Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 493 (BOM)

T. Veeruswami v. Ramsons Casting Pvt. Ltd.

2014-02-24

M.L.TAHALIYANI

body2014
Oral Judgment: 1) Learned counsel Mr.Ghanwat is heard on behalf of the applicant. Learned counsel Mr.Joshi is heard on behalf of the respondent. 2) Admit. Heard finally by consent. 3) The applicant is aggrieved by the order passed by the learned Additional Sessions Judge–7, Nagpur. The applicant was accused in Criminal Case No.16057 of 2009 for the offence punishable under Section 138 of Negotiable Instruments Act. He has been convicted for the said offence and has been sentenced to suffer simple imprisonment for one month and to pay Rs.15,00,000/- by way of compensation to the non-applicant-original complainant. 4) The appeal has been admitted. However, while suspending the sentence imposed by the trial Court, the appellate Court directed that the applicant should deposit Rs.5,00,000/- in the appellate Court. This amount of Rs.5,00,000/- is directed to be deposited keeping in view the amount of compensation ordered to be paid by the applicant to the non-applicant. 5) The learned counsel for the applicant has submitted that provisions of Section 357 (3) are related by provisions of sub-section (2) of Section 357 of Criminal Procedure Code. It is submitted that if the fine imposed in a case cannot be paid to the victim till the appeal period is over or till the appeal is decided in case appeal is filed, the amount of compensation also cannot be paid to the victim/complainant unless the appeal filed by the accused is decided. 6) In this regard distinction in the fine amount and compensation amount may be made to the extent that the amount of compensation to be paid out of fine could not be paid till the appeal period is over or till the appeal is concluded if the appeal is filed. Wherein in the case of compensation, the compensation is not a punishment, the compensation is apart from or in addition to the imposition of punishment. Only condition put on the exercise of powers under Subsection (3) of Section 357 is that compensation can be awarded only when fine does not form part of the sentence. As such, the fine and compensation cannot be equated. 7) A reliance has been placed on the judgment of Hon'ble Supreme Court reported at 2007 Cri.L.J. 2417 (Dilip S. Dahanukar v. Kotak Mahindra Co.Ltd. & Anr.). My attention was invited to para 73 of the judgment, which runs as under – “73. As such, the fine and compensation cannot be equated. 7) A reliance has been placed on the judgment of Hon'ble Supreme Court reported at 2007 Cri.L.J. 2417 (Dilip S. Dahanukar v. Kotak Mahindra Co.Ltd. & Anr.). My attention was invited to para 73 of the judgment, which runs as under – “73. We, therefore, are of the opinion : i) In a case of this nature, sub-section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; iii) The amount of compensation must be a reasonable sum; iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in subsection (5) of S.357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid.” The reading of the opinion expressed by the Hon'ble Supreme Court in para – 73 of the said judgment makes it absolutely clear that payment of compensation by the appellant or deposit thereof in the Court cannot be a condition precedent for entertaining the appeal. Appeal is a statutory right of the appellant and it cannot be regulated by certain conditions. The Hon'ble Supreme Court in the same paragraph, however, has made it clear that while suspending the sentence, appellate court is entitled to put the appellant on terms. In my considered opinion, one of such terms can be depositing of part of the amount of compensation directed to be paid by the trial Court to the original complainant. 8) I am of firm view that the appellate Court has not committed any error in directing the applicant to deposit a part of amount of compensation awarded by the trial Court to the non-applicant-complainant. However, considering the fact that the applicant is in financial crisis and is unable to arrange for Rs.5,00,000/-, this Court may take a lenient view and modify the order of the appellate Court to the extent that the applicant should deposit Rs.3,00,000/instead of Rs.5,00,000/-. 9) In view of what has been stated by me herein above, I pass the following order. 9) In view of what has been stated by me herein above, I pass the following order. ORDER (1) The revision application is partly allowed. (2) The order of the appellate Court is modified to the extent that the applicant shall deposit Rs.3,00,000/-in the appellate Court instead of Rs.5,00,000/- as directed by the appellate Court by order dated 07/10/2013 below Exhibit-5 in Criminal Appeal No.250 of 2013. (3) The amount of Rs.3,00,000/- shall be paid by the applicant in the appellate Court within a period of 30 days from today in a lump sum or in 3 installments of Rs. 1,00,000/- each as may be convenient to the applicant. (4) The application stands disposed of.