H.S.A. Vs. Sabu Joseph & ANR.  INSC 389 (11 May 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1052
OF 2010 (Arising out of SLP (Crl.) No. 334 of 2008) K.A. Abbas H.S.A.
..........Appellant Versus Sabu Joseph & Anr. ........Respondents WITH CRIMINAL
APPEAL NO. 1053 OF 2010 (Arising out of SLP (Crl) No. 4099 of 2008) Sabu Joseph
..........Appellant Versus K.A. Abbas & Anr. ........Respondents
granted in both the special leave petitions.
two appeals are directed against the judgment and order of the High Court of
Kerala in Crl. Rev. Petition No.1387 of 2006 dated 03.10.2007.
Since parties are common and the legal issues are identical, they are heard
together and disposed of by this common order.
factual matrix in brief is as under:- The facts in criminal revision petition
No.1387 of 2006 may be noticed for the purpose of disposal of the appeals. The
appellant (accused) and the respondent (complainant) are employed as High
School assistants in SSHSS school in Moorkanand. The respondent has filed a
complaint against the appellant before the learned Magistrate for an offence
under Section 138 of the Negotiable Instruments Act (the `Act' for short). The
complainant's case is that the appellant, who was due in a sum of Rs.5,00,000/-,
issued a cheque dated 16.06.2003 in respect of that liability, and when the
cheque was presented for encashment, the same was returned with an endorsement
of "insufficiency of funds."
complainant, through his Advocate, had issued notice to the appellant demanding
the payment and that in spite of the service of notice, the appellant failed to
pay the amount covered by the cheque and thus has committed an offence under
Section 138 2 of the Act and, accordingly, has approached the learned Magistrate
for appropriate reliefs.
learned Magistrate after taking cognizance of the offence and after recording
the evidence of the parties and after analyzing the same, has found the accused
guilty of the offence punishable under Section 138 of the Act and sentenced to
simple imprisonment for one year. In addition to that he had directed to pay a
compensation of Rs. 5 lakhs to the complainant under Section 357(3) of the
Cr.PC, and in default, to undergo simple imprisonment for a further period of
accused filed appeal before the Sessions Court, Manjeri being Criminal Appeal
No. 59 of 2004. The Sessions Court while entertaining the appeal had directed
the petitioner to deposit Rs. one lakh within one month being a part of the
compensation amount. The appellant has complied with that order by depositing
the amount as directed before the Judicial 1st Class Magistrate, Manjeri.
Eventually, the Sessions Judge by his order dated 3 21.03.2006 confirmed the
judgment of conviction and sentence passed by learned Magistrate.
accused preferred revision petition being Criminal Revision Petition No. 1387
of 2006 before the High Court of Kerala at Ernakulam. The High Court passed an
interim order directing the petitioner to deposit an amount of Rs. 1 lakh
before the Judicial Magistrate and, accordingly, the said amount was also
deposited. The High Court while disposing of the Revision Petition has observed
that the courts below had appreciated the facts correctly and there is no
error, illegality or impropriety in the finding recorded by the courts below to
set aside the conviction and sentence. The High court has further stated that
the only question which requires to be answered is, whether a proper sentence
has been imposed on the accused by the courts below.
after taking into consideration the peculiar facts and circumstances of the
case has modified the sentence imposed on the accused to the extent, that, if
the petitioner pays the compensation amount of Rs. 4 lakhs (keeping in mind that
the petitioner had deposited an amount of Rs. 1 lakh before the trial court
towards the compensation amount) within a period of five 4 months, then he
needs to undergo imprisonment only till the rising of the court and if the
petitioner commits default in making the payment aforesaid, he shall undergo
simple imprisonment for three months by way of default sentence.
aggrieved, the accused is before this court by way of Criminal Appeal arising
out of SLP (Crl.) No. 334 of 2008. The main contention of the accused is that
this court in Criminal Appeal No. 1013 of 2007 has held, that, while exercising
jurisdiction under Section 357(3) of the Cr.PC, no direction can be issued that
in default of payment of compensation, the accused shall suffer simple
imprisonment. In effect the Supreme Court has confirmed the judgment passed in
the case of Radhakrishna Nair v. Padmanabhan [(2000) 2 KLT 349], wherein the
Kerala High Court had given a similar finding. The accused also contends, that,
there is a factual error in the judgment of the High court to the effect that
the accused had already deposited Rs. 2 lakhs towards paying the compensation
amount pursuant to interim orders of the Sessions Court and the High Court
respectively, instead the High Court has observed that only Rs. 1 lakh has been
5 10) The
complainant being aggrieved by the sentence imposed on the accused has filed
SLP (Crl) No. 4099 of 2008. The contention of the complainant is that, the
sentence imposed is very minimal and will defeat the very purpose of Section
138 of N.I Act and if for any reason the default sentence is deleted then there
is no chance of the accused paying the compensation . In this regard, the
complainant relies on the observation of this court in the case of Suganthi
Suresh Kumar v. Jagdeeshan, [(2002) 2 SCC 420].
learned counsel for both sides. The learned counsel for the accused submits,
that, the default sentence imposed by the learned Judge of the High Court is
against the dicta of this Court in the case of ETTAPPADAN AHAMMED KUTTY @
KUNHAPPU VS. E.P. ABDULLAKEYA @ KUNHI BAPPU AND ANOTHER (Criminal Appeal No.
1031 of 2007). Per contra, the learned counsel for the respondent ably
justifies the impugned judgment. The learned counsel also relies on the
observations made by this Court in the case of Suganthi Suresh 6 12) The main
question that requires to be considered and decided is, whether in default of
payment of compensation ordered under Section 357 (3) of the Cr.P.C., a default
sentence can be imposed ? 13) Let us now look at the relevant provisions and
the decision of this court on which reliance is placed by learned counsel.
Section 357 of Cr.PC reads:- "(1) When a court imposes a sentence of fine
or a sentence (including a sentence of death) of which fine forms a part, the
court may, when passing judgment order the whole or any part of the fine
recovered to be applied- (a) In defraying the expenses properly incurred in the
prosecution, (b) In the payment to any person of compensation for any loss or
injury caused by the offence, when compensation is, in the opinion, of the
court, recoverable by such person in a Civil Court;
any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of shelf all offence, in paying in,
compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of
1855) entitled to recover damages from the person sentenced for the loss
resulting to them from such death;
any person is convicted of any offence which includes theft, criminal,
misappropriation, criminal breach of trust or cheating, or of having
dishonestly received or retained, or of having 7 voluntarily assisted in
disposing of stolen property knowing or having reason to believe the same to be
stolen in compensating any bona fide purchaser of such property for the loss of
the same if such property is restored to the possession of the person entitled
the fine is imposed in a case, which is subject to appeal, no such payment
shall be made before the period allowed for presenting the appeal his elapsed,
or if an, appeal be presented, before the decision of the appeal.
a court imposes a sentence, of which fine does not form a part, the court may,
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 his been so
(4) An order
under this section may also be made by all Appellate Court or by the High Court
or Court of Session when exercising its powers of revision.
the time of awarding compensation in any subsequent civil suit relating to the
same matter, the court shall take into account any sum paid or recovered as
compensation under this section."
Essentially the section empowers the courts, not to just impose a fine alone or
fine along with the sentence of imprisonment, but also when the situation
arises, direct the accused to pay compensation to the person who has suffered
any loss or injury by reason of the act for which the accused person has been
8 16) The
above view we have taken is supported by the decisions of this Court, to which
we presently refer.
the case of Sarwan Singh and ors. v. State of Punjab (AIR 1978 SC 1525), this
court has noticed the object and genesis of the section.
The law which enables the Court to direct compensation to be paid to the
dependants is found in Section 357 of the CrPC (Act 2 of 1974). The
corresponding provision in the 1898 Code was Section 545. Section 545 of the
CrPC (Act 5 of 1898) was amended by Act 18 of 1923 and by Act 26 of 1955. The
amendment which is relevant for the purpose of our discussion is 545(1)(bb)
which, for the first time was inserted by Act 26 of 1955. By this amendment the
court is enabled to direct the accused, who caused the death of another person,
to pay compensation to the persons who are, under the Fatal Accidents Act,
entitled to recover damages from the persons sentenced, for the loss resulting
to them from such death. In introducing the amendment, the Joint Select
Committee stated "when death has been caused to a person, it is but proper
that his heirs and dependants should be compensated, in suitable cases, for the
loss resulting to them from such death, by the person who was responsible for
it. The Committee proceeded to state that though Section 545 of the Code as
amended in 1923 was intended to cover such cases, the intention was not however
very clearly brought out and therefore in order to focus the attention of the
courts on this aspect of the question, the Committee have amended Section 545
and it has been made clear that a fine may form a part of any sentence
including a sentence of death and it has also been provided that the persons
who are entitled under the Fatal Accidents Act, 1855,
to recover 9 damages from the person sentenced may be compensated out of the fine
imposed. It also expressed its full agreement with the suggestion that at the
time of awarding judgment in a case where death has resulted from homicide, the
court should award compensation to the heirs of the deceased. The Committee
felt that this will result in settling the claim once for all by doing away
with the need for a further claim to a civil Court, and avoid needless worry
and expense to both sides. The Committee further agreed that in cases where the
death is the result of negligence of the offender, appropriate compensation
should be awarded to the heirs. By the introduction of Clause (bb) to Section
545(1), the intention of the legislature was made clear that, in suitable
cases, the heirs and dependents should be compensated for the loss that
resulted to them from the death, from a person who was responsible for it. The
view was also expressed that the court should award compensation to the heir of
the deceased so that their claims would be settled finally. This object is
sought to be given effect to by Section 357 of the new Code (Act 2 of 1973).
Section 357(3) provides that when a court imposes a sentence, of which fine
does not form a part, the Court may, 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 Joss or injury by reason of the act
for which the accused person has been so sentenced. The object of the section
therefore, is to provide compensation payable to the persons who are entitled
to recover damages from the person sentenced even though fine does not form
part of the sentence. Though Section 545 of 1898 Code enabled the court only to
pay compensation out of the fine that would be imposed under the law, by
Section 357(3) when a Court imposes a sentence, of which fine does not form a
part, the Court may direct the accused to pay compensation. In awarding
compensation it is necessary for the court to decide whether the case is a fit
one in which compensation has to be awarded. If it is found that compensation
should be 1 paid, then the capacity of the accused to pay a compensation has to
be determined. In directing compensation, the object is to collect the fine and
pay it to the person who has suffered the loss. The purpose will not be served
if the accused is not able to pay the fine or compensation for, imposing a
default sentence for non- payment of fine would not achieve the object. If the
accused is in a position to pay the compensation to the injured or his
dependents to which they are entitled to, there could be no reason for the
Court not directing such compensation. When a person, who caused injury due to
negligence or is made vicariously liable is bound to pay compensation it is
only appropriate to direct payment by the accused who is guilty of causing an
injury with the necessary Mens Rea to pay compensation for the person who has
Balraj v. State of UP (AIR 1995 SC 1935), this court has held, that, Section
357(3) Cr. P.C. provides for ordering of payment by way of compensation to the
victim by the accused. It is an important provision and it must also be noted
that power to award compensation is not ancillary to other sentences but it is
in addition thereto.
Hari Kishan v. Sukhbir Singh and ors. (AIR 1988 SC 2127), this court has
observed that, 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 1 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
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 a 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.
20) In Dilip
S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr., [(2007) 6 SCC 528], this
court differentiated between fine and 1 compensation, and while doing so, has
stated that the distinction between Sub-Sections (1) and (3) of Section 357 is
apparent. Sub- section (1) provides for application of an amount of fine while
imposing a sentence of which fine forms a part; whereas Sub- Section (3) calls
for a situation where a Court imposes a sentence of which fine does not form a
part of the sentence.
further observed:- "19. Compensation is awarded towards sufferance of any
loss or injury by reason of an act for which an accused person is sentenced.
Although it provides for a criminal liability, the amount which has been
awarded as compensation is considered to be recourse of the victim in the same
manner which may be granted in a civil suit."
the court summed up:- "22. We must, however, observe that there exists a
distinction between fine and compensation, although, in a way it seeks to
achieve the same purpose. An amount of compensation can be directed to be
recovered as a 'fine' but the legal fiction raised in relation to recovery of
fine only, it is in that sense `fine' stands on a higher footing than
compensation awarded by the Court."
Moving over to the question, whether a default sentence can be imposed on
default of payment of compensation, this court in the case of Hari Singh v.
Sukhbir Singh and in Balraj v. State of U.P, 1 has held that it was open to all
courts in India to impose a sentence on default of payment of compensation
under sub-section (3) of Section 357. In Hari Singh v. Sukhbir Singh (supra),
this court has noticed certain factors which requires to be taken into
consideration while passing an order under the section:- "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 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.
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 Court may enforce the order by imposing sentence in default."
position also finds support in the case of R v. Oliver John Huish;  7 Cr.
App. R.(S.) 272. The Lord Justice Croom - Johnson speaking for the Bench has
compensation orders may possibly be made the most careful examination is
required. Documents should be obtained and evidence either on affidavit or
orally should be given. The proceedings should, if necessary, be adjourned, in
order to arrive at the true state of the defendant's affairs.
often a compensation order is made and a very light sentence of imprisonment is
imposed, because the court 1 recognizes that if the defendant is to have an
opportunity of paying the compensation he must be enabled to earn the money
with which to do so. The result is therefore an extremely light sentence of
imprisonment. If the compensation order turns out to be virtually worthless,
the defendant has got off with a very light sentence of imprisonment as well as
no order of compensation. In other words, generally speaking, he has got off
law laid down in Hari Singh v. Sukhbir Singh (supra) was reiterated by this
court in the case of Suganthi Suresh Kumar v.
[(2002) 2 SCC 420]. The court observed:- "5. In the said decision this
Court reminded all concerned that it is well to remember the emphasis laid on
the need for making liberal use of Section 357(3) of the Code. This was
observed by reference to a decision Singh. In the said decision this Court held
as follows:- "The quantum of compensation may be determined by taking into
account the nature of crime, the justness of the claim by the victim and the
ability of accused to pay.
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 court may enforce the order by
imposing sentence in default."
supplied) "10. That apart, Section 431 of the Code has only prescribed
that any money (other than fine) payable by 1 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. 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."
further held:- "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"
open to all courts in India to follow the said course.
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) KLT 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."
order to set at rest the divergent opinion expressed in Kunhappu's case
(supra), this Court in the case of Vijayan v. Sadanandan K. and Anr., [(2009) 6
SCC 652], after noticing the provision of Section 421 and 431 of Cr.PC, which
dealt with mode of recovery of fine and Section 64 of IPC, which empowered the
1 courts to provide for a sentence of imprisonment on default of payment of
fine, the Court stated:
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, 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."
further held:- "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 the same, the very object of Sub-section (3) of Section 357 would be
frustrated and the relief contemplated therein would be rendered somewhat
Shantilal v. State of M.P., [(2007) 11 SCC 243], it is stated, that, the
sentence of imprisonment for default in payment of a fine 1 or compensation is
different from a normal sentence of imprisonment. The court also delved into
the factors to be taken into consideration while passing an order under Section
357(3) of the Cr.PC. This court stated:- "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 term of imprisonment ordered in default of payment of
fine stands on a different footing.
is required to undergo imprisonment either because he is unable to pay the
amount of fine or refuses to pay such amount. He, therefore, can always avoid
to undergo imprisonment in default of payment of fine by paying such amount. It
is, therefore, not only the power, but the duty of the court to keep in view
the nature of offence, circumstances under which it was committed, the position
of the offender and other relevant considerations before ordering the offender
to suffer imprisonment in default of payment of fine."
Kuldip Kaur v. Surinder Singh and anr. (AIR 1989 SC 232), in the context of
Section 125 Cr.PC observed that sentencing a person to jail is sometimes a mode
of enforcement. In this regard the court stated:- "6. A distinction has to
be drawn between a mode of enforcing recovery on the one hand and effecting
actual recovery of the amount of monthly allowance which has fallen in arrears
on the other. Sentencing a person to jail 1 is a 'mode of enforcement'. It is
not a 'mode of satisfaction' of the liability. The liability can be satisfied
only by making actual payment of the arrears. The whole purpose of sending to
jail is to oblige a person liable to pay the monthly allowance who refuses to
comply with the order without sufficient cause, to obey the order and to make
the payment. The purpose of sending him to jail is not to wipe out the
liability which he has refused to discharge. Be it also realised that a person
ordered to pay monthly allowance can be sent to jail only if he fails to pay
monthly allowance 'without sufficient cause' to comply with the order. It would
indeed be strange to hold that a person who 'without reasonable cause' refuses
to comply with the order of the Court to maintain his neglected wife or child
would be absolved of his liability merely because he prefers to go to jail. A
sentence of jail is no substitute for the recovery of the amount of monthly
allowance which has fallen in arrears."
the above line of cases, it becomes very clear, that, a sentence of
imprisonment can be granted for default in payment of compensation awarded
under Section 357(3) of Cr.PC. The whole purpose of the provision is to
accommodate the interests of the victims in the criminal justice system.
Sometimes the situation becomes such that there is no purpose is served by
keeping a person behind bars. Instead directing the accused to pay an amount of
compensation to the victim or affected party can ensure delivery of total
justice. Therefore, this grant of compensation is sometimes in lieu of sending
a person behind bars or in addition to a very light 1 sentence of imprisonment.
Hence on default of payment of this compensation, there must be a just
recourse. Not imposing a sentence of imprisonment would mean allowing the
accused to get away without paying the compensation and imposing another fine
would be impractical as it would mean imposing a fine upon another fine and
therefore would not ensure proper enforcement of the order of compensation.
While passing an order under Section 357(3), it is imperative for the courts to
look at the ability and the capacity of the accused to pay the same amount as
has been laid down by the cases above, otherwise the very purpose of granting
an order of compensation would stand defeated.
421 of Cr.PC reads:- "421. Warrant for levy of fine.
an offender has been sentenced to pay a the court passing the sentence make
action for the recovery of the fine in either or- both of the following ways,
that is to say, it may - (a) Issue a warrant for the levy of the amount by
attachment and sale of any movable property belonging to the offender (b) Issue
a 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 defaulters;
that, if the sentence directs that in default of payment of the fine, the
offender shall be imprisoned, 2 and if such offender has undergone the whole of
such imprisonment in default, no court shall issue such warrant unless, for
special reasons to be recorded in writing, it considers it necessary so to do,
or unless it has made an order for the payment of expenses or compensation out
of the fine under section 357.
State Government may make rules regulating the manner in which warrants under
clause (a) of sub-section (1) are to be executed, and for the summary
determination of any claims made by any person other than the offender in
respect of any property attached in execution of such warrant.
the court issues a warrant to the Collector under clause (b) of sub-section
(1), the Collector shall realize the amount in accordance with the law relating
to recovery of arrears of land revenue, as if such warrant were a certificate
issued under such law:
that no such warrant shall be executed by the arrest or detention in prison of
431 of Cr.PC reads:- "431. Money ordered to be paid recoverable as a fine.
(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.
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 clearly provides that an order of compensation under Section 357
(3) will be recoverable in the same way as if it were a fine. Section 421
further provides the mode of recovery of a fine and the section clearly
provides that a person can be imprisoned for non-payment of fine. Therefore,
going by the provisions of the code, the intention of the legislature is
clearly to ensure that mode of recovery of a fine and compensation is on the
same footing. In light of the aforesaid reasoning, the contention of the
accused that there can be no sentence of imprisonment for default in payment of
compensation under Section 357 (3) should fail.
similar position is also prevalent in other countries. In the United Kingdom,
Section 82 (3) of Magistrates' Courts Act, 1980 allows for a sentence of
imprisonment for default in payment of a fine or any financial order. The
Section reads:- "Where on the occasion of the offender's conviction a
magistrates' court does not issue a warrant of commitment for a default in
paying any such sum as aforesaid or fix a term of imprisonment under the said
Section 77(2) which is to be served by him in the event of any such default, it
shall not thereafter issue a warrant of commitment for any such default or for
want of sufficient distress to satisfy such a sum unless:- 2 (a) he is already
serving a sentence of custody for life, or a term of imprisonment, detention in
a young offender institution, or detention under Section 9 of the Criminal
Justice Act, 1982; or (b) the court has since the conviction inquired into his
means in his presence on at least one occasion."
Australia, under Section 4 of the Sentencing Act, 1997 the definition of
"fine" includes a compensation order. Procedure for enforcement of
fines is provided for in Section 47(7) of the Act and provides for a sentence
of imprisonment or default in payment of fine.
Learned Counsel for the accused has placed reliance on the decision of this
court in the case of Ettappadan Ahammedakutty v. E.P Abdullakeya (Criminal
Appeal no. 1013 of 2007), which reiterated the position taken by the Kerala
High Court in a case reported in 2000 (2) KLT 349; wherein it was held that no
sentence of imprisonment can be passed on default of paying compensation
awarded under Section 357(3). But in light of several decisions reiterating the
opposite stand, this case needs to be viewed in isolation and cannot be taken
to be against the established position preferred by the Supreme Court on this
issue over a period of two decades.
2 33) The
complainant in the Civil Appeal arising out of S.L.P.(Crl.) No.4099 of 2008 has
contended that the sentence imposed for default in payment of the compensation
amount is very minimal and, therefore, the sentence imposed by the High Court
requires to be enhanced. In our considered view, looking into the facts and
circumstances of the case and the nature of the offence, we find no good reason
to interfere with the quantum of sentence imposed.
contention of the accused as regards a factual error made by the High Court,
wherein the High Court stated that the accused had deposited Rs. 1 lakh towards
the compensation amount requires to be accepted. It is to be noted that the
accused has already deposited Rs.2 lakhs towards the compensation amount of Rs.
5 lakhs, before the Judicial Magistrate in pursuance of orders passed by the
Sessions Court and the High Court. Therefore, the appeal of the accused, i.e.
Criminal Appeal arising out of Special Leave Petition (Crl.) No.334 of 2008 is
allowed to the extent that he needs to pay a further amount of Rs. 3 lakhs
towards the 2 compensation amount of Rs. 5 lakhs. The remaining part of the
sentence passed by the High Court requires to be confirmed.
the result, the conviction and sentence passed against the accused in Criminal
Appeal arising out of S.L.P.(Crl.) No.334 of 2008 are confirmed with the
modification, as observed in the earlier paragraph. Criminal Appeal arising out
of S.L.P.(Crl.) No.334 of 2008 is, accordingly, partly allowed. Since, we are
of the opinion that modification of the sentence is not warranted in the facts
and circumstances of the case, Criminal Appeal arising out of Special Leave
Petition (Crl.) No. 4099 of 2008 filed by the complainant is dismissed.
........................... ............J. [ P. SATHASIVAM ]