IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL REVISION APPLICATION NO.361 OF 2005 REVISION APPLICATION NO.361 OF 2005 REVISION APPLICATION NO.361 OF 2005 Shashank Kumar. ... Applicant. Versus. The State of Maharashtra & another. ... Respondents. Shri Navin Chomal for the Applicant. Ms.S.D.Shinde, A.P.P. for the Respondent. Shri M.H.Pereira for the Respondent No.2. CORAM CORAM CORAM : ABHAY S. OKA, J. : ABHAY S. OKA, J. : ABHAY S. OKA, J. DATED DATED DATED : 28th October, 2005. : 28th October, 2005. : 28th October, 2005. P.C.: P.C.: P.C.: 1. Heard Shri Chomal Advocate for the Applicant and the learned A.P.P. for the State. 2. The Applicant is an accused in a complaint filed by the Respondent No.2 under section 138 of the Negotiable Instruments Act, 1881. The complaint resulted into conviction of the Applicant. Apart from the substantive sentence, the Applicant was directed to pay compensation of Rs.5 lakhs to the original Complainant. He was permitted to pay the compensation by instalments. 3. An appeal was preferred by the Applicant before the Sessions Court for challenging the order of conviction and sentence. By order dated 21st July 2005 while admitting the appeal, the learned Sessions Judge : 2 : 2 : 2 : observed that the amount of compensation is not deposited and therefore, the later part of the order passed by learned Magistrate of payment of compensation amount of Rs.5 lakhs and in default to suffer R.I. for two months cannot be suspended. 4. The challenge in this application is to the said order passed by the Sessions Court. Shri Chomal appearing for the Applicant submitted that there is no provision to direct imprisonment in default of payment of compensation. He submitted that for suspending sentence, payment of compensation amount cannot be made a condition precedent. 5. I have considered the submissions. Though the first submission of Shri Chomal 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 : 3 : 3 : 3 : 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 to exercise this power liberally so as to meet the ends of justice in a better way. 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 : 4 : 4 : 4 : 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 The The court court court may enforce the order by imposing sentence may enforce the order by imposing sentence may enforce the order by imposing sentence inin in default." default." default." (Emphasis supplied). 6. It must be borne in mind that the conviction is under section 138 of the said Act of 1881. The Apex Court in the case reported in (2001) 6 SCC page 463 (Dalmiya Cement (Bharat) Ltd. v/s. Galaxy Traders and Agencies ltd. and others) has held that section 138 makes a civil transaction to be an offence by legal fiction. The Apex Court held that the object of the said provision is of making a special provision by incorporating a strict liability so far as a cheque is concerned. The Apex Court further held that efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged. 7. It will be necessary to refer to the decision of the Apex Court in the case reported in 2002(2) S.C.C. page 420 (Suganthi Suresh Kumar v/s. Jagdeeshan). The : 5 : 5 : 5 : Apex Court was dealing with the submission that the Court has no power to direct punishment in default of payment of compensation. While dealing with the said submission, the Apex Court held : "9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v/s. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. 10. That apart, section 431 of the Code has only prescribed that any money (other than fine) payable by 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. : 6 : 6 : 6 : 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. 11. When When When this Court pronounced in Hari this Court pronounced in Hari this Court pronounced in Hari Singh Singh Singh v.Sukhbir Singh that a court may enforce v.Sukhbir Singh that a court may enforce v.Sukhbir Singh that a court may enforce an an an order to pay compensation "by imposing a order to pay compensation "by imposing a order to pay compensation "by imposing a sentence sentence sentence in default" it is open to all courts in default" it is open to all courts in default" it is open to all courts inin in India to follow the said course. The said India to follow the said course. The said India to follow the said course. The said legal legal legal position would continue to hold good position would continue to hold good position would continue to hold good until until until it is overruled by a larger Bench of this it is overruled by a larger Bench of this it is overruled by a larger Bench of this Court. Court. Court. Hence learned Single Judge of the High Hence learned Single Judge of the High Hence learned Single Judge of the High Court Court Court of of of Kerala has committed an impropriety by Kerala has committed an impropriety by Kerala has committed an impropriety by expressing expressing expressing that the said legal direction of that the said legal direction of that the said legal direction of this this this Court should not be followed by the Court should not be followed by the Court should not be followed by the subordinate subordinate subordinate courts in Kerala. courts in Kerala. courts in Kerala. We express our disapproval of the course adopted by the said learned Judge in Rajendran v. Jose. 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." (Emphasis supplied. Therefore, the first submission of Shri Chomal has no : 7 : 7 : 7 : merit. 8. A reference will have to be also made to the decision of the Apex Court reported in 2001(2) S.C.C. page 416 (Stanny Felix Pinto v/s. Jangid Builders Pvt.Ltd. and another). In the said judgment the Apex Court held thus: "2. When a person was convicted under section 138 of the Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior court for suspension of the sentence. The High Court while entertaining his revision granted suspension of the sentence by imposing a condition that part of the fine shall be remitted in court within a specified time. It is against the said direction that this petition has been filed. In our view the High Court has done it correctly and in the interest of justice. We feel that while suspending the sentence for the offence under section 138 of the Negotiable Instruments Act, it is advisable that the court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the : 8 : 8 : 8 : pendency of the appeal. In this case the grievance of the appellant is that he is required by the High Court to remit a huge amount of rupees four lakhs as a condition to suspend the sentence. When considering the total amount of fine imposed by the trial Court (twenty lakhs of rupees) there is nothing unjust or unconscionable in imposing such a condition. Hence, there is no need to interfere with the impugned order. As such no notice need be issued to the respondent. Appeal is accordingly dismissed." 9. What has been held by the Apex Court is that while suspending the sentence for the offence under section 138 of the said Act of 1881, it is advisable that the Court imposes a condition that the fine amount is remitted in Court within certain period. The Apex Court observed that if the fine amount is heavy, the court can direct at least a portion thereof to be remitted, as the convicted person wants the sentence to be suspended during the pendency of the appeal. The Apex Court was dealing with a case of an offence under section 138 of the said Act of 1881. The law laid down by the Apex Court will naturally apply also to a case where compensation has been ordered to be paid. Thus when there is a conviction under section 138 of the said Act of 1881, while suspending substantive sentence, it : 9 : 9 : 9 : 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 Code. 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. 10. When a query was made by me whether the Applicant is in a position to deposit substantial amount out of the compensation, Shri Chomal stated that the Applicant is not in a position to pay. 11. There is no merit in the Revision Application and the same is dismissed. Hence the Applicant will have to surrender to his bail bond. 12. On the request made by Shri Chomal appearing for the Applicant time of six weeks is granted to the Applicant to surrender. It is made clear notwithstanding this order, the Appeal Court is free to proceed with the hearing of the appeal and decide the same in accordance with law. Judge. Judge. Judge.