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2012 DIGILAW 224 (CHH)

TIJAURAM v. SATISH CHANDRAKAR

2012-08-31

T.P.SHARMA

body2012
ORDER 1. Criminal Revision Nos.365/2012 and 503/2012 filed against the judgment dated 21.5.2012 passed by the Additional Sessions Judge, Dhamtari, in Criminal Appeal No.21/2011, are disposed of by this common order. 2. By filing Criminal Revision No.365/2012 the applicants- Tijauram, Anjor Singh and Rampreet (hereinafter referred to as 'accused') have challenged legality and propriety of the judgment dated 21.5.2012 passed by the Additional Sessions Judge, Dhamtari, in Criminal Appeal No.21/2011, modifying the judgment of conviction and order of sentence dated 11.2.2011 passed by the Judicial Magistrate First Class, Dhamtari, in Criminal Case No.225/2009, whereby & whereunder the learned Judicial Magistrate First Class after holding the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') sentenced them undergo S.I. for three months and fine of Rs. 5000/-, in default of payment of fine to further undergo S.I. for thirty days. It has also been objected by non-applicant Satish Chandrakar (hereinafter referred to as 'complainant'). In appeal the Additional Sessions Judge has modified the sentence of S.I. for three months to sentence of till rising of the Court, but fine part of sentence has been maintained. The appellate Court has also awarded compensation of Rs. 5 lacs i.e. amount of cheque and also directed to undergo S.I. for six months if amount of compensation is not paid within two months from the order. The accused have challenged the conviction and payment of compensation on the ground that cheque issued was not for debt or dues legally recoverable, but was security of amount and on the ground that the Court below was not competent to award compensation beyond the extent of sentence of fine independently under Section 357(3) of the Code of Criminal Procedure (for short 'Code'). 3. By filing Criminal Revision No.503/2012 the complainant-Satish Chandrakar has challenged the sentence and has claimed compensation twice to the amount of cheque i.e.Rs.10 lacs. 4. As per case of the complainant, accused have taken loan of Rs.5 lacs from the complainant showing themselves as a office bearer of Adiwasi Machua Samiti, Sirsida and issued joint cheque of Rs.5 lacs on 15.7.2006, cheque was presented for incashment, same was dishonored. Then notice under Section 138 of the Act was served upon accused, but they have failed to pay the amount of cheque, thereafter complaint was filed. Then notice under Section 138 of the Act was served upon accused, but they have failed to pay the amount of cheque, thereafter complaint was filed. Accused have taken the specific defence that alleged cheque was not for payment of loan or dues legally recoverable but it was for security of loan. After providing opportunity of hearing to the parties, the Judicial Magistrate First Class, Dhamtari has convicted and sentenced accused as aforementioned. Conviction and sentence have been modified by the appellate Court. 5. Mr. D.N. Prajapati, learned counsel for accused vehemently argued that the aforesaid cheque in question was not issued for loan or debt legally recoverable, but was for security of loan, that too at the instance of the complainant. Suggestion has been given to the complainant witness Noyal Bage and complainant, which they have specifically denied. Defence has examined applicant Anjor Singh Nishad as a defence witness under Section 315 of the Cr.P.C., they have also examined defence witnesses Madhavsingh Dhruv and Surendra Kumar Nishad. Anjor Singh Nishad has deposed that Satish Chandrakar has impressed them that Rs.35 lacs has been sanctioned and they are required to open the accounts, accounts were also opened, thereafter he succeeded in taking cheque signed by the applicants by creating impression that Minister has directed. Learned counsel further argued that the trial Court has sentenced the applicants S.I. for three months and fine of Rs.5000/-, in default of payment of fine to further undergo S.I. for thirty days. The appellate Court has reduced the sentence of imprisonment to till rising of the Court but has maintained "the sentence of fine, which the accused have paid. While awarding compensation to the extent of fine imposed upon the accused in accordance with sub-section (1) of Section 357 of the Code, but when fine does not form a part of sentence imposed, then the Court may award compensation in accordance with sub-section (3) of Section 357 of the Code. In the present case both the Courts below have imposed fine of Rs.5000/- which the accused have already paid, therefore, compensation under Section 357(1) of the Code cannot be awarded to the complainant, but only to the extent of fine i.e. Rs.5000/-may be awarded in accordance with Section 357(1) of the Code, therefore, while awarding independent compensation under Section 357(3) of the Code, the appellate Court has committed illegality, which is required to be quashed. Learned counsel also argued that in accordance with the provisions of Section 357(3) or 357 of the Code, the Court is not competent to direct the sentence for default of payment of compensation in absence of such provision, but the appellate Court has also awarded sentence in default of payment of compensation and thereby committed illegality. 6. Learned counsel for the applicants placed reliance in the matter of Shri Taher N. Khambati Vs. M/s. Vinayak Enterprises, Secunderabad and others, 1995 Cri.L.J. 560 in which the High Court of Andhra Pradesh has held that signed black cheque obtained as a threat for realization of amount, it cannot be said to be issued voluntarily for discharge of debt. 7. On the other hand, learned counsel for the complainant argued that accused have taken Rs.5 lacs and have executed the cheque in question, which has been dishonour, even after service of notice in terms of Section 138 of the Act they have failed to pay the amount. Learned counsel further argued that while modifying the judgment the appellate Court ought to have imposed the compensation double of the amount of cheque in terms of Section 138 of the Act, but by awarding such compensation the appellate Court has committed illegality. Learned counsel further argued that while awarding compensation and sentencing in default of payment of compensation the appellate court has not committed illegality. 8. Learned counsel for complainant placed reliance in the matter of K.A. Abbas H.S.A. Vs. Sabu Joseph & another and connected matter, 2010(3) CGLJ 191 (SC) in which the Supreme Court has held that sentence of imprisonment can be awarded for default in payment of compensation under Section 357(3) of the Code. 9. It appears from the defence taken by the accused that the complainant has committed cheating and forgery, but reason best known to them they have neither ledged any complaint nor has lodged F.1.R. against the complainant, even after receiving the notice and filing of the complaint, even till today they have not taken any action against alleged serious act of the complainant, inter alia, evidence of the complainant is well corroborated by the evidence of other witnesses. 10. 10. Evidence adduced on behalf of the complainant and alleged defence taken by the accused without any material by itself are sufficient to prove the fact that the accused have taken loan and have issued cheque in question, cheque was for payment of debt and dues legally recoverable. 11. As held by the Andhra Pradesh High Court in the matter of Shri Taher N. Khambati, 1995 Cri.L.J. 560 (supra), such cheque was blank cheque as a threat for realization of amount, but in the present case, cheque was not as a threat for realization of amount. The facts of the case of Shri Taher N.Khambati, 1995 Cri.L.J. 560 are distinguishable on the grounds of facts. 12. By convicting the accused under Section 138 of the Act and affirming such conviction both the Courts below have not committed illegality. I do not find any illegality in reducing the sentence of imprisonment by the appellate Court while exercising the appellate jurisdiction. 13. As regards the question of imposing sentence and award of compensation, the Courts are empowered to impose the sentence of fine and if sentence of fine is imposed, then part of whole amount of fine may be awarded as compensation to the complainant in accordance with Section 357(1) of the Code. 14. As regards the question of imposing sentence of imprisonment for default in payment of compensation under Section 357(3) of the Code, although the Court does not specifically provide such provisions, but while dealing with the same question the Supreme Court in the matter of Hari Kishan and State of Haryana Vs. Sukhbir Singh and others, AIR 1988 SC 2127 has held that reasonable amount of compensation by way of the compensation to victims of offence, may be awarded and the Courts are required to exercise his power liberally, so as to meet the ends of justice in a better way. The Supreme Court has further held that the Court may interfere the order by imposing sentence in default. The Supreme Court has observed in paras 10 and 11 thus:- "10. Sub-section (1) of section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Sub-section (1) of section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that his power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Court to exercise this power liberally so as to meet the ends of justice in a better way. 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 installments, may also be given. The Court may enforce the order by imposing sentence in default." 15. While dealing with the same question the Supreme Court in the matter of Balraj Vs. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default." 15. While dealing with the same question the Supreme Court in the matter of Balraj Vs. State of U.P., AIR 1995 SC 1935 has held that payment of compensation in appropriate cases under Section 357(3) of the Code is necessary and has also held that award of compensation is not ancillary to other sentences but it is addition thereto i.e. the Supreme Court has held that award of compensation is a sentence in addition to other sentence. The Supreme Court has observed in paras 11 and 12 thus: "11. Under these circumstances, we think it may not be safe to award death sentence. Learned counsel for the State, however, invited cur attention that P. W.2 is left without any support with a family to be maintained. Therefore it is a fit case where this Court should award compensation to her. We are also of the view that this is very much necessary. Section 357(3), Cr.P.C., provides for ordering of payment by way of compensation to the victim by the accused. It is an important provisions and it must also be noted that power to award compensation is not ancillary to other sentences but it is in addition thereto........ 12. For the reasons stated above, we confirm the conviction of the appellant under Section 302, I.P.C., but reduced the sentence of death to imprisonment for life. We further direct that the appellant Balraj shall. pay Rs. 10,000/- by way of compensation to P.W.2 Smt. Laxmi Devi and if the appellant fails to pay this amount within three months from today, the same may be collected as provided under Section 431, Cr.P.C., and be paid to PW2. The conviction and sentence of seven years R.I. under Section 307, I.P.C., are, however, confirmed. The sentence shall run concurrently. The order of the High Court is modified to the extent indicated above and the appeal is partly allowed." 16. While dealing with the same question the Supreme Court in the matter of Vijayan Vs. The conviction and sentence of seven years R.I. under Section 307, I.P.C., are, however, confirmed. The sentence shall run concurrently. The order of the High Court is modified to the extent indicated above and the appeal is partly allowed." 16. While dealing with the same question the Supreme Court in the matter of Vijayan Vs. Sadanandan K. & Anr., 2009 AIR SCW 3469 has held that Sections 357(3) and 431 of the Code read with Section 64 of the IPC empowered the Court while making the order for payment of compensation, but also included the default sentence in case of non-payment of the cheque. The Supreme Court has held in paras 21 and 22 thus: "21. Section 64 IPC makes it clear that while imposing a sentence of fine, the Court would be competent to include a default sentence to ensure payment of the same. For the sake of reference, Section 64 IPC is set out herein-below:- "64. Sentence of imprisonment for non-payment of fine.-In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence." 22. The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same. The observations made by this Court in Hari Singh’s case (supra) as are important today as they were when they were made and if, as submitted by Dr. Pillay, recourse can only be had to Section 421 Cr.P.C., for enforcing the same, the very object of Sub-Section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory." 17. Pillay, recourse can only be had to Section 421 Cr.P.C., for enforcing the same, the very object of Sub-Section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory." 17. As held by the Supreme Court in the matter of K. A. Abbas H.S.A., 2010(3) CGLJ 191 (SC) (supra), the Courts are empowered to award compensation under Section 357(3) of the Code. The whole purpose of the provision is to accommodate the interests of the victims in criminal justice system and it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated. The Supreme Court has observed in para 27 thus:- "27. From the above line of cases, it becomes very clear, that a sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357(3) of Cr.P.C. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can unsure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under Section 357(3), it is imperative for the Courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated." 18. While passing an order under Section 357(3), it is imperative for the Courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated." 18. Section 357(3) of the Code does not provide the default clause i.e. sentence of imprisonment for default of payment of compensation awarded under Section 357(3) of the Code, but issue has been set at rest and has been settled by the Supreme Court in catena of aforesaid decisions. 19. In the present case, the appellate Court has rightly awarded compensation to the extent of amount of cheque of Rs.5 lacs and has also directed for imprisonment in default of payment of compensation, but while affirming the sentence affine and awarding compensation under Section 357(3) of the Code the appellate Court has committed illegality. Award of compensation and fine in the present case are contrary to the provisions of Section 357(1) and (3) of the Code. 20. For the foregoing discussions the following legal points are emerges:- (i) The Courts are competent to impose fine and also empowered to award compensation as a part or whole of the amount of fine under Section 357(1) of the Code to the victim or the person who has suffered any loss or injury by reason of the act for which the accused persons have been sentenced. (ii) If fine of sentence does not form a part of sentence, then the Courts are also empowered to award compensation under Section 357(3) of the Code. (iii) The Courts cannot award compensation beyond the amount of fine imposed in accordance with Section 357(1) of the Code. The Courts are also empowered to impose fine as well as compensation independently under Section 357(3) of the Code. (iv) The Courts are also empowered to impose sentence in default of payment of compensation awarded under Section 357(3) of the Code. (v) Power to award compensation is not ancillary to other sentences but it is in addition thereto. 21. I do not find any ground for award of compensation twice to the amount of cheque as prayed by the complainant. 22. For the foregoing reasons, Criminal Revision No.365/2012 filed on behalf of the accused- Tijauram, Anjor Singh and Rampreet is partly allowed. 21. I do not find any ground for award of compensation twice to the amount of cheque as prayed by the complainant. 22. For the foregoing reasons, Criminal Revision No.365/2012 filed on behalf of the accused- Tijauram, Anjor Singh and Rampreet is partly allowed. Conviction of the accused under Section 138 of the Act and sentence of imprisonment i.e. till rising of the Court is hereby maintained, however, fine of Rs.5000/- and in default of payment of fine to further undergo S.I. for thirty days is hereby quashed. Compensation of Rs.5 lacs awarded to the complainant jointly from the accused under Section 357(3) of the Code, in default of payment of compensation to undergo S.I. for six months is also affirmed. Considering the peculiar circumstances of the case, three months time for payment of compensation to the complainant is granted to the accused from today. Criminal Revision No.503/2012 filed on behalf of the complainant-Satish Cihandrakar is hereby dismissed. Revision Partly Allowed.