Section 357 (3) Cr.P.C. 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 loss or injury by reason of the act for which
the accused person has been so sentenced. It is clear from
sub Section (3) of Section 357 Cr.P.C., that the court
can award compensation under Section 357 (3) Cr.P.C.
only if fine does not form part of the sentence. If fine
forms part of the sentence, the Court can award
compensation only under Section 357 (1) Cr.P.C. and not
under Section 357 (3) Cr.P.C. The compensation under
Section 357 (1) Cr.P.C can be awarded only out of the
fine amount and hence, the said compensation cannot
exceed the fine amount. When there is no sentence of fine,
no direction for compensation under Section 357 (1)
Cr.P.C can be issued. If the Court imposes a sentence other
than fine, the Court can award compensation under Section
357 (3) Cr.P.C., if the Court deems it necessary.
10. The Apex Court in Sivasuriyan v. Thangavelu
[(2006) 1 SCC (Cri) 532] considered the question as to
whether the Court can direct payment of compensation in
exercise of power under sub-section (3) of Section 357 in a
case where fine already forms part of a sentence and held
that the power under Section 357 (3) Cr.P.C. can be
exercised only when Court imposes sentence of which fine
does not form a part.
11. In the present case, the only sentence awarded
by the appellate court was fine. Since sentence of fine was
awarded by the appellate court, the order of the appellate
court awarding compensation under Section 357 (3)
Cr.P.C is not legal and correct and consequently, the same
cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
7TH DECEMBER 2016/
Crl.Rev.Pet.No. 507 of 2011
KOLATTERI PURUSHOTHAMAN,
Vs
P.B.MOHAN KUMAR,
The revision petitioner was found guilty concurrently
by the courts below under Section 138 of the Negotiable
Instruments Act, 1881.
2. The trial Court sentenced the revision petitioner to
simple imprisonment for three months and a compensation
of Rs. 20,000/- under Section 357 (3) Cr.P.C., with a
default clause for simple imprisonment for two months.
3. In the appeal, the sentence was modified, setting
aside the jail term awarded by the trial Court. The
appellate court sentenced the revision petitioner to a fine
of Rs. 10,000/- and a compensation of Rs. 25,000/- under
Section 357 (3) Cr.P.C. with a default clause for simple
imprisonment for three months.
4. Heard.
5. The case of the complainant is that the revision
petitioner issued Ext. P1 cheque in favour of the
complainant towards the discharge of the liability of the
revision petitioner. The said cheque was presented for
encashment. However, it was dishonoured due to
insufficiency of funds in the account of the revision
petitioner. Statutory notice was issued, which was
received by the revision petitioner. However, the revision
petitioner did not pay the cheque amount.
6. Before the trial Court, PW1 was examined and
Exts. P1 to P6 were marked for the complainant. No
evidence was adduced on the side of the revision petitioner.
7. The courts below correctly appreciated the oral
and documentary evidence adduced by the complainant
and concurrently found that the revision petitioner
committed the above said offence. No material has been
brought to the notice of this Court to indicate that the
appreciation of evidence or the concurrent finding of
conviction by the courts below was perverse or incorrect.
In the said circumstances, the concurrent finding of
conviction by the courts below does not warrant any
interference by this Court.
8. The learned counsel for the revision petitioner has
submitted that the appellate court was wrong in awarding
fine as well as compensation under Section 138 of the
N.I.Act. The records would show that the appellate court
sentenced the revision petitioner to a fine of Rs. 10,000/-
and a compensation of Rs. 25,000/- under Section 357 (3)
Cr.P.C. with a default clause for simple imprisonment for
three months.
9. In this context, it is relevant to read Section 357
Cr.P.C. which is extracted hereunder:-
"357. Order to pay compensation:- (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;
c) when any person is convicted of any
offence for having caused the death of
another person or of having abetted the
commission of such an offence, in paying
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;
(d) when 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 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 thereto.
(2) xxxx xxxx
(3) 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 loss or
injury by reason of the act for which the accused
person has been so sentenced.
(4) xxxx xxxx
(5) xxxx xxxx"
Section 357 (3) Cr.P.C. 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 loss or injury by reason of the act for which
the accused person has been so sentenced. It is clear from
sub Section (3) of Section 357 Cr.P.C., that the court
can award compensation under Section 357 (3) Cr.P.C.
only if fine does not form part of the sentence. If fine
forms part of the sentence, the Court can award
compensation only under Section 357 (1) Cr.P.C. and not
under Section 357 (3) Cr.P.C. The compensation under
Section 357 (1) Cr.P.C can be awarded only out of the
fine amount and hence, the said compensation cannot
exceed the fine amount. When there is no sentence of fine,
no direction for compensation under Section 357 (1)
Cr.P.C can be issued. If the Court imposes a sentence other
than fine, the Court can award compensation under Section
357 (3) Cr.P.C., if the Court deems it necessary.
10. The Apex Court in Sivasuriyan v. Thangavelu
[(2006) 1 SCC (Cri) 532] considered the question as to
whether the Court can direct payment of compensation in
exercise of power under sub-section (3) of Section 357 in a
case where fine already forms part of a sentence and held
that the power under Section 357 (3) Cr.P.C. can be
exercised only when Court imposes sentence of which fine
does not form a part.
11. In the present case, the only sentence awarded
by the appellate court was fine. Since sentence of fine was
awarded by the appellate court, the order of the appellate
court awarding compensation under Section 357 (3)
Cr.P.C is not legal and correct and consequently, the same
cannot be sustained.
In the result, this Revision Petition stands allowed in
part, confirming the conviction passed by the courts below
and setting aside the sentence passed by the appellate
court under Section 138 of the N.I. Act, and the matter is
remitted to the appellate court for awarding proper
sentence in accordance with law, affording reasonable
opportunity to both sides of being heard.
The parties shall appear before the appellate court on
04.01.2017.
Print Page
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 has been so sentenced. It is clear from
sub Section (3) of Section 357 Cr.P.C., that the court
can award compensation under Section 357 (3) Cr.P.C.
only if fine does not form part of the sentence. If fine
forms part of the sentence, the Court can award
compensation only under Section 357 (1) Cr.P.C. and not
under Section 357 (3) Cr.P.C. The compensation under
Section 357 (1) Cr.P.C can be awarded only out of the
fine amount and hence, the said compensation cannot
exceed the fine amount. When there is no sentence of fine,
no direction for compensation under Section 357 (1)
Cr.P.C can be issued. If the Court imposes a sentence other
than fine, the Court can award compensation under Section
357 (3) Cr.P.C., if the Court deems it necessary.
10. The Apex Court in Sivasuriyan v. Thangavelu
[(2006) 1 SCC (Cri) 532] considered the question as to
whether the Court can direct payment of compensation in
exercise of power under sub-section (3) of Section 357 in a
case where fine already forms part of a sentence and held
that the power under Section 357 (3) Cr.P.C. can be
exercised only when Court imposes sentence of which fine
does not form a part.
11. In the present case, the only sentence awarded
by the appellate court was fine. Since sentence of fine was
awarded by the appellate court, the order of the appellate
court awarding compensation under Section 357 (3)
Cr.P.C is not legal and correct and consequently, the same
cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
7TH DECEMBER 2016/
Crl.Rev.Pet.No. 507 of 2011
KOLATTERI PURUSHOTHAMAN,
Vs
P.B.MOHAN KUMAR,
The revision petitioner was found guilty concurrently
by the courts below under Section 138 of the Negotiable
Instruments Act, 1881.
2. The trial Court sentenced the revision petitioner to
simple imprisonment for three months and a compensation
of Rs. 20,000/- under Section 357 (3) Cr.P.C., with a
default clause for simple imprisonment for two months.
3. In the appeal, the sentence was modified, setting
aside the jail term awarded by the trial Court. The
appellate court sentenced the revision petitioner to a fine
of Rs. 10,000/- and a compensation of Rs. 25,000/- under
Section 357 (3) Cr.P.C. with a default clause for simple
imprisonment for three months.
4. Heard.
5. The case of the complainant is that the revision
petitioner issued Ext. P1 cheque in favour of the
complainant towards the discharge of the liability of the
revision petitioner. The said cheque was presented for
encashment. However, it was dishonoured due to
insufficiency of funds in the account of the revision
petitioner. Statutory notice was issued, which was
received by the revision petitioner. However, the revision
petitioner did not pay the cheque amount.
6. Before the trial Court, PW1 was examined and
Exts. P1 to P6 were marked for the complainant. No
evidence was adduced on the side of the revision petitioner.
7. The courts below correctly appreciated the oral
and documentary evidence adduced by the complainant
and concurrently found that the revision petitioner
committed the above said offence. No material has been
brought to the notice of this Court to indicate that the
appreciation of evidence or the concurrent finding of
conviction by the courts below was perverse or incorrect.
In the said circumstances, the concurrent finding of
conviction by the courts below does not warrant any
interference by this Court.
8. The learned counsel for the revision petitioner has
submitted that the appellate court was wrong in awarding
fine as well as compensation under Section 138 of the
N.I.Act. The records would show that the appellate court
sentenced the revision petitioner to a fine of Rs. 10,000/-
and a compensation of Rs. 25,000/- under Section 357 (3)
Cr.P.C. with a default clause for simple imprisonment for
three months.
9. In this context, it is relevant to read Section 357
Cr.P.C. which is extracted hereunder:-
"357. Order to pay compensation:- (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;
c) when any person is convicted of any
offence for having caused the death of
another person or of having abetted the
commission of such an offence, in paying
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;
(d) when 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 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 thereto.
(2) xxxx xxxx
(3) 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 loss or
injury by reason of the act for which the accused
person has been so sentenced.
(4) xxxx xxxx
(5) xxxx xxxx"
Section 357 (3) Cr.P.C. 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 loss or injury by reason of the act for which
the accused person has been so sentenced. It is clear from
sub Section (3) of Section 357 Cr.P.C., that the court
can award compensation under Section 357 (3) Cr.P.C.
only if fine does not form part of the sentence. If fine
forms part of the sentence, the Court can award
compensation only under Section 357 (1) Cr.P.C. and not
under Section 357 (3) Cr.P.C. The compensation under
Section 357 (1) Cr.P.C can be awarded only out of the
fine amount and hence, the said compensation cannot
exceed the fine amount. When there is no sentence of fine,
no direction for compensation under Section 357 (1)
Cr.P.C can be issued. If the Court imposes a sentence other
than fine, the Court can award compensation under Section
357 (3) Cr.P.C., if the Court deems it necessary.
10. The Apex Court in Sivasuriyan v. Thangavelu
[(2006) 1 SCC (Cri) 532] considered the question as to
whether the Court can direct payment of compensation in
exercise of power under sub-section (3) of Section 357 in a
case where fine already forms part of a sentence and held
that the power under Section 357 (3) Cr.P.C. can be
exercised only when Court imposes sentence of which fine
does not form a part.
11. In the present case, the only sentence awarded
by the appellate court was fine. Since sentence of fine was
awarded by the appellate court, the order of the appellate
court awarding compensation under Section 357 (3)
Cr.P.C is not legal and correct and consequently, the same
cannot be sustained.
In the result, this Revision Petition stands allowed in
part, confirming the conviction passed by the courts below
and setting aside the sentence passed by the appellate
court under Section 138 of the N.I. Act, and the matter is
remitted to the appellate court for awarding proper
sentence in accordance with law, affording reasonable
opportunity to both sides of being heard.
The parties shall appear before the appellate court on
04.01.2017.
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