Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1003 (MP)

Sanjay Chandak v. Noshad Khan

2017-09-15

S.K.PALO

body2017
ORDER : S.K. Palo, J. Counsel for the petitioner prays for a limited relief that compensation has been awarded under Section 357(3) of Cr.P.C., but the learned Appellate Court has directed to recover this amount as in the mode prescribed for recovery of fine under the Cr.P.C. Therefore, the recovery by way of fine would be protracted and cumbersome. Hence, in default of compensation, sentence of imprisonment may be awarded. 2. Brief facts just necessary for disposal of this petition are that, JMFC, Sehore in Criminal Case No.116/2009, decided on 08/12/2010, convicted the respondent/accused for offence under Section 138 of Negotiable Instruments Act and sentenced to 6 months rigorous imprisonment with compensation to the tune of Rs. 2,80,000/-. 3. The respondent/accused preferred criminal appeal No.244/2010 which was decided on 01/06/2011 by the Second AJ to the Court of First ASJ, Sehore and maintained the conviction and the compensation awarded under Section 357(3) of Cr.P.C. But reduced the imprisonment to 18 days already undergone. Further, it is observed by the learned ASJ that the compensation awarded is recoverable as per the procedure prescribed for recovery of fine amount. 4. Petitioner has submitted that the learned ASJ as well as the learned JMFC failed to mention that the amount of compensation awarded under Section 357(3) of Cr.P.C., if not paid can be enforced by awarding appropriate sentence of imprisonment. 5. Counsel for the petitioner has placed reliance in the case of R. Mohan v. A.K. Vijaya Kumar reported as 2013 (1) MPHT 1 (SC). 6. Considered the submissions, the learned JMFC has convicted the respondent/accused and sentenced the respondent for 6 months rigorous imprisonment and also awarded compensation to the tune of Rs. 2,80,000/-. It has ordered to recover the compensation by way of procedure prescribed for recovery of fine amount. The same has been ordered by the learned ASJ, Sehore. 7. 6. Considered the submissions, the learned JMFC has convicted the respondent/accused and sentenced the respondent for 6 months rigorous imprisonment and also awarded compensation to the tune of Rs. 2,80,000/-. It has ordered to recover the compensation by way of procedure prescribed for recovery of fine amount. The same has been ordered by the learned ASJ, Sehore. 7. In the case of R. Mohan (supra), the Hon'ble Apex Court has held that, Negotiable Instruments Act, 1881, Section 138-Code of Criminal Procedure, 1973, Sections 357 (3), 421 and 431- Penal Code, 1860, Section 64- Offence under Section 138, Negotiable Instruments Act, 1881- Infliction of sentence of imprisonment in default of payment of compensation-Permissibility of - Metropolitan Magistrate, Chennai convicted the accused sentenced him to undergo 3 months' simple imprisonment and to pay compensation of 5 lacs to the complainant under Section 357 (3) of Cr.P.C. in default to undergo 2 months' simple imprisonment-In appeal, IIIrd Additional Fast Track District and Sessions Judge, Chennai confirmed the conviction and sentence-In revision, the High Court confirmed the order of conviction and sentence of three months' simple imprisonment and to pay compensation of Rs. 5 lacs, but set aside the sentence in default of payment of compensation, when substantive sentence of imprisonment had been independently awarded-On appeal by Special Leave by the complainant to the Supreme Court; held that in a case like the present one, where a fine is not a part of the sentence, Section 357 (3), Cr.PC is attracted empowering the Court to a ward compensation-In order to make such order effective, Section 431, Cr.PC comes to aid, providing that any money other then a fine, shall be recoverable as if it were a fine-Section 421, Cr.PC states one mode for recovery of fine, viz., issue of warrant for levy of fine-But, such remedy may prove to be protracted or cumbersome-Section 64 IPC in such case comes to rescue which provides that sentence of imprisonment in default of payment of fine may be awarded. The conclusion, therefore, is that order to pay compensation may be enforced by awarding sentence of imprisonment in default-In view of this, there was no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding sentence of imprisonment, in default of payment of compensation. The conclusion, therefore, is that order to pay compensation may be enforced by awarding sentence of imprisonment in default-In view of this, there was no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding sentence of imprisonment, in default of payment of compensation. The High Court was in error in setting aside the sentence of imprisonment in default of payment of compensation-Complainant's appeal allowed. 8. In the case of Kumaran v. State of Kerala and another reported as (2017) (7) SCC 471, the appellant/accused was convicted and sentenced under Section 138 of Negotiable Instruments Act. At the same time was directed to pay compensation to the complainant under Section 357 (3) of Cr.P.C. It was clarified that if there was default in payment of compensation, then the appellant/accused shall undergo simple imprisonment of 1 month. His sentence was challenged before the Sessions Court. While confirming conviction, the Sessions Court reduced sentence of 4 months to imprisonment till rising of the Court. However, order to pay compensation with default clause was sustained. Therefore, the appellant/accused underwent imprisonment of 1 month for default to pay compensation. Subsequently, the complainant filed a petition before the jurisdictional Magistrate under Section 421 of Cr.P.C. for realization of compensation. This petition was allowed. The application of the appellant/accused for recall of said order was dismissed. When this order was challenged before the High Court, it declined to interfere. Therefore, the appeal was preferred before the Hon'ble Supreme Court. The Supreme Court having examined all the aspects, dismissed the appeal. The case of Kumaran (supra) not only established that in default of payment of compensation under Section 357(3) of Cr.P.C. sentence can be imposed but it also has propounded that even after the accused is served the sentence and default of payment of fine or compensation, the compensation or fine can be recoverable in manner provided under Section 421 (1) of Cr.P.C., without any need of recording any special reasons. 9. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) of Cr.P.C., compensation is awarded for the loss of injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. In terms of Section 357(3) of Cr.P.C., compensation is awarded for the loss of injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated, if he is driven to take recourse to Section 421 of the Code. 10. In view of the above citations and the view expressed by the Hon'ble Apex Court, I find no illegality in passing an order to pass a sentence of imprisonment in default of payment of the compensation awarded. Therefore, this petition is allowed. 11. It is directed that if the respondent failed to deposit the payment of compensation (i.e. Rs. 2,80,000/-) awarded under Section 357(3) of Cr.P.C., the learned trial Court may send him to jail for a period of 6 months for the default. In the nutshell, the respondent/accused, in default of payment of the compensation awarded (i.e. Rs. 2,80,000/-), he may be sentenced for simple imprisonment for a period of 6 months. 12. It is further made clear that, as the judgment dated 01/06/2011 has been passed few year ago, therefore, it is deemed fit to issue notice to the respondent to deposit the amount within a period of 30 days from the date of receipt of the notice, failing which he may be sentence as aforementioned. 13. Petition is accordingly allowed.