IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Crl.Rev.Pet.No. 133 of 2004(B) ------------------------------------------------- CRRP.18/2002 of ADDL. SESSIONS COURT, ALAPPUZHA ST.180/1999 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER/IST COUNTER PETITIONER/ACCUSED: JOHN BOSCO, KUTTINGAL HOUSE, MATTATHIPARAMBU, THANNEERMUKKOM, CHERTHALA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS/PETR & 2ND CR.PETR/COMPLAINANT& STATE: 1. M.ABDUL KADER, S/O.MUHAMMED KOYA, SPRING VILLA, 326 BLAVATH, MANNANACHERRY.P..O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PRAKASH P.GEORGE FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.133 of 2004 -------------------------- ORDER Revision petitioner is challenging the order granting compensation to the first respondent/ complainant in a conviction for the offence under Section 138 of Negotiable Instruments Act by the revisional court, on a revision filed by the complainant. Petitioner was convicted and sentenced to simple imprisonment for two months for the offence under Section 138 of Negotiable Instruments Act. No compensation was awarded by the learned Chief Judicial Magistrate, though the cheque was for Rupees One lakh. First respondent challenged the sentence before Sessions Court contending that the sentence awarded is insufficient. Learned Additional Sessions Judge, after hearing the petitioner and the first respondent, found that the sentence awarded is not reasonable. Learned Additional Sessions Judge held: “That being the CRRP 133/04 2 position, regard being had to the amount involved in the cheque, the sentence of simple imprisonment for two months awarded is nothing but a flea bite sentence, because he was let off by such flea bite sentence, he suffered the sentence and escaped from the liability. It can never be said that justice was done to the complainant.” Learned Additional Sessions Judge found that sentence awarded was illegal and altered the sentence by awarding a compensation of Rupees One lakh under Section 357 (3) of Code of Criminal Procedure with a default sentence of simple imprisonment for three months. This revision is filed challenging the sentence. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that when learned Additional Sessions Judge did not alter the substantive sentence, he has no jurisdiction to award compensation in a revision filed by the first respondent. Argument is that as provided under CRRP 133/04 3 Section 386(c) of Code of Criminal Procedure, when the sentence is not altered, compensation cannot be granted. Argument of the learned counsel is that compensation does not form part of the sentence as provided under Section 53 of Indian Penal Code and therefore, modification of the sentence by awarding compensation alone is not alteration of the sentence and hence, the enhanced sentence awarded by the learned Additional Sessions Judge is illegal. Relying on the decision of the Apex Court in Dilip v. Kotak Mahindra Co. Ltd. (2007 (2) KLT 488), learned counsel argued that compensation awarded without conducting an enquiry on the capacity of the petitioner to pay the same is illegal. Learned counsel also relied on the decisions of the Apex Court in Shantilal v. State of M.P. (2008 (1) KLT 503) and Vijayan v. Sadanandan (2009 (2) KLT 618) in support of his contention that compensation does not form part of the sentence. CRRP 133/04 4 4. True, Section 53 of Indian Penal Code, while providing punishments, does not provide compensation as part of punishment. Punishments under Indian Penal Code are death, imprisonment for life, imprisonment whether rigorous or simple, forfeiture of property and fine. But, I cannot agree with the argument of the learned counsel that compensation with a default sentence does not form part of the sentence. 5. Sections 235(2) and 248(2) of Code of Criminal Procedure deal with sentencing powers of the Sessions Court and the Magistrate's Court on warrant trial. Both, under sub-section (2) of Sections 235 and 248, after convicting an accused, the Sessions Judge and the Magistrate has to award sentence after hearing the accused on the question of sentence. Section 357 of Code of Criminal Procedure provides for order to pay compensation. Under sub-section (1) of Section 357, when a court imposes a sentence of fine or a sentence of which CRRP 133/04 5 fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied as provided under clauses (a) to (d). Therefore, as provided under sub- section (1), when fine forms part of the sentence, compensation could be paid either in part or full of the fine. The compensation so awarded under Section 357(1) of Code of Criminal Procedure could only be part of the sentence. Sub-section (3) of Section 357 provides that court, 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 has been so sentenced. Therefore, when fine does not form part of the sentence, sub-section (3) of Section 357 of Code of Criminal procedure enables the court to award compensation and that compensation is also to be passed as part of the sentence. Though there was some confusion regarding CRRP 133/04 6 the legality of the default sentence, for the compensation allowed under Section 357(3) of Code of Criminal Procedure, the Honourable Supreme Court in Vijayan's case (supra) has already settled the question following its earlier decisions in Hari Singh v. Sukhbir Singh ((1998) 4 SCC 551) and Sugnathi Suresh Kumar v. Jagdeeshan ((2002) 2 SCC 420). In such circumstances, when learned Additional Sessions Judge, in a revision filed by the first respondent/complainant challenging the adequacy of the sentence awarded by the learned Chief Judicial Magistrate for the offence under Section 138 of Negotiable Instruments Act, found that the sentence award is a flea bite sentence, which is insufficient and the sentence awarded is illegal, court is competent to award compensation even if there is no alteration of the substantive sentence, as has been done in this case. I cannot agree with the submission of the learned counsel that in a case under Section 138 of Negotiable CRRP 133/04 7 Instruments Act, when an accused is convicted before awarding compensation, an enquiry is to be conducted by the Chief Judicial Magistrate on the financial capacity of the accused to pay the compensation. Revision is dismissed. 6th August, 2010 (M.Sasidharan Nambiar, Judge) tkv