Deciding Authority: The Supreme Court of India
Name of the Judges: K.T. THOMAS & S.N. PHUKAN
Date of Judgement: 15/01/2002
Facts:
Appellant in this case is the complainant before the court of 9th Metropolitan Magistrate, Saidapet, Chennai. The offence pitted against the respondent was under Section 138 of the Negotiable Instruments Act. In fact there were two complaints arising out of two sets of cheques which were dishonoured by the drawee bank. The trial Magistrate after holding the respondent guilty of the offence convicted him of the aforesaid offence but sentenced him only to undergo imprisonment till rising of the court and pay a fine of Rs. 5000 in both cases. Apparently the respondent was happy and, therefore, he did not prefer any appeal. But the complainant/appellant was unhappy and, therefore, he preferred two revisions before the High Court on the premise that the sentence was grossly inadequate. He contended before the High Court that the trial Magistrate should at least have invoked the provision under Section 357 (3) of the Code of Criminal Procedure (for short the Code).
Judgement:
Mr. KV Viswanathan, learned counsel for the petitioner invited the Court’s attention to the following observations made by this Court in K. Bhaskaran v. Sankarna Vaidhyan Balan, [1999] 7 SCC 510 :”If a Judicial Magistrate of the First Class were to order compensation to the paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. But the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.PC. The Supreme Court has emphasised the need for making liberal use of the provision. No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of Course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the first Class in respect of a cheque which covers an amount of Rs. 5000 the Court has power to award compensation to be paid to the complainant.”
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 of this Court in Hari Singh v. Sukbir Singh [1988] 4 SCC 551. 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. If there 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. Respondent side brought the contention of a case rendered by a single judge of the High Court of Kerala vide Rajendran v. Jose, (2001) 3 Kerala Law Times 431, in which Learned Judge has directed that the decision of this Court in Hari Singh v. Sukhbir Singh is not to be followed as this Court laid down the said legal proposition without adverting to Section 431 of the Code.
But, 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”, it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by 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. This Court expresses its disapproval of the course adopted by the said judge in Rajendran v. Jose, (2001) 3 Kerala Law Times 431.
The total amount covered by the cheques involved in the present two cases was Rs. 4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case.
Decision:
The Court, therefore, set aside the sentence passed on the respondent and remit the case back to the trial Magistrate for passing appropriate sentence on the respondent after hearing both sides.
Sudipta Bhowmick, 4th Year, B.A. LL.B., School of Law, KIIT University
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