Kerala at Ernakulam. The High Court passed an interim order directing the petitioner to deposit an amount of Rs. 1 lakh before the Judicial Magistrate and, accordingly, the said amount was also deposited. The High Court while disposing of the Revision Petition has observed that the courts below had appreciated the facts correctly and there is no error, illegality or impropriety in the finding recorded by the courts below to set aside the conviction and sentence. The High court has further stated that the only question which requires to be answered is, whether a proper sentence has been imposed on the accused by the courts below. The 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 similar finding. The accused also contends, that, there is a factual error in the judgment of the High court to the effect that the accused had already deposited Rs. 2 lakhs towards paying the compensation amount pursuant to interim orders of the Sessions Court and the High Court respectively, instead the High Court has observed that only Rs. 1 lakh has been deposited.
10. The complainant being aggrieved by the sentence imposed on the accused has filed SLP (Crl) No. 4099 of 2008. The contention of the complainant is that, the sentence imposed is very minimal and will defeat the very purpose of Section 138 of N.I Act and if for any reason the default sentence is deleted then there is no chance of the accused paying the compensation. In this regard, the complainant relies on the observation of this Court in the case of Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420.
11. Heard learned Counsel for both sides. The learned Counsel for the accused submits, that, the default sentence imposed by the learned Judge of the High Court is against the dicta of this Court in the case of Ettappadan Ahammed Kutty @ Kunhappu v. E.P. Abdullakeya @ Kunhi Bappu and Anr. (Criminal Appeal No. 1031 of 2007). Per contra, the learned Counsel for the respondent ably justifies the impugned judgment. The learned Counsel also relies on the observations made by this Court in the case of Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420.
12. The main question that requires to be considered and decided is, whether in default of payment of compensation ordered under Section 357(3) of the Cr.P.C., a default sentence can be imposed?
13. Let us now look at the relevant provisions and the decision of this Court on which reliance is placed by learned Counsel.
14. Section 357 of Cr.PC reads:
(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 shelf 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 for which the accused person his been so sentenced.
(4) An order under this section may also be made by all 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.
15. Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced.
16. The above view we have taken is supported by the decisions of this Court, to which we presently refer.
17. In the case of Sarwan Singh and Ors. v. State of Punjab AIR 1978 SC 1525, this Court has noticed the object and genesis of the section.
10. The law which enables the Court to direct compensation to be paid to the dependants is found in Section 357 of the CrPC (Act 2 of 1974). The corresponding provision in the 1898 Code was Section 545. Section 545 of the CrPC (Act 5 of 1898) was amended by Act 18 of 1923 and by Act 26 of 1955. The amendment which is relevant for the purpose of our discussion is 545(1)(bb) which, for the first time was inserted by Act 26 of 1955. By this amendment the court is enabled to direct the accused, who caused the death of another person, to pay compensation to the persons who are, under the Fatal Accidents Act, entitled to recover damages from the persons sentenced, for the loss resulting to them from such death. In introducing the amendment, the Joint Select Committee stated "when death has been caused to a person, it is but proper that his heirs and dependants should be compensated, in suitable cases, for the loss resulting to them from such death, by the person who was...
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