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CR.RA/723/2009 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 723 of
2009
=========================================================
SIDDHARTH
RAMESHCHANDRA PUROHIT - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR.MRUDUL
M BAROT for
Applicant(s) : 1,
MR KARTIK PANDYA, ASST. PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR ASIT B JOSHI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 06/10/2010
ORAL
ORDER
1.0 Petitioner
is the original complainant. He has challenged an order dated
11.09.2008, passed by the learned Judicial Magistrate, First Class,
Junagadh, in Criminal Case No. 2051 of 2005, insofar as the same is
adverse to him. He has also challenged an order dated 08.07.2009,
passed by the learned Additional Sessions Judge, Junagadh, in
Criminal Appeal No.08 of 2009, confirming the judgment of the learned
Magistrate.
2.0 Brief
facts of the case are as follows:
2.1 Petitioner
had instituted a cheque bouncing complaint against respondent No.2
herein, alleging that a cheque of Rs.1,00,000/-(One Lac) given by the
accused on 26.04.2005, was dishonoured upon
presentation to the Bank. The accused, therefore, committed the
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881. The learned Magistrate tried the case and convicted the
accused for the said offence and imposed punishment of simple
imprisonment of 9 months. He also imposed fine of Rs.5,000/- and
sentence of 2 months further simple imprisonment, in case of default
in payment of such fine.
2.2 The
petitioner, being aggrieved by non-awarding of compensation, in terms
of sub-Section(3) of Section 357 of the Code of Criminal Procedure,
filed appeal before the Sessions Court. The Sessions Court, by the
impugned judgment, dismissed the said appeal, and hence, this
revision application.
3.0 I
have heard learned Advocates appearing for the parties. I was, prima
facie, of
the opinion that the Courts below committed an error in not awarding
compensation to the petitioner, in case of dishonour of cheque. In a
recent decision in the case of K.A.
Abbas H.S.A. Vs. Sabu Joseph and Another
reported
in (2010) 6 SCC 230, the Apex Court had an occasion to examine the
question of awarding default sentence, in case
of failure to pay compensation, as directed by the criminal Court, as
provided under sub-Section (3) of Section 357 of the Code of Criminal
Procedure. In that case, the Apex Court, while holding that
imposition of default sentence for non-payment of compensation would
be permissible and legal, observed as under:
18.
In
this case, we are not concerned with sub-Section(1). We are
concerned only with sub-Section (3). It is an important provision but
the 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 the victim who has suffered by the action of the accused. It may
be noted that this power of the courts to award compensation is not
ancillary to other sentences but it is in addition thereto. This
power was intended to do something to assure 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 as 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 the courts to
exercise this power liberally so as to meet the ends of justice in a
better way.
The
Apex Court also referred to some other decisions on the issue.
4.0 Under
the circumstances and particularly, considering that the offence
involved is the one, punishable under Section 138 of the Negotiable
Instruments Act, 1881, I was of the opinion that the learned
Magistrate ought to have awarded appropriate compensation to the
complainant, upon recording conviction of the accused.
5.0 The
learned Counsel for the accused, respondent No.2 herein, however,
pointed out that upon conclusion of the trial, the trial Court
imposed fine, and therefore, it was not open for the trial Court to
also award compensation. In this regard, reliance is placed on a
decision of the Apex Court in the case of Sivasuriyan
Vs. Thangavelu
reported in (2006) 1 SCC(Cri) 532.
6.0 This
difficulty, however, could have been resolved by rescinding the order
of payment of fine and instead to award suitable compensation, as
found reasonable in the facts of the case. I see no impediment in
adopting such a course. However, before the order could be passed, it
was noticed that the accused had already undergone, not only the
entire sentence but had also served the
default sentence, as well.
7.0 Under
the circumstances, the order of payment of fine cannot be substituted
with an order for payment of compensation. Especially, when the
accused has already served the entire sentence, including the default
sentence for non-payment of fine. Thus, the impugned order being
exhausted,it is, now, not possible to rescind the order of payment of
fine, with the direction to pay compensation.
8.0 In the
result, this petition fails and is dismissed.
(AKIL
KURESHI, J.)
Umesh/
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