Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 663 (HP)

Tek Ram v. Kaka & Associates.

2013-07-15

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT Dharam Chand Chaudhary, Judge (Oral) Challenge herein is to the order dated 9th January, 2012, passed by learned Sessions judge, Kullu in criminal appeal No. 06/12, whereby the sentence imposed upon the petitioner by the learned trial Court under Section 138 of the Negotiable Instruments Act has been suspended, subject to his furnishing personal bond in the sum of Rs. 20,000/- and also on depositing 50% of the amount of compensation in the trial Court. 2.It is canvassed that in an order of suspension of sentence under Section 389 Cr.P.C, no such condition can be imposed. Further ground that complainant is a firm indulged illegally in advancing loan contrary to the H.P. Debt Reduction Act, is not legally entitled to recover the amount under the disputed cheque. 3. The point that the complainant-Company is carrying on business of lending money contrary to the Act ibid and as such not entitled to recover the amount under Section 138 of the Negotiable Instruments Act, is a matter to be decided on merits by learned Lower Appellate Court seized of the appeal. 4. It is the legality and validity of the impugned order to the extent of suspension of sentence, subject to deposit of 50% of the amount of compensation imposed upon the petitioner-accused under challenge, in this petition. 5. Learned trial Court has sentenced the petitioner-accused for the commission of an offence punishable under Section 138 of the Act to undergo simple imprisonment for a period of six months and while resorting to the provisions contained under Section 357 of the Code of Criminal Procedure, awarded compensation to the tune of Rs. 33 lacs for making good the monetary loss suffered by the complainant and towards the inconvenience caused to him. 6. Sub-section (3) of Section 357 of the Code of Criminal Procedure reads as follows: “(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.” 7.The imposition of fine, as a matter of fact, is sentence like the imposition of sentence of fine. The default in payment of fine imposed as one of the sentences is followed by the imprisonment in jail of the nature, as ordered by the Court concerned. In K.A. Abbas H.S.A versus Sabu Joseph and another, (2010) 6 Supreme Court Cases 230, involving similar issue, the Apex Court has held that like default in deposit of amount of fine results in imprisonment of the nature, as ordered by the Court, the default in deposit of the compensation awarded under Sub-section (3) of Section 357 of the Code to the victim, a sentence of imprisonment can be imposed upon the accused. The relevant portion of this judgment reads as follows: “26. From the above line of cases, it becomes very clear, that, a sentence of imprisonment can be granted (sic imposed) for default in payment of compensation awarded under Section 357(3) 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 ensure 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.” 8. As a matter of fact, under sub-section (3) of Section 357 Cr.P.C., in a judgment of conviction and sentence when the Court does not impose the sentence of fine upon the accused, may order him to pay compensation to the victim in such an amount as may be specified in the order. As a matter of fact, under sub-section (3) of Section 357 Cr.P.C., in a judgment of conviction and sentence when the Court does not impose the sentence of fine upon the accused, may order him to pay compensation to the victim in such an amount as may be specified in the order. Therefore, the sentence of compensation imposed upon the convict is also a sentence imposed upon him in the form of fine and in an application if Appellate Court passes an order qua suspension of the sentence, subject to the deposit of compensation so imposed or a part thereof, such order cannot be said to be illegal by any stretch of imagination. 9.The law on the subject is no more res-integra, as the Karnataka High Court in M.R. Patel versus R.K. Synthetics and Fibres Pvt. Ltd. 2003STPL (LE-Crim) 24346 KAR having identical issue involved has held as under: “7. On carefully going through the submissions made at the Bar and the relevant citation cited, I am of the view that powers of the Appellate Court under sub-section(1) of Section 389 have to be interpreted and understood in a broader sense. There may not be an express provision for empowering the Appellate Court to pass any conditional order regarding depositing of fine amount. Nonetheless, the power of suspension under Section 389 is a discretionary power and has to be exercised judiciously. The provision of Section 389 and the powers of the Appellate Court under Section 386(3) have to be read conjointly and the residuary powers under sub­section (3) of Section 386 makes it amply clear that the Appellate Court can make any amendment or consequential or incidental order that may be just and proper and the said order need not be a final order. Even an interim order in an appeal is also within the purview of sub-section (3) of Section 386 and I am in respectful agreement with the view of the Patna High Court in this regard. There is no statutory right conferred on a convicted accused to have the sentence imposed suspended pending hearing of the appeal. It is only a matter of discretion on the part of the appellate Court and while exercising the discretion, it is permissible for the appellate Court to impose any equitable conditions as it thinks just and proper. There is no statutory right conferred on a convicted accused to have the sentence imposed suspended pending hearing of the appeal. It is only a matter of discretion on the part of the appellate Court and while exercising the discretion, it is permissible for the appellate Court to impose any equitable conditions as it thinks just and proper. Therefore, the condition to insist deposit of payment of fine amount or part thereof cannot be assailed as illegal.” 10.Similar is the view of the matter taken by the Delhi High Court in Om Prakash Bajaj versus Som Dutt Bajaj and another 2010 STPL (DC) 558 DEL., where the sentence was ordered to be suspended, subject to deposit of the amount of compensation imposed upon the accused partly. The relevant portion of the judgment reads as follows: “15. Based on the said conclusions the Apex Court found it reasonable to give directions to the appellant in the said case to deposit a sum of Rs. 1,00,000 in place of Rs. 15,00,000 directed by the trial Court and Rs. 5,00,000 directed by the appellate Court. It would be thus manifest that the appellate Court although cannot impose ‘any term as a condition precedent for pertaining an appeal against the order of conviction, the same being a constitutional and statutory right, but at the time of passing an order for suspension of sentence under Section 389 Cr.P.C the appellant approaching the Court seeking suspension of his sentence can be put to complaint based on a dishonoured cheque for a sum of Rs. 4 lakh and, therefore, to secure the rights of the complainant, the Trial Court had imposed a compensation/fine of Rs. 7,00,000 upon the appellant, which was reduced to Rs. 4,00,000 by the Appellate Court. The Appellate Court was fully conscious of the amount of the cheque involved in the case as would be evident from the order of the Appellate Court which is reiterated as under: (i)Deposit of sum of Rs. 4,00,000 (original cheque amount) before the learned MM within 30 days. (ii) The amount so deposited before the learned MM shall not be released without the order of this Court. (iii) Furnishing of fresh personal bond in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of the learned MM by 10.7.2008.” 16. 4,00,000 (original cheque amount) before the learned MM within 30 days. (ii) The amount so deposited before the learned MM shall not be released without the order of this Court. (iii) Furnishing of fresh personal bond in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of the learned MM by 10.7.2008.” 16. In the light of the above discussion, I do not find any infirmity in the impugned order passed by the Appellate Court giving direction to the appellant to deposit a sum of Rs. 4,00,000 before the learned MM within a period of 30 days and other directions given by the appellate Court for the suspension of sentence of the appellant, which are well within his powers under Section 389, Cr.P.C.” 11.The lower Appellate Court has, therefore, not committed any illegality or irregularity by suspending the sentence imposed upon the petitioner subject to deposit of 50% of the amount of compensation, in the trial Court. In case he fails to obey the said direction, the law will take its own course and so far as the appeal is concerned, the same of course shall be disposed of, on its own merits. 12.In view of the aforesaid discussion, the petition fails and the same is accordingly dismissed, so also the pending application(s), if any.