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2008 DIGILAW 2359 (MAD)

A. Chandrasekara Naidu v. Jai Bagawan Enterprises

2008-07-10

T.SUDANTHIRAM

body2008
Judgment The revision petitioner was convicted by the learned Judicial Magistrate No.II, Vellore in C.C.No.21 of 2003 for the alleged offence under Section 138 of N.I. Act and he was sentenced to imprisonment till rising the Court and to pay a compensation of Rs.2,00,000/- to the complainant under Section 357 (3) of the Code of Criminal Procedure within four weeks from the date of conviction. On appeal in C.A.No.192 of 2003 before the Additional Sessions Judge, Fast Track Court, Vellore, the learned appellate Judge converted the compensation ordered by the trial Court to that of fine but however, reduced from Rs.2,00,000/- to Rs.1,00,000/-and in addition directed that in default of fine, the revision petitioner is to suffer simple imprisonment for six months. Aggrieved by the conviction and the order effected by the appellate Court in modification of the order of the trial Court, the present revision is preferred by the convict. 2. Mr. V. Perarasu, learned counsel appearing for the revision petitioner would submit that the trial court had although shown leniency in awarding the sentence of imprisonment to the accused, ordered compensation of Rs.2,00,000/- payable to the complainant and the appellate Court while reducing the compensation from Rs.2,00,000/- to Rs.1,00,000/- held the same as that of fine and ordered to be paid the same to the complainant as compensation. 3. The learned counsel appearing for the revision petitioner would further submit that the ultimate aim of the appellate Court was only to direct the revision petitioner to pay compensation of Rs.1,00,000/- to the complainant. 4. This court also heard Mr. A.V. Arun, learned counsel appearing for the respondent. 5. This Court considered the submissions made on either side, perused the judgments of both the Courts below and the relevant records. On considering the evidence, this court is of the view, that based on the available evidence, the revision petitioner had been convicted and sentenced accordingly and on appeal the conviction was confirmed but however, the appellate Court effected certain modifications as stated supra. This is being criminal revision, no question of legality has been raised. 6. With regard to sentence, considering the age of the accused, the trial Court itself imposed sentence leniently directing the revision petitioner to suffer imprisonment till rising the Court. This is being criminal revision, no question of legality has been raised. 6. With regard to sentence, considering the age of the accused, the trial Court itself imposed sentence leniently directing the revision petitioner to suffer imprisonment till rising the Court. Though the trial Court directed the revision petitioner to pay a sum of Rs.2,00,000/- as compensation under Section 357(3) of the Code of Criminal Procedure, 1973, it had not imposed any default sentence on the revision petitioner. But, however, the appellate Court on its own converted the order passed by the trial Court under Section 357 (3) of the Code of Criminal Procedure to one under Section 357(1) of the Code of Criminal Procedure. The Appellate Court imposed a fine of Rs.1,00,000/- and also imposed a default sentence for six months and ordered to pay the entire fine amount of Rs.1,00,000/- as compensation to the complainant as per Section 357(1) (b) of the Code of Criminal Procedure. The approach of the learned Additional Sessions Judge, Fast Track Court, Vellore, seems to be erroneous. Though the intention of the appellate Court was only to reduce the compensation amount, which was ordered by the trial Court, the appellate Court imposed a fine of Rs.1,00,000/-additionally in the place of compensation of Rs.2,00,000/- while confirming the sentence of imprisonment, which had already been imposed and suffered by the revision petitioner. It amounts to enhancement of sentence. Further, the sentence has been enhanced inflicting default sentence in the event, the revision petitioner failed to pay the fine. 7. Section 386 of the Code of Criminal Procedure, 1973 deals with the powers of the Appellate. The relevant section and sub clause are extracted below:- 386. Powers of the Appellate Court. It amounts to enhancement of sentence. Further, the sentence has been enhanced inflicting default sentence in the event, the revision petitioner failed to pay the fine. 7. Section 386 of the Code of Criminal Procedure, 1973 deals with the powers of the Appellate. The relevant section and sub clause are extracted below:- 386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may – .(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; .(b) in an appeal from a conviction - .(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or .(ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) .................. 8. In the above circumstances, the imposition of fine of Rs.1,00,000/- by the appellate Court in modification of compensation of Rs.2,00,000/- awarded by the trial Court and default sentence thereof cannot be sustained and the same is liable to be set aside. Further, considering the circumstances in this case, the order of compensation imposed by the trial court is liable to be modified. 9. Accordingly, the order of the appellate Court to the extent indicated above is set aside and instead this Court direct that the compensation ordered by the trial Court under Section 357 (3) of Code of Criminal Procedure, is reduced to Rs.1,00,000/- from Rs.2,00,000/- payable to the respondent/complainant. As no default sentence was imposed by the trial Court, this court has also not chosen to inflict default sentence of imprisonment in the event of non payment of compensation as ordered under Section 357(4) of the Code of Criminal Procedure. As no default sentence was imposed by the trial Court, this court has also not chosen to inflict default sentence of imprisonment in the event of non payment of compensation as ordered under Section 357(4) of the Code of Criminal Procedure. It is for the respondent/complainant to recover the amount of compensation directed above invoking the provisions under Section 431 of the Code of Criminal Procedure, 1973. With these modifications, the criminal revision petition is partly allowed setting aside the sentence of fine imposed by the appellate Court and modifying the order of the trial court with regard to the compensation amount to the extent indicated above.