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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1052 OF 2010
(Arising out of SLP (Crl.) No. 334 of 2008)
K.A. Abbas H.S.A. ..........Appellant
Versus
Sabu Joseph & Anr. ........Respondents
WITH
CRIMINAL APPEAL NO. 1053 OF 2010
(Arising out of SLP (Crl) No. 4099 of 2008)
Sabu Joseph ..........Appellant
Versus
K.A. Abbas & Anr. ........Respondents
JUDGMENT
H.L. Dattu, J.
Leave granted in both the special leave petitions.
2) These two appeals are directed against the judgment and order
of the High Court of Kerala in Crl. Rev. Petition No.1387 of 2006
dated 03.10.2007.
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3) Since parties are common and the legal issues are identical,
they are heard together and disposed of by this common order.
4) The factual matrix in brief is as under:- The facts in criminal
revision petition No.1387 of 2006 may be noticed for the purpose
of disposal of the appeals. The appellant (accused) and the
respondent (complainant) are employed as High School assistants
in SSHSS school in Moorkanand. The respondent has filed a
complaint against the appellant before the learned Magistrate for
an offence under Section 138 of the Negotiable Instruments Act
(the `Act' for short). The complainant's case is that the appellant,
who was due in a sum of Rs.5,00,000/-, issued a cheque dated
16.06.2003 in respect of that liability, and when the cheque was
presented for encashment, the same was returned with an
endorsement of "insufficiency of funds."
5) The complainant, through his Advocate, had issued notice to
the appellant demanding the payment and that in spite of the
service of notice, the appellant failed to pay the amount covered by
the cheque and thus has committed an offence under Section 138
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of the Act and, accordingly, has approached the learned Magistrate
for appropriate reliefs.
6) The learned Magistrate after taking cognizance of the offence
and after recording the evidence of the parties and after analyzing
the same, has found the accused guilty of the offence punishable
under Section 138 of the Act and sentenced to simple
imprisonment for one year. In addition to that he had directed to
pay a compensation of Rs. 5 lakhs to the complainant under
Section 357(3) of the Cr.PC, and in default, to undergo simple
imprisonment for a further period of two months.
7) The accused filed appeal before the Sessions Court, Manjeri
being Criminal Appeal No. 59 of 2004. The Sessions Court while
entertaining the appeal had directed the petitioner to deposit Rs.
one lakh within one month being a part of the compensation
amount. The appellant has complied with that order by depositing
the amount as directed before the Judicial 1st Class Magistrate,
Manjeri. Eventually, the Sessions Judge by his order dated
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21.03.2006 confirmed the judgment of conviction and sentence
passed by learned Magistrate.
8) The accused preferred revision petition being Criminal
Revision Petition No. 1387 of 2006 before the High Court of
Kerala at Ernakulam. The High Court passed an interim order
directing the petitioner to deposit an amount of Rs. 1 lakh before
the Judicial Magistrate and, accordingly, the said amount was also
deposited. The High Court while disposing of the Revision Petition
has observed that the courts below had appreciated the facts
correctly and there is no error, illegality or impropriety in the
finding recorded by the courts below to set aside the conviction
and sentence. The High court has further stated that the only
question which requires to be answered is, whether a proper
sentence has been imposed on the accused by the courts below.
The court after taking into consideration the peculiar facts and
circumstances of the case has modified the sentence imposed on
the accused to the extent, that, if the petitioner pays the
compensation amount of Rs. 4 lakhs (keeping in mind that the
petitioner had deposited an amount of Rs. 1 lakh before the trial
court towards the compensation amount) within a period of five
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months, then he needs to undergo imprisonment only till the rising
of the court and if the petitioner commits default in making the
payment aforesaid, he shall undergo simple imprisonment for three
months by way of default sentence.
9) Being aggrieved, the accused is before this court by way of
Criminal Appeal arising out of SLP (Crl.) No. 334 of 2008. The
main contention of the accused is that this court in Criminal
Appeal No. 1013 of 2007 has held, that, while exercising
jurisdiction under Section 357(3) of the Cr.PC, no direction can be
issued that in default of payment of compensation, the accused
shall suffer simple imprisonment. In effect the Supreme Court has
confirmed the judgment passed in the case of Radhakrishna Nair v.
Padmanabhan [(2000) 2 KLT 349], wherein the Kerala High Court
had given a similar finding. The accused also contends, that, there
is a factual error in the judgment of the High court to the effect that
the accused had already deposited Rs. 2 lakhs towards paying the
compensation amount pursuant to interim orders of the Sessions
Court and the High Court respectively, instead the High Court has
observed that only Rs. 1 lakh has been deposited.
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10) The complainant being aggrieved by the sentence imposed on
the accused has filed SLP (Crl) No. 4099 of 2008. The contention
of the complainant is that, the sentence imposed is very minimal
and will defeat the very purpose of Section 138 of N.I Act and if
for any reason the default sentence is deleted then there is no
chance of the accused paying the compensation . In this regard, the
complainant relies on the observation of this court in the case of
Suganthi Suresh Kumar v. Jagdeeshan, [(2002) 2 SCC 420].
11) Heard learned counsel for both sides. The learned counsel
for the accused submits, that, the default sentence imposed by the
learned Judge of the High Court is against the dicta of this Court in
the case of ETTAPPADAN AHAMMED KUTTY @
KUNHAPPU VS. E.P. ABDULLAKEYA @ KUNHI BAPPU
AND ANOTHER (Criminal Appeal No. 1031 of 2007). Per
contra, the learned counsel for the respondent ably justifies the
impugned judgment. The learned counsel also relies on the
observations made by this Court in the case of Suganthi Suresh
Kumar Vs. Jagdeeshan, [(2002) 2 SCC 420].
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12) The main question that requires to be considered and decided
is, whether in default of payment of compensation ordered under
Section 357 (3) of the Cr.P.C., a default sentence can be imposed ?
13) Let us now look at the relevant provisions and the decision of
this court on which reliance is placed by learned counsel.
14) Section 357 of Cr.PC reads:-
"(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 shelf all offence,
in paying in, 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, misappropriation,
criminal breach of trust or cheating, or of having
dishonestly received or retained, or of having
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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 his 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 his been so sentenced.
(4) An order under this section may also be made by
all 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 account any sum paid or
recovered as compensation under this section."
15) Essentially the section empowers the courts, not to just
impose a fine alone or fine along with the sentence of
imprisonment, but also when the situation arises, direct the accused
to pay compensation to the person who has suffered any loss or
injury by reason of the act for which the accused person has been
sentenced.
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16) The above view we have taken is supported by the decisions of
this Court, to which we presently refer.
17) In the case of Sarwan Singh and ors. v. State of Punjab (AIR
1978 SC 1525), this court has noticed the object and genesis of the
section.
"10. The law which enables the Court to direct
compensation to be paid to the dependants is found in
Section 357 of the CrPC (Act 2 of 1974). The
corresponding provision in the 1898 Code was Section
545. Section 545 of the CrPC (Act 5 of 1898) was
amended by Act 18 of 1923 and by Act 26 of 1955. The
amendment which is relevant for the purpose of our
discussion is 545(1)(bb) which, for the first time was
inserted by Act 26 of 1955. By this amendment the court
is enabled to direct the accused, who caused the death of
another person, to pay compensation to the persons who
are, under the Fatal Accidents Act, entitled to recover
damages from the persons sentenced, for the loss
resulting to them from such death. In introducing the
amendment, the Joint Select Committee stated "when
death has been caused to a person, it is but proper that his
heirs and dependants should be compensated, in suitable
cases, for the loss resulting to them from such death, by
the person who was responsible for it. The Committee
proceeded to state that though Section 545 of the Code as
amended in 1923 was intended to cover such cases, the
intention was not however very clearly brought out and
therefore in order to focus the attention of the courts on
this aspect of the question, the Committee have amended
Section 545 and it has been made clear that a fine may
form a part of any sentence including a sentence of death
and it has also been provided that the persons who are
entitled under the Fatal Accidents Act, 1855, to recover
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damages from the person sentenced may be compensated
out of the fine imposed. It also expressed its full
agreement with the suggestion that at the time of
awarding judgment in a case where death has resulted
from homicide, the court should award compensation to
the heirs of the deceased. The Committee felt that this
will result in settling the claim once for all by doing away
with the need for a further claim to a civil Court, and
avoid needless worry and expense to both sides. The
Committee further agreed that in cases where the death is
the result of negligence of the offender, appropriate
compensation should be awarded to the heirs. By the
introduction of Clause (bb) to Section 545(1), the
intention of the legislature was made clear that, in
suitable cases, the heirs and dependents should be
compensated for the loss that resulted to them from the
death, from a person who was responsible for it. The
view was also expressed that the court should award
compensation to the heir of the deceased so that their
claims would be settled finally. This object is sought to
be given effect to by Section 357 of the new Code (Act 2
of 1973). Section 357(3) provides that 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 Joss or injury by reason of the act
for which the accused person has been so sentenced. The
object of the section therefore, is to provide
compensation payable to the persons who are entitled to
recover damages from the person sentenced even though
fine does not form part of the sentence. Though Section
545 of 1898 Code enabled the court only to pay
compensation out of the fine that would be imposed
under the law, by Section 357(3) when a Court imposes a
sentence, of which fine does not form a part, the Court
may direct the accused to pay compensation. In awarding
compensation it is necessary for the court to decide
whether the case is a fit one in which compensation has
to be awarded. If it is found that compensation should be
1
paid, then the capacity of the accused to pay a
compensation has to be determined. In directing
compensation, the object is to collect the fine and pay it
to the person who has suffered the loss. The purpose will
not be served if the accused is not able to pay the fine or
compensation for, imposing a default sentence for non-
payment of fine would not achieve the object. If the
accused is in a position to pay the compensation to the
injured or his dependents to which they are entitled to,
there could be no reason for the Court not directing such
compensation. When a person, who caused injury due to
negligence or is made vicariously liable is bound to pay
compensation it is only appropriate to direct payment by
the accused who is guilty of causing an injury with the
necessary Mens Rea to pay compensation for the person
who has suffered injury."
18) In Balraj v. State of UP (AIR 1995 SC 1935), this court has
held, that, 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 provision and it must also be noted that power to
award compensation is not ancillary to other sentences but it is in
addition thereto.
19) In Hari Kishan v. Sukhbir Singh and ors. (AIR 1988 SC 2127),
this court has observed that, 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
1
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 this 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 Courts to
exercise this power liberally so as to meet the ends of justice in a
better way.
20) In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.,
[(2007) 6 SCC 528], this court differentiated between fine and
1
compensation, and while doing so, has stated that the distinction
between Sub-Sections (1) and (3) of Section 357 is apparent. Sub-
section (1) provides for application of an amount of fine while
imposing a sentence of which fine forms a part; whereas Sub-
Section (3) calls for a situation where a Court imposes a sentence
of which fine does not form a part of the sentence.
The court further observed:-
"19. Compensation is awarded towards sufferance of any
loss or injury by reason of an act for which an accused
person is sentenced. Although it provides for a criminal
liability, the amount which has been awarded as
compensation is considered to be recourse of the victim
in the same manner which may be granted in a civil suit."
Finally the court summed up:-
"22. We must, however, observe that there exists a
distinction between fine and compensation, although, in a
way it seeks to achieve the same purpose. An amount of
compensation can be directed to be recovered as a 'fine'
but the legal fiction raised in relation to recovery of fine
only, it is in that sense `fine' stands on a higher footing
than compensation awarded by the Court."
21) Moving over to the question, whether a default sentence can be
imposed on default of payment of compensation, this court in the
case of Hari Singh v. Sukhbir Singh and in Balraj v. State of U.P,
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has held that it was open to all courts in India to impose a sentence
on default of payment of compensation under sub-section (3) of
Section 357. In Hari Singh v. Sukhbir Singh (supra), this court has
noticed certain factors which requires to be taken into
consideration while passing an order under the section:-
"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 instalments, may also be
given. The Court may enforce the order by imposing
sentence in default."
22) This position also finds support in the case of R v. Oliver John
Huish; [1985] 7 Cr. App. R.(S.) 272. The Lord Justice Croom -
Johnson speaking for the Bench has observed:
"When compensation orders may possibly be made the
most careful examination is required. Documents should
be obtained and evidence either on affidavit or orally
should be given. The proceedings should, if necessary,
be adjourned, in order to arrive at the true state of the
defendant's affairs.
Very often a compensation order is made and a very light
sentence of imprisonment is imposed, because the court
1
recognizes that if the defendant is to have an opportunity
of paying the compensation he must be enabled to earn
the money with which to do so. The result is therefore an
extremely light sentence of imprisonment. If the
compensation order turns out to be virtually worthless,
the defendant has got off with a very light sentence of
imprisonment as well as no order of compensation. In
other words, generally speaking, he has got off with
everything."
23) The law laid down in Hari Singh v. Sukhbir Singh (supra) was
reiterated by this court in the case of Suganthi Suresh Kumar v.
Jagdeeshan, [(2002) 2 SCC 420]. The court observed:-
"5. In the said decision this Court reminded all
concerned that it is well to remember the emphasis laid
on the need for making liberal use of Section 357(3) of
the Code. This was observed by reference to a decision
of this Court in 1989 Cri LJ 116 Hari Singh Vs. Sukhbir
Singh. In the said decision this Court held as follows:-
"The quantum of compensation may be determined by
taking into account the nature of crime, the justness of
the 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 instalments,
may also be given. The court may enforce the order by
imposing sentence in default."
(emphasis supplied)
"10. That apart, Section 431 of the Code has only
prescribed that any money (other than fine) payable by
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virtue of an order made under the Code shall be
recoverable "as if it were a fine". Two modes of recovery
of the fine have been indicated in Section 421(1) of the
Code. The proviso to the Sub-section says that if the
sentence directs that in default of payment of the fine, the
offender shall be imprisoned, and if such offender has
undergone the whole of such imprisonment in default, no
court shall issue such warrant for levy of the amount."
The court further held:-
"11. When this Court pronounced in Hari Singh v.
Sukhbir Singh (supra) that a court may enforce an order
to pay compensation "by imposing a sentence in default"
it is open to all courts in India to follow the said course.
The said legal position would continue to hold good until
it is overruled by a larger bench of this court. Hence
learned single judge of High Court of Kerala has
committed an impropriety by expressing that the said
legal direction of this Court should not be followed by
the subordinate courts in Kerala. We express our
disapproval of the course adopted by the said judge in
Rajendran v. Jose 2001 (3) KLT 431. It is unfortunate
that when the Sessions judge has correctly done a course
in accordance with the discipline the Single judge of the
High Court has incorrectly reversed it."
24) In order to set at rest the divergent opinion expressed in
Kunhappu's case (supra), this Court in the case of Vijayan v.
Sadanandan K. and Anr., [(2009) 6 SCC 652], after noticing the
provision of Section 421 and 431 of Cr.PC, which dealt with mode
of recovery of fine and Section 64 of IPC, which empowered the
1
courts to provide for a sentence of imprisonment on default of
payment of fine, the Court stated:
"17. We have carefully considered the submissions made
on behalf of the respective parties. Since a decision on
the question raised in this petition is still in a nebulous
state, there appear to be two views as to whether a default
sentence on imprisonment can be imposed in cases where
compensation is awarded to the complainant under
Section 357(3) Cr.P.C. As pointed out by Mr. Basant in
Dilip S. Dahanukar's case, the distinction between a fine
and compensation as understood under Section 357(1)(b)
and Section 357(3) Cr.P.C. had been explained, but the
question as to whether a default sentence clause could be
made in respect of compensation payable under Section
357(3) Cr.P.C, which is central to the decision in this
case, had not been considered."
The court further held:-
"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) are as 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."
25) In Shantilal v. State of M.P., [(2007) 11 SCC 243], it is stated,
that, the sentence of imprisonment for default in payment of a fine
1
or compensation is different from a normal sentence of
imprisonment. The court also delved into the factors to be taken
into consideration while passing an order under Section 357(3) of
the Cr.PC. This court stated:-
"The term of imprisonment in default of payment of fine
is not a sentence. It is a penalty which a person incurs on
account of non-payment of fine. The sentence is
something which an offender must undergo unless it is
set aside or remitted in part or in whole either in appeal
or in revision or in other appropriate judicial proceedings
or "otherwise". A term of imprisonment ordered in
default of payment of fine stands on a different footing.
A person is required to undergo imprisonment either
because he is unable to pay the amount of fine or refuses
to pay such amount. He, therefore, can always avoid to
undergo imprisonment in default of payment of fine by
paying such amount. It is, therefore, not only the power,
but the duty of the court to keep in view the nature of
offence, circumstances under which it was committed,
the position of the offender and other relevant
considerations before ordering the offender to suffer
imprisonment in default of payment of fine."
26) In Kuldip Kaur v. Surinder Singh and anr. (AIR 1989 SC 232),
in the context of Section 125 Cr.PC observed that sentencing a
person to jail is sometimes a mode of enforcement. In this regard
the court stated:-
"6. A distinction has to be drawn between a mode of
enforcing recovery on the one hand and effecting actual
recovery of the amount of monthly allowance which has
fallen in arrears on the other. Sentencing a person to jail
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is a 'mode of enforcement'. It is not a 'mode of
satisfaction' of the liability. The liability can be satisfied
only by making actual payment of the arrears. The whole
purpose of sending to jail is to oblige a person liable to
pay the monthly allowance who refuses to comply with
the order without sufficient cause, to obey the order and
to make the payment. The purpose of sending him to jail
is not to wipe out the liability which he has refused to
discharge. Be it also realised that a person ordered to pay
monthly allowance can be sent to jail only if he fails to
pay monthly allowance 'without sufficient cause' to
comply with the order. It would indeed be strange to hold
that a person who 'without reasonable cause' refuses to
comply with the order of the Court to maintain his
neglected wife or child would be absolved of his liability
merely because he prefers to go to jail. A sentence of jail
is no substitute for the recovery of the amount of monthly
allowance which has fallen in arrears."
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.PC. 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 is 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
1
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.
28) Section 421 of Cr.PC reads:-
"421. Warrant for levy of fine.
(1) When an offender has been sentenced to pay a the
court passing the sentence make action for the recovery
of the fine in either or- both of the following ways, that is
to say, it may -
(a) Issue a warrant for the levy of the amount by
attachment and sale of any movable property belonging
to the offender
(b) Issue a warrant to the Collector of the district,
authorizing him to realize the amount as arrears of land
revenue from the movable or immovable property, or
both of the defaulters;
Provided that, if the sentence directs that in default of
payment of the fine, the offender shall be imprisoned,
2
and if such offender has undergone the whole of such
imprisonment in default, no court shall issue such
warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless it has
made an order for the payment of expenses or
compensation out of the fine under section 357.
(2) The State Government may make rules regulating the
manner in which warrants under clause (a) of sub-section
(1) are to be executed, and for the summary
determination of any claims made by any person other
than the offender in respect of any property attached in
execution of such warrant.
(3) Where the court issues a warrant to the Collector
under clause (b) of sub-section (1), the Collector shall
realize the amount in accordance with the law relating to
recovery of arrears of land revenue, as if such warrant
were a certificate issued under such law:
Provided that no such warrant shall be executed by the
arrest or detention in prison of the offender."
Section 431 of Cr.PC reads:-
"431. Money ordered to be paid recoverable as a fine.
Any money (other than a fine) payable by virtue of any
order made under this Code, and the method of recovery
of which is not otherwise expressly provided for, shall be
recoverable as if it were a fine.
Provided that section 421 shall, in its application to an
order under section 359, by virtue of this section, be
construed as if in the proviso to sub-section (1) of section
421, after the words and figures "under section 357", the
words and figures "or an order for payment of costs
under section 359" had been inserted."
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29) Section 431 clearly provides that an order of compensation
under Section 357 (3) will be recoverable in the same way as if it
were a fine. Section 421 further provides the mode of recovery of a
fine and the section clearly provides that a person can be
imprisoned for non-payment of fine. Therefore, going by the
provisions of the code, the intention of the legislature is clearly to
ensure that mode of recovery of a fine and compensation is on the
same footing. In light of the aforesaid reasoning, the contention of
the accused that there can be no sentence of imprisonment for
default in payment of compensation under Section 357 (3) should
fail.
30) A similar position is also prevalent in other countries. In the
United Kingdom, Section 82 (3) of Magistrates' Courts Act, 1980
allows for a sentence of imprisonment for default in payment of a
fine or any financial order. The Section reads:-
"Where on the occasion of the offender's conviction a
magistrates' court does not issue a warrant of
commitment for a default in paying any such sum as
aforesaid or fix a term of imprisonment under the said
Section 77(2) which is to be served by him in the event
of any such default, it shall not thereafter issue a warrant
of commitment for any such default or for want of
sufficient distress to satisfy such a sum unless:-
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(a) he is already serving a sentence of custody for life, or
a term of imprisonment, detention in a young offender
institution, or detention under Section 9 of the
Criminal Justice Act, 1982; or
(b) the court has since the conviction inquired into his
means in his presence on at least one occasion."
31) In Australia, under Section 4 of the Sentencing Act, 1997 the
definition of "fine" includes a compensation order. Procedure for
enforcement of fines is provided for in Section 47(7) of the Act and
provides for a sentence of imprisonment or default in payment of
fine.
32) The Learned Counsel for the accused has placed reliance on
the decision of this court in the case of Ettappadan
Ahammedakutty v. E.P Abdullakeya (Criminal Appeal no. 1013 of
2007), which reiterated the position taken by the Kerala High
Court in a case reported in 2000 (2) KLT 349; wherein it was held
that no sentence of imprisonment can be passed on default of
paying compensation awarded under Section 357(3). But in light of
several decisions reiterating the opposite stand, this case needs to
be viewed in isolation and cannot be taken to be against the
established position preferred by the Supreme Court on this issue
over a period of two decades.
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33) The complainant in the Civil Appeal arising out of
S.L.P.(Crl.) No.4099 of 2008 has contended that the sentence
imposed for default in payment of the compensation amount is
very minimal and, therefore, the sentence imposed by the High
Court requires to be enhanced. In our considered view, looking into
the facts and circumstances of the case and the nature of the
offence, we find no good reason to interfere with the quantum of
sentence imposed.
34) The contention of the accused as regards a factual error made
by the High Court, wherein the High Court stated that the accused
had deposited Rs. 1 lakh towards the compensation amount
requires to be accepted. It is to be noted that the accused has
already deposited Rs.2 lakhs towards the compensation amount of
Rs. 5 lakhs, before the Judicial Magistrate in pursuance of orders
passed by the Sessions Court and the High Court. Therefore, the
appeal of the accused, i.e. Criminal Appeal arising out of Special
Leave Petition (Crl.) No.334 of 2008 is allowed to the extent that
he needs to pay a further amount of Rs. 3 lakhs towards the
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compensation amount of Rs. 5 lakhs. The remaining part of the
sentence passed by the High Court requires to be confirmed.
35) In the result, the conviction and sentence passed against the
accused in Criminal Appeal arising out of S.L.P.(Crl.) No.334 of
2008 are confirmed with the modification, as observed in the
earlier paragraph. Criminal Appeal arising out of S.L.P.(Crl.)
No.334 of 2008 is, accordingly, partly allowed. Since, we are of
the opinion that modification of the sentence is not warranted in
the facts and circumstances of the case, Criminal Appeal arising
out of Special Leave Petition (Crl.) No. 4099 of 2008 filed by the
complainant is dismissed.
...........................
............J.
[ P. SATHASIVAM ]
.......................................J.
[ H.L. DATTU ]
New Delhi,
May 11, 2010
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