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TMI Blog2009 (5) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... YRIAC, JJ. JUDGEMENT 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld enforce the same by imposing sentence in default, 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 Singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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