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IN THE HIGH COURT OF BOMBAY
Maheshwar Dattatraya Kale
Versus
Capt Atul Wasudeo Divekar
Decided On : (October 26, 2005) 2005
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Section 357(3) - Dishonour of cheque - Conviction and no fine but major compensation - Sentence of 10 days in case of default of payment - Held - Compensation can be ordered by imposing sentence in default - Contention having no merit. - When there is a conviction under Section 138 of the N.I. Act of 1881, while suspending substantive sentence, it is advisable that the appellate Court imposes a condition of deposit of the compensation amount keeping in mind the object of Section 138 of the said Act. When the amount of compensation is heavy, the Court can direct deposit of a reasonable amount. Only in exceptional cases, the appellate Court can grant interim protection without requiring deposit of compensation amount. In the fact of the present case, the Addl. Sessions Judge has directed deposit of 50% of the cheque amount which comes to Rs. 6,25,000/-. In normal course the Judge would have been justified in imposing a condition of deposit of the entire compensation amount. Since the amount was heavy, in view of what has been held by the Apex Court, the Additional Sessions Judge was justified in imposing the condition of deposit of 50% of the cheque amount for suspending the order directing payment of compensation.
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973, Section 389 - Dishonour of cheque - Conviction by trial Court - Suspension of sentence directed by appellate Court - Direction to pay 50% of cheque value challenged - Condition not imposable - Case not normal, in abnormal case such condition not sustainable - Conditional deposit of payment not illegal. - In the facts of the present case, the Addl. Sessions Judge has directed deposit of 50% of the cheque amount which comes to Rs. 6,25,000/-. In normal course the Judge would have been justified in imposing a condition of deposit of the entire compensation amount. Since the amount was heavy, in view of what has been held by the Apex Court, the Additional Sessions Judge was justified in imposing the condition of deposit of 50% of the cheque amount for suspending the order directing payment of compensation. It is submitted that considering the various difficulties faced by the applicant, it is impossible for the applicant to pay the amount as directed by the Sessions Court. He has invited Court’s attention to the documents annexed as annexure "G". In view of this aspect, sufficient time deserves to be granted to the applicant to pay the amount as directed by the Sessions Court.
Criminal Procedure Code, 1973 - Section 357(3) Negotiable Instruments Act, 1881, Section 138 Conviction under Section 138 of Negotiable Instruments Act Order to pay compensation Court may enforce the order by imposing sentence in default. Where in a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, the trial Court sentenced the accused to suffer simple imprisonment of six months and to pay compensation of Rs. 13 lakhs to the complainant and in default thereof to suffer simple imprisonment for 10 days. Applicant filed an appeal before Sessions Court which suspended the substantive sentence passed by the trial Court till the decision of the appeal challenging the order of the Sessions Court.
Held, that trial Court has rightly imposed punishment in default of payment of compensation in view of the law laid down by the Apex Court in the case of Hari Singh v. Sukhbir Singh and others, reported in 1988 SCC (Cri) 984. Section 357(3) 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. This power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. 1988 SCC (Cri) 984, Rel.
( 1 ) ON the last date I have heard the learned counsel appearing for the parties.
( 2 ) THE Applicant is an accused in a private complaint filed under section 138 of the Negotiable instruments Act, 1881 (hereinafter referred to as the said Act of 1881 ). The Respondent No. 1 is the original complainant in the said complaint. The said complaint was heard by the learned Judicial Magistrate First class, Pune. By his Judgment and order dated 27th July 2005, the learned Magistrate sentenced the Applicant to suffer simple imprisonment of six months and to pay compensation of Rs. 13 lakhs to the Complainant and in default thereof to suffer simple imprisonment for 10 days.
( 3 ) AN Appeal was preferred by the Applicant before the Sessions court. The Appeal was admitted by the learned Adhoc Addl. Sessions Judge, Pune. By order dated 22nd August 2005, the learned Judge directed that the substantive sentence passed by the trial Court is suspended till decision of the Appeal and till then the applicant shall be released on P. R. Bond of Rs. 25,000/- with one or two solvent sureties in the like amount. The learned Judge directed that the conviction and sentence stands suspended on the Appellant depositing half of the cheque amount i. e. Rs. 6,25,000/- within 15 days. The challenge in this Application is to the said part of the order dated 22nd August 2005.
( 4 ) SHRI Mohite appearing for the Applicant has made detailed submissions. He submitted that on a plain reading of section 357 of the Code of Criminal procedure, 1973, the learned Magistrate could not have imposed punishment in default of payment of compensation. He submitted that the direction was to make payment of compensation and not fine and therefore, the order passed by the learned Magistrate directing that in default of payment of compensation, the applicant will have to suffer simple imprisonment for 10 days is patently illegal. He submitted that under section 389 of the said Code, the learned Additional sessions Judge could not have imposed condition while suspending substantive sentence by directing the applicant to deposit half of the cheque amount i. e. Rs. 6. 25. 000/ -. He submitted that section 389 of the said Code does not give jurisdiction to the Appellate court to impose such a condition. The learned Advocate appearing for the Respondent No. 1 supported the impugned judgment and Order.
( 5 ) I have considered the submissions. Though the first submission of Shri Mohite may appear to be prima-facie attractive, the law laid down by the Apex court on the subject appears to be against him. In a case reported in 1988 S. C. C. (Cri.) page 984 (Hari Singh v/s. Sukhbir Singh and others), the Apex Court had an occasion to consider the effect of Section 357 of the said Code and in particular sub-section (3) thereof. The Apex Court in paragraphs 10 and 11 held thus:"10. 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 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 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
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