Vijayan vs Sadanandan K. & Anr

Vijayan ... Petitioner

Vs.

Sadanandan K. & Anr. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. In this Special Leave Petition we are called

upon to consider whether a default sentence can be

imposed when compensation is awarded under Sub-

Section (3) of Section 357 of the Code of Criminal

Procedure.

2. In the instant case, the petitioner stood

convicted by the Judicial Magistrate, First Class,

Court-II, Pathanamthitta, of an offence under

Section 138 of the Negotiable Instruments Act,

1881, and sentenced to undergo simple imprisonment 2

for one year and to pay a sum of Rs.8,25,000/- as

compensation to the complainant/Respondent No.1

herein under Section 357(3) of the Code of Criminal

Procedure, (Cr.P.C.in short) and in default to

undergo simple imprisonment for a further period of

six months. On appeal (Criminal Appeal

no.41/2006), the Additional District and Sessions

Judge by her order dated 27th March, 2007 confirmed

the judgment of conviction and sentence passed by

the learned Magistrate. In revision, being Criminal

Revision Petition No.1836 of 2007-D, the Kerala

High Court by its judgment dated 28th May, 2007,

while upholding the conviction, modified the

sentence from imprisonment for a year to

imprisonment till the rising of the Court and to

pay a compensation of Rs.8,25,000/- to the

complainant under Section 357(3) Cr.P.C. and in

default to undergo Simple Imprisonment for six

months.

3

3. It is the said order of the Kerala High, which

has been impugned in the instant Special Leave

Petition.

4. Dr. K.P. Kailasanatha Pillay, learned Advocate

for the petitioner, questioned the judgment of the

High Court mainly on the ground that the High Court

had erred in law in confirming the default clause

made by the Trial Court while directing

compensation to be paid under Section 357(3)

Cr.P.C. According to Dr. Pillay, though Section

357(1) Cr.P.C., inter alia, provides for the

disbursement of fine imposed by way of

compensation, Sub-Section (3), merely empowers the

Court when it imposes a sentence of which fine does

not form a part, to 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.

Dr. Pillay submitted that in the absence of any 4

specific provision with regard to default in

payment of compensation which was distinctly

different from imposition of fine by way of a

penalty, the High court had wrongly confirmed the

default sentence imposed by the learned Magistrate

and upheld by the learned Sessions Judge.

5. Dr. Pillay submitted that according to the

scheme of the Criminal Procedure Code, if any

amount is to be recovered on account of default in

payment of fine, it would have to be done in

accordance with the provisions of Section 421

Cr.P.C. which provides for issue of warrant for the

levy of the amount by attachment and sale of any

movable property belonging to the offender and in

the alternative, by issuance of 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

defaulter. Dr. Pillay also urged that the

provisions of Section 431, which is another mode 5

for recovery of amounts payable as fine, does not,

however, cover cases involving the recovery of

compensation payable under Section 357(3) and

therefore, the only mode available to the Court to

recover any defaulted amount by way of compensation

is to take recourse to the provisions of Section

421 Cr.P.C.

6. In support of his submissions, Dr. Pillay

referred to the decision of this Court in Dilip S.

Dahanukar v Kotak Mahindra Co. Ltd. & Anr. [(2007)

6 SCC 528], wherein, while considering the

difference between the provisions of Section

357(1)(b) and Section 357(3) Cr.P.C., i.e., the

difference between "fine" and "compensation" this

Court observed that the distinction between Sub-

Sections (1) and (3) of Section 357 is apparent as

Sub-Section (1) provides for application of an

amount of fine towards the purposes indicated while

imposing a sentence of which fine forms a part,

whereas Sub-Section (3) is applicable in a 6

situation where the Court imposes a sentence of

which fine does not form a part of the sentence.

This Court went on to observe that when fine is not

imposed, compensation can be directed to be paid

for loss or injury caused to the complainant by

reason of commission of offence and while Sub-

Section (1) of Section 357 provides for application

of the amount of fine, Sub-Section (3) of Section

357 seeks to achieve the same purpose.

7. In this regard, Dr. Pillay also referred to and

relied upon a recent decision of this Court in

Ettappadan Ahammedkutty @ Kunhappu v E.P.

Abdullakoya @ Kunhi Bappu & Anr. in Criminal Appeal

No.1013 of 2007, where the same question as raised

in this Special Leave Petition fell for

consideration and the said appeal was disposed of

by the following order:

"Compensation can be directed to be paid both in terms of sub-section (1) of Section 357 of the Code of Criminal Procedure as also sub-section (3) thereof. However, while exercising jurisdiction 7

under sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of sub-section (1) of Section 357. If the compensation directed to be paid by the Court in exercise of its jurisdiction under sub-section (3) of Section 357 Cr.P.C. is not deposited, the same can be realised as fine in terms of Section 421 of the Code. We are, therefore, of the opinion that that part of the impugned order whereby and whereunder the appellant has been directed to undergo imprisonment for a period of one month, in the event of default to pay compensation under sub-section (3) of Section 357, is set aside. Rest of the order of the High Court is upheld."

8. Dr. Pillay also referred to and relied on a

Single Bench decision of the Kerala High Court in

Rajendran v Jose [2002 (1) Crimes 653], where it

was held that in order to recover compensation

awarded if it remained unpaid, the Trial Magistrate

could take steps under Section 421 or under Section

431 Cr.P.C. to recover the compensation, but the

order directing the petitioner to undergo 8

imprisonment in case of default in payment of

compensation was unsustainable.

9. Dr. Pillay urged that in view of the law as

laid down by this Court in the case of Ettappadan

Ahammedkutty (supra), the High Court was clearly

wrong in upholding the default sentence in case of

non-payment of the compensation amount directed to

be paid.

10. On behalf of the Respondent No.l, it was

submitted by Mr. Raghenth Basant, learned Advocate,

that the judgment of the High Court impugned in

this Petition did not warrant any interference

since the question involved had been settled by

this Court as early as in 1998 in the case of Hari

Singh v Sukhbir Singh [(1998) 4 SCC 551], wherein

it was, inter alia, held that since the imposition

of compensation under Section 357(3) Cr.P.C. was on

account of social concern, the Court could enforce

the same by imposing sentence in default, 9

particularly when no mode had been prescribed in

the Code for recovery of sums awarded as

compensation in the event the same remained unpaid.

Mr. Basant also referred to the decision of this

Court in Sugnathi Suresh Kumar v Jagdeeshan [(2002)

2 SCC 420], where the aforesaid views were

reiterated and it was stated in paragraph 11 of the

said judgment as follows :-

"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) Kerala Law Times 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."

10 11. It was also urged that the decision in Dilip S.

Dahanukar's case (supra), referred to on behalf of

the petitioner, had no application to the issues

involved in the present case since in the said case

the issue was whether Sub-Section (2) of Section

357 could be applied in cases where compensation is

awarded under Sub-Section (3) thereof and it was

urged that the provisions of Sub-Section (2) would

be applicable even in cases where compensation is

awarded under Section 357(3). It was submitted

that the said decision was not an authority for the

proposition that default sentence could be imposed

where compensation is awarded under Section 357(3)

Cr.P.C.

12. As far as two other decisions in Ettappadan

Ahamedkutty's case (supra) and Balraj's case

(supra), relied on by learned counsel for the

Petitioner, the same did not also deal with the

question as to whether a default sentence can be

imposed when compensation is awarded under Section 11 357(3) Cr.P.C., which is the focal question as far

as this case is concerned.

13. Mr. Basant submitted that Section 431 Cr.P.C.

provides that any money (other than a fine) payable

by virtue of any order made under the Code and the

method of recovery of which is not otherwise

expressly provided for, shall be recoverable as if

it were a fine. Mr. Basant submitted that in that

view of the matter, compensation awarded under

Section 357(3) Cr.P.C. could also be recovered

under Section 431 Cr.P.C. read with Section 421

Cr.P.C., which provides the methods for recovery of

fine imposed by the Court from the accused. In

this connection, reference was also made to

Sections 64 to 70 of the Indian Penal Code (IPC),

which empower the Court to impose a default

sentence in case of non-payment of fine. It was

submitted that default sentence is not a

substantive sentence under the IPC and it comes to

an end the moment fine is paid by the accused. It 12

was submitted that Section 53 IPC deals with

various punishments that can be imposed on the

accused, but default sentence is not one of the

sentences mentioned in Section 53. Mr. Basant added

that Section 30 Cr.P.C. also recognizes the power

of the Court to impose a default sentence on non-

payment of fine. Referring to the decision of this

Court in Shantilal v State of Madhya Pradesh

[(2007) 11 SCC 243], Mr. Basant submitted that it

had been held in the said case that a default

sentence is not a sentence as such, but a penalty

which a person incurs on non-payment of fine.

Special reference was made to paragraph 31 of the

judgment which reads as follows :-

"31. The next submission of the learned counsel for the appellant, however, has substance. 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 terms of imprisonment 13

ordered in default of payment of fine stands on a different footing."

The same view was expressed earlier by this

Court in Kuldip Kaur v Surinder Singh [(1989) 1 SCC

405], where it was held that a default sentence is

a mode of enforcing recovery of amount imposed by

way of compensation.

14. It was submitted that if default sentence is

taken to be a mode of recovery, then Sections 64 to

70 IPC would be applicable even in cases where

compensation is awarded to the victim under Section

357(3) Cr.P.C. It was further submitted that while

Section 431 states that an amount other than a fine

is recoverable as if it were a fine, a fine could

also be recoverable either under Section 421

Cr.P.C. by attachment of movable and immovable

property or under Sections 64 to 70 IPC and Section

30 Cr.P.C. It was submitted that the said modes of

enforcement were also available in respect of

compensation directed to be paid under Section 14 357(3) Cr.P.C. in the light of the provisions of

Section 431 thereof.

15. Mr. Basant concluded on the note that since the

powers of the Magistrate were restricted to

awarding a maximum fine of Rs.5,000/-, which was

subsequently enhanced to Rs.10,000/- in 2005, the

maximum fine that can be imposed by a Magistrate is

only Rs.10,000/-. However, in view of the

provisions for awarding compensation under Section

357(3) Cr.P.C., where the power to award

compensation is unlimited, the Magistrate can take

recourse to the provisions of Section 357(3)

Cr.P.C. to meet a particular situation to ensure

that justice is done to the parties.

16. It was submitted that in view of what has been

stated hereinbefore, in appropriate cases the

Courts are competent to impose a default sentence

where compensation is awarded under Section 357(3)

Cr.P.C.

15

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 (supra), 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.

18. In the decision in Rajendran's case (supra),

the learned Single Judge of the Kerala High Court

had held that in order to recover compensation

which remains unpaid, the Trial Magistrate could 16

take steps under Section 421 or Section 431 Cr.P.C.

to recover the same, though ultimately it was held

that imprisonment in case of default of such

payment was not sustainable.

19. In our view, the provision for grant of

compensation under Section 357(3) Cr.P.C. and the

recovery thereof makes it necessary for the

imposition of a default sentence as was held by

this Court firstly in Hari Singh's case (supra) and

thereafter in Sugnathi Suresh Kumar's case (supra).

In our view, the law has been correctly stated in

the said two decisions. As we have mentioned

hereinbefore, when the decision of this Court in

Hari Singh's case (supra) was holding the field,

the learned Single Judge of the High Court had

wrongly relied on the decision of the Kerala High

Court in Rajendran's case (supra). The power to

impose a default sentence in case of non-payment of

compensation under Section 357(3) Cr.P.C. has been

duly recognized by this Court and the arguments 17

advanced to the contrary on behalf of the

Petitioner must, therefore, be rejected.

20. Section 357 Cr.P.C. bears the heading "Order To

Pay Compensation". It includes in sub-Section (1)

the power of the Court to utilize a portion of the

fine imposed for the purpose of compensating any

person for any loss or injury caused by the

offence. In addition, Sub-Section (3) provides that

when a sentence is imposed by the Court, of which

fine does not form a part, the Court may, while

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 suffers

any loss or injury by reason of the act for which

the accused person has been so sentenced. It is

true that the said provision does not include the

power to impose a default sentence, but read with

Section 431 Cr.P.C. the said difficulty can be

overcome by the Magistrate imposing the sentence. 18

To appreciate the said legal position, the

provisions of Section 431 are set out hereinbelow:-

"431. Money ordered to be paid recoverable as 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."

Section 431 makes it clear that any money other

than a fine payable on account of an order passed

under the Code shall be recoverable as if it were

a fine which takes us to Section 64 I.P.C.

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 hereinbelow:- 19

"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) 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 20

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.

23. Having regard to the views expressed

hereinabove, we hold that while awarding

compensation under Section 357(3) Cr.P.C., the

Court is within its jurisdiction to add a default

sentence of imprisonment as was held in Hari

Singh's case (supra).

24. The Special Leave Petition is accordingly

dismissed.

25.The time for making the deposit is extended by

three months from today.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH)

New Delhi Dated: 05.05.2009