Mohmad Hafiz Khan vs Anand Finance And Anr.
2003 Latest Caselaw 827 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard the parties. Rule. By consent, rule is made returnable forthwith.

2. The applicant filed this revision seeking to quash and set aside the orders passed below Exhibit Nos. 2 and 6 in Criminal Appeal No. 19 of 2003 passed by the Additional Sessions Judge, Yavatmal. The brief reasoned facts are that the present applicant was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act and by an order dated 9.5.2002, the Second Judicial Magistrate-First Class, Yavatmal convicted the applicant and sentenced him to undergo rigorous imprisonment for fifteen days and to pay compensation of Rs. 1,00,000/- to the complainant Sunil Phulchand Bharut, proprietor of "Anand Finance, Yavatmal" and in default of payment of compensation to further undergo simple imprisonment for fifteen days.

3. Aggrieved by this judgment and order, the present applicant filed an appeal being Criminal Appeal No. 19 of 2003 in the Court of Additional Sessions Judge, Yavatmal. In this appeal he preferred an application (Exh. 2) for suspension of sentence and grant of bail. On this application, on 29.5.2003 the following order came to be passed.

"Heard. The substantive sentence of 15 days is suspended pending the disposal of appeal on condition that-

(a) The appellant accused to furnish P.R.B. of Rs. 15,000/- with one solvent surety, and

(2) he shall deposit compensation amount of Rs. one lac within 3 days."

4. The applicant then preferred an application (Exh. 6) on the same day. The application was styled as, "Application for suspension of compensation amount along with suspension of sentence till decision of appeal". The applicant placed on record that there were good grounds in criminal appeal to set aside the order passed by the Trial Court and that the appellant would suffer irreparable loss if compensation amount was not suspended. As far as the prayer in Exh. 6 was concerned, the only prayer to be found therein was, "Prayed accordingly". On 29.5.2003, the Additional Sessions Judge, Yavatmal issued a notice to the respondents, who gave their say and opposed the application on the ground that Court had already passed the order at Exh. 2.

5. By the impugned order dated 11.7.2003, for the reasons mentioned therein, the Additional Sessions Judge, Yavatmal rejected the application (Exh. 6) of the applicant

6. It was contended on behalf of the applicant that under Section 29 of the Code of Criminal Procedure, 1973, the Magistrate had power to impose fine only to the tune of Rs. 5,000/-. In the instant case, however instead of fine, the Magistrate had preferred to award compensation under Section 357(3) of the Criminal Procedure Code. It was contended that once the compensation was levied, there could be no sentence of imprisonment in default of payment of compensation and what could not be achieved directly could not be achieved indirectly by directing deposit of compensation as a precondition for grant of bail. The learned Counsel for the applicant relied upon a judgment of the Nagpur High Court in the case of Ramdularey v. Manohar, AIR 1930 Nagpur 149. In that case the applicant before the High Court was convicted under Section 22 of the Cattle Trespass Act and was ordered to pay Rs. 140-13-0 as compensation. He filed an appeal before the District Magistrate, Bilaspur, who reduced a component of the compensation from Rs. 70-6-6 to Rs. 20/- and ordered that, "in default of these payments, the accused shall suffer simple imprisonment for one month". The applicant then preferred a criminal revision in the High Court at Nagpur and the only ground pressed in the High Court was that the lower Appellate Court erred in allowing the appeal under Section 22, Cattle Trespass Act and awarding compensation of Rs. 20 to the complainant in the absence of any loss alleged or proved. The Court accepted the contention of the revision applicant on the footing that no specific claim had been made in the complaint and the complainant not having claimed any compensation, was not entitled to any relief. The High Court further concluded that the word 'fine' used in the judgment of the lower Appellate Court was wrong as no fine could be imposed under Section 22, Cattle Trespass Act and the Magistrate could only award compensation for illegal seizure of cattle. The sentence of imprisonment in default of payment of compensation was held to be illegal because the Magistrate was not competent to pass a sentence of imprisonment under Section 22, Cattle Trespass Act.

7. In my view, the reliance placed on this judgment, appears to be improper as the ratio of the said case was laid down in view of the provisions as contained in Section 22 of the Cattle Trespass Act which do not empower the Magistrate to impose sentence of imprisonment under the said Act. This is not the case under Section 138 of the Negotiable Instruments Act which does empower the Court to impose a sentence of imprisonment.

8. The learned Advocate for the applicant then took me through Section 357 of the Code

of Criminal Procedure which deals with passing of the order to pay compensation. He brought to my notice that the said section does not specifically provide for levy of any imprisonment in default of payment of any compensation. That in view of the provisions as contained under Section 431 of the Code of Criminal Procedure, any money payable by virtue of any order is recoverable as if it were a fine. Section 421 of the said Code deals with the modes of recovery of fine and it can be seen from the said section that fine can be recovered by issuing warrant for levy of fine amount by attachment and sale of any movable property belonging to the offender or by issuing warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property of the defaulter. Further, it appears from the reading of Section 64 of the Penal Code that power to impose an additional sentence of imprisonment in default of payment of fine amount is specifically provided for and there is no provision under the Penal Code or any other law conferring similar power in a case of non payment of compensation. The first limb of the argument made on behalf of the applicant that compensation, if levied should be recovered only by following the procedure laid down in accordance with the Section 421 of the Code of Criminal Procedure and that there could be no imprisonment in default of payment of compensation, appears to have substance.

9. However, the second limb of the argument to the effect that what cannot be done directly cannot be done indirectly has no substance. A requirement of payment of compensation to the complainant in a final judgment and order after a trial cannot be equated with an interim order of deposit of money in the Court by way of security and as a condition of grant of discretionary relief like suspension of sentence. I have no doubt that even assuming there could be no imprisonment in default of payment of compensation, yet in an appeal or revision, the Court can direct the suspension of sentence subject to a condition of default. If any authority is required on this point, it can be found in the judgment of the Apex Court in the case of Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. and Anr., II (2001) SLT 180=Cases of Dishonour of Cheques (SC) 47, passed in Criminal Appeal No. 86 of 2001, in which the Apex Court observed as under :

"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 atleast a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the 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 lacs as a condition to suspend the sentence. When considering the total amount of fine imposed by the Trial Court (twenty lacs 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.

(Emphasis provied)

10. Advocate for the applicant relying upon the judgment of the Apex Court referred to supra lastly contended that in that case the Apex Court had upheld the order directing suspension of sentence conditionally on depositing 25% of the fine amount. He further contended that the applicant was willing to deposit 25% of the amount of compensation, i.e an amount of Rs. 25,000/- in the Court. This argument of the applicant seems to be reasonable.

11. Hence, it is directed that the condition number (2) which stipulates the applicant to deposit compensation amount of rupees one lac within 3 days is modified and the applicant will deposit an amount of Rupees 25,000/- (Rupees twenty-five thousand only) within two weeks from the date of this order in the lower appellate Court and on his making such deposit and complying with the other conditions prescribed in the order dated 9.5.2003, the substantive sentence of 15 days would stand suspended pending the disposal of Criminal Appeal No. 19 of 2003.

Rule is made partly absolute in the aforesaid terms.