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2011 DIGILAW 1059 (MAD)

C. Murugesan v. Prabakaran

2011-02-28

T.SUDANTHIRAM

body2011
JUDGMENT (1) THE Revision petitioner herein was convicted for an offence under Section 138 of the Negotiable Instruments Act, by the learned Judicial Magistrate No.1, Nagercoil, and was sentenced to undergo six months simple imprisonment and also was directed to pay a compensation for a sum of Rs. 1,50,000/- (cheque amount), within a period of four months from the date of judgment. (2) CHALLENGING the said conviction and sentence, the revision petitioner preferred an appeal before the learned Sessions Judge, Kanyakumari in C.A.No.76 of 2010 and also preferred a Sub-Application in Crl. M. P. No. 3561 of 2010 seeking to suspend the sentence till the disposal of the appeal. The learned Sessions Judge, while ordering the said application suspending the sentence of imprisonment on the petitioner imposed a condition that the petitioner should deposit half of the compensation amount of Rs.75,000/- before the trial Court. CHALLENGING the condition imposed on the petitioner that he should deposit the compensation amount of Rs.75,000/-, the petitioner has preferred this Criminal Revision. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.side) appearing for the State. The learned counsel for the first respondent is called absent. (3) THE learned counsel for the petitioner submitted that the petitioner has got a fair chance in succeeding the appeal and the condition imposed on him is onerous and though the petitioner was directed to pay the compensation amount, no sentence of imprison- mentin default of payment has been imposed by the trial Court and as such, the learned Sessions Judge ought not to have imposed a condition to deposit the compensation amount and the petitioner instead of being givenan opportunity to contest the appeal is directed to pay the amount, which would cause prejudice to him. (4) THIS Court considered the submissions of the learned counsel for the petitioner as well as the learned Government Advocate (Crl.side) and perused the records including the memorandum of grounds of criminal appeal filed before the Sessions Court. Of course, at this stage this Court does not want to go into the merits of the case, but at the same time feels that the Sessions Court having suspended the sentence of imprisonment imposed on the petitioner need not impose a condition on the petitioner to deposit 50% of the compensation amount of Rs.75,000/-. A perusal of Section 357 of Cr. P. C, reads as follows:- "357. A perusal of Section 357 of Cr. P. C, reads as follows:- "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 mis- appropriation, 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 has 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 has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (4) An order under this section may also be made by an 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 any sum paid or recovered as compensation under this Section." (5) ON perusal of the above Section 357(2) indicates that even if the compensation amount is deposited, the payment cannot be made to the victim before the decision of the appeal. In such a case, this Court is of the view that it is not always necessary to insist for the payment of compensation amount as condition precedent for passing an order of suspension of sentence. The order of directing payment of compensation amount by the Trial Court is also a subject-matter of appeal being right of the accused. The position may be different, it is a case of remission. (6) FOR the above said reasons, the condition imposed by the learned Sessions Judge, Kanyakumari District, Nagercoil in Crl.M.P. No.3561 of 2010 directing the petitioner to deposit half of the compensation amount of Rs.75,000/- before the trial Court is deleted. The Criminal Revision Petition is allowed accordingly. Consequently, connected miscellaneous petition is closed. Petition allowed.