BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/02/2011
CORAM
THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM
Crl.R.C.(MD)No.958 of 2010
and
M.P.(MD)No.1 of 2010
C.Murugesan .. Petitioner/Appellant/Accused
Vs.
1. Prabakaran .. 1st Respondent/1st Respondent/
Complainant
2. State of Tamil Nadu
Rep.By Public Prosecutor,
Nagercoil. .. 2nd Respondent/2nd Respondent/
Not a Party
Prayer
Criminal Revision Petition filed under Section 397 r/w. 401 of Cr.P.C.,
against the judgment dated 18.11.2010 passed in Crl.M.P.No.3561 of 2010 in
C.A.No.76 of 2010 on the file of the Sessions Judge, Kanyakumari Division at
Nagercoil confirming the Judgment dated 04.09.2010 passed in C.C.No.289 of 2002
on the file of the Judicial Magistrate No.I, Nagercoil.
!For Petitioner ... Mr.N.Subramanian
^For Respondent-1 ... No Appearance
For Respondent-2 ... Mr.S.Muthu Venkatesan
Government Advocate (Crl.side)
:ORDER
The Revision petitioner herein was convicted for an offence under Section
138 of the Negotiable Instruments Act, by the learned Judicial Magistrate No.I,
Nagercoil, and was sentenced to undergo six months simple imprisonment and also
was directed to pay a compensation for a sum of Rs.1,50,000/- (cheque amount),
within a period of four months from the date of judgment.
2.Challenging the said conviction and sentence, the revision petitioner
preferred an appeal before the learned Sessions Judge, Kanyakumari in C.A.No.76
of 2010 and also preferred a Sub Application in Crl.M.P.No.3561 of 2010 seeking
to suspend the sentence till the disposal of the appeal. The learned Sessions
Judge, while ordering the said application suspending the sentence of
imprisonment on the petitioner imposed a condition that the petitioner should
deposit half of the compensation amount of Rs.75,000/- before the trial
Court. Challenging the condition imposed on the petitioner that he should
deposit the compensation amount of Rs.75,000/-, the petitioner has preferred
this Criminal Revision.
3.Heard the learned counsel for the petitioner and the learned Government
Advocate (Crl.sisde) appearing for the State. The learned counsel for the first
respondent is called absent.
4.The learned counsel for the petitioner submitted that the petitioner has
got a fair chance in succeeding the appeal and the condition imposed on him is
onerous and though the petitioner was directed to pay the compensation amount,
no sentence of imprisonment in default of payment has been imposed by the trial
Court and as such, the learned Sessions Judge ought not to have imposed a
condition to deposit the compensation amount and the petitioner instead of being
given an opportunity to contest the appeal is directed to pay the amount , which
would cause prejudice to him.
5.This Court considered the submissions of the learned counsel for the
petitioner as well as the learned Government Advocate (crl.side) and perused the
records including the memorandum of grounds of criminal appeal filed before the
Sessions Court.
6.Of course, at this stage this Court does not want to go into the merits
of the case, but at the same time feels that the Sessions Court having suspended
the sentence of imprisonment imposed on the petitioner need not impose a
condition on the petitioner to deposit 50% of the compensation amount of
Rs.75,000/-. A perusal of Section 357 of Cr.P.C., reads as follows:-
“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) if 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 has
elapsed, or, if an appeal be presented, before the decision of the appeal.
(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) An order under this section may also be made by an Appellate Court or
by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit
relating to the same matter, the Court shall take into any sum paid or recovered
as compensation under this Section.”
7.On perusal of the above Section 357(2) indicates that even if the
compensation amount is deposited, the payment cannot be made to the victim
before the decision of the appeal. In such a case, this Court is of the view
that it is not always necessary to insist for the payment of compensation amount
as condition precedent for passing an order of suspension of sentence. The
order of directing payment of compensation amount by the Trial Court is also a
subject matter of appeal being right of the accused. The position may be
different it is a case of remission.
8.For the above said reasons, the condition imposed by the learned
Sessions Judge, Kanyakumari District, Nagercoil in Crl.M.P.No.3561 of 2010
directing the petitioner to deposit half of the compensation amount of
Rs.75,000/- before the trial Court is deleted.
9.The Criminal Revision Petition is allowed accordingly. Consequently,
connected miscellaneous petition is closed.
MPK
To
1.The Sessions Judge,
Kanyakumari Division at Nagercoil
2.The Judicial Magistrate No.I,
Nagercoil.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.