1) A Short but, indeed, an intricate question of law is raised in this revision application. To be stated precisely, the manner in which the learned Appellate Court suspended the sentence under challenge in the appeal is, in fact, questioned in this application.
2) In a case, under Section 138 of the N.I. Act, being no. C 986 of 1999, the learned Metropolitan Magistrate, 4th Court, Calcutta found the appellant guilty of offence and sentenced him to pay a fine of Rs. 15,05,000/-, in default, to suffer S.I. for 3(three) months. The learned Court directed to pay Rs. 15,00,000/-, in case fine is realised, to the complaint of the case as compensation. That judgement and order has been challenged in an appeal in the Court of learned Chief Judge, City Sessions Court, Calcutta being Criminal Appeal No. 74 of 2010.
3) The order dated 18.8.2010 passed by the learned Chief Judge, City Sessions Court, Calcutta which has been impugned in this application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as The Code) is reproduced below :
Order No. 3 dated 18.8.2010
Appellant files certified copy of the impugned judgement and order of conviction and sentence in compliance with the previous order. Let it be kept with the record.
A petition is also filed on behalf of the appellant praying for return of the free copy of the final order which was filed along with the Memo of Appeal for admission of this case. Heard. Perused the petition.
Considering that the certified copy of the impugned judgement and order of conviction and sentence have been filed, the prayer for return of the free copy of the impugned judgement and order of conviction and sentence to the petitioner on proper receipt and undertaking.
Now, heard the ld. Advocate for the appellant. Perused the impugned judgement and order of conviction and sentence. Considering the facts and circumstances and since the appeal has been filed within the statutory period of limitation the appeal is hereby admitted. Call for LCR.
Considering that the appeal has been admitted, the prayer for stay of operation of the impugned judgement and order of conviction and sentence dated 30.6.2010 is allowed subject to the payment of 1/4th of the cheque amount by 9.9.10. At this stage a separate petition has been filed by the petitioner/appellant praying that he may be permitted to remain on existing bail. Perused the petition. Heard.
Considering the facts and circumstances of the case and since the appeal has already been admitted, the prayer is allowed. The petitioner is permitted to remain on existing bail bond till the disposal of the instant Crl. Appeal.
To date for S/R and LCR Appellant is directed to file requites at once.
4) The ordering portion of the judgement passed in case no. C 986 of 1999 which was appealed against in the Court of learned Chief Judge, City Sessions Court, Calcutta is set out below :
Complainant is present with his Ld. Advocate. Accused is present with his Ld. Advocate Today is fixed for delivery of judgement. Judgement is ready. It consits of 5 sheets and the same is delivered in open Court. Hence it is ordered. That the accused Kusum Jain found and held guilty of offence u/sec 138 of N.I. Act and she is sentenced to pay a fine of Rs. 15,05000/- (Fifteen lacks and five thousand) i.d. to suffer S.I. for (3) months. If fine realised a sum of Rs. 15,00,000/- (Fifteen lacs) be paid to the complt as compensation convict be given a copy of this judgement free of cost atonce.
5) Mr. Sudipta Maitra, learned Counsel appearing for the petitioner contended that the learned Trial Court while sentencing the appellant/petitioner, passed no order as to imprisonment but to pay a fine of Rs. 15,05,000/- simpliciter, in default, to suffer S.I. for three(3) months and in case, fine is realised, a sum of Rs. 15,00,000/- to be paid to the complainant as compensation. So, the substantial sentence passed by the learned Trial Court was payment of fine not payment of compensation. Payment of compensation depends on the event of realisation of the fine so imposed. Therefore, Mr. Maitra contended that the provisions of sub Section (2) of Section 357 of the Code come in the way of the learned Appellate Court to suspend such a sentence on condition to make payment of 1/4th of the cheque amount by 9.9.2010. The learned Appellate Court imposed the condition to pay such an amount which is in violation of the provisions of Section 357(2) of the Code. In support of his contention Mr. Maitra referred to the decision of the Honble Apex Court in Dilip S. Dahanukar v. Kotak Mahindra Company Limited and Anr., reported in (2007) 3 Supreme Court Cases (Cri) 209.
6) Relying on the same decision of the Honble Court in Dilip S. Dahanukar (Supra), Mr. Jayamallya Bagchi, learned Counsel appearing for the opposite party no. 2 contended that the learned Appellate Court has ample power to direct an appellant/convict to pay part of fine imposed by the Trial Court as a condition to suspension of sentence. Mr. Bagchi has also referred to another decision to the Honble Apex Court in Stanny Felix Pinto v. M/s. Jangid Builders Pvt. Ltd. & Anr., reported in J.T. 2001 (1) SC 620 which, however, was considered by the Honble Court in Dilip
S. Dahanukar case (Supra).
7) There is no dispute as to the fact that the learned Trial Court passed no sentence of imprisonment. The only substantive and effective sentence passed by the learned Trial Court is to pay fine of Rs. 10,50,000/-. In case of default in paying that fine amount, the appellant was to undergo S.I. for three(3) months. The learned Trial Court made it explicit in the order passed by him that in the event of realisation of the fine amount, Rs. 15,00,000/- out of realised fine was to be given to the complaint as compensation. The order of learned Trial Court lives no room of doubt that payment of compensation arises only in the event of realisation of the fine amount. Consequently, it can well be assumed that in case of failure to make payment of fine, the appellant/convict is supposed to undergo S.I for three months. In that event, question of paying fine and as a consequence, paying of compensation would not arise. Mr. Bagchi accepted this proposition candidly and expressed his view that learned Trial Court, in fact and in reality, imposed the substantive sentence of payment of fine. Payment of compensation will arise only in case fine amount is realised. But, he contended, even in that case also, the ld. Appellate Court is empowered to put a condition to pay part of fine amount against suspension of sentence till disposal of the appeal.
8) In the factual background above, the question raised by Mr. Maitra is to be considered. It appears necessary to mention that the petition of complaint was filed by the opposite party in the Court of learned Metropolitan Magistrate for prosecuting the petitioner under Section 138 of The Act wherein the cheque in question was for Rs. 10,00,000/-. It is also pertinent to mention here that the learned Appellate Court while passing the order impugned, directed the petitioner to deposit 1/4th of the cheque amount not 1/4th of the fine amount or 1/4th of the compensation amount of Rs. 15,00,000 /-. Neither Mr. Maitra nor Mr. Bagchi made any submission that payment of 1/4th of cheque amount is equivalent to or akin to or has any connection with payment of 1/4th of the fine amount or 1/4th of the compensation amount as directed by the Trial Court. The learned Appellate Court, in fact passed an order independently while suspending the order of sentence which does not form part of the fine amount or the compensation amount.
9) In Stanny Felix Pinto (supra), the Honble Apex Court held that the petitioner therein was convicted under Section 138 of the N.I. Act and was sentenced to imprisonment as well as fine. The High Court, while entertaining the revision application, granted suspension of sentence by imposing a condition that part of the fine shall be remitted in Court within a specified time. The Honble Court was pleased to hold that the High Court has done that correctly and in the interest of justice.
10) The fact of that case before the Honble Court are somewhat different than that of the instant case. In this case, the petitioner was sentenced to pay a fine of Rs. 1505000/-, in default, to suffer S.I. for three months. It was further directed by the learned Trial Court that if fine is realised, a sum of Rs. 15,00,000/- is to be paid to the complainant as compensation.
11) The decision in Stanny Felix Pinto (Supra) was considered by the Honble Apex Court in Dilip S. Dahanukar (Supra) and it was observed that the Court had no occasion to consider the provisions of Section 357 of the Code in detail. The Honble Apex Court in Dilip S. Dahanukar (Supra) discussed the matter elaborately. The questions before the Honble Court were
a) that having regard to the provisions of Section 357(2) of the Code, the impugned judgement is wholly unsustainable inasmuch as in terms thereof the amount of fine imposed would automatically be suspended;
b) right to prefer an appeal being a constitutional right in terms of Article 21 of the Constitution of India, no condition could have been imposed in respect therefor or for suspension of sentence.
12) In that case before the Honble Court the appellants were convicted for commission of an offence involving Section 138 of the Act by judgement of conviction and sentence holding :
Accused 1 Company, M/S Goodvalue Marketing Co. Ltd. stands convicted for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act.
Accused- 1 Company is sentenced to pay a fine of Rs. 25,000/-(Rs. twenty-five thousand only). In default of payment of fine, Accused 2 Mr. Dilip Dahanukar, the Chairman of Accused 1 and representative at the Trial, shall suffer S.I. for one month.
Accused- 2 Mr. Dilip S. Dahanukar, stands convicted for the offence punishable under Section 138 read with Section 141 of the N.I. Act.
Accused no. 2 is sentenced to suffer S.I. for one month. Accused 2 is also directed to pay compensation to the complainant, quantified at Rs. 15,00,000/- ( Rs. 15 lacs only), under Section 357 (3) of the Cr.P.C. Accused no. 2 is entitled to pay the amount of compensation in two equal monthly installments of Rs. 7,50,000/- each. The first installment of Rs. 7,50,000/- shall be paid on or beofre 23.3.2006 and the second installment of Rs. 7,50,000 shall be paid on or before 24.4.2006; in default of payment of the amount of compensation Accused no. 2 shall suffer further S.I. for three months.
13) An appeal was preferred against that judgement. The Appellate Court while admitting the appeal, directed the appellants (convicts) to deposit a sum of Rs. 5,00,000/- (Five lacs) each within four weeks from the said date. That order of the Appellate Court was challenged before the Honble Apex Court. The factual aspects in the Dilip S. Dahanukar case (Supra) and the factual aspects of the instant case are not similar. In the instant case, the appellant/petitioner was sentenced to pay a fine of Rs. 15,05,000/-, in default to suffer S.I. for three months. The learned Trial Court further directed that if fine is realised, a sum of Rs. 15,00,000/- is to be paid to the complainant as compensation. The difference in the factual aspects in Dilip S. Dhanukar case (Supra) and this case are quite apparent. In the case before the Honnle Court, the Trial Court besides passing of sentence to pay a fine of Rs. 25,000/- and in default to suffer S.I. for one months in respect of accused no. 1 company, sentenced accused no. 2 Mr. Dilip S. Dahanukar to suffer S.I. for one month and also directed to pay compensation to the complainant of Rs. 15,00,000/- in two installments failing which, the accused no. 2 shall suffer further S.I. for two months. 14) In the instant case, the petitioner/appellant was sentenced to pay fine only in default, to undergo S.I. for one month. The complaint would entitle to a compensation only in case fine amount is realised.
15) Be that as it may, the Honble Apex Court while discussing the relevant provisions of Section 357, 431, 439 of the Code of Criminal Procedure, was pleased to draw distinction between sub Section (1) and (3) of Section 357 and held that sub Section (1) provides for application of an amount of fine while imposing a sentence of which fine forms a part; where as sub Section (3) calls for a situation where a Court imposes a sentence of which fine does not form part of sentence.
16) The Honble Court was pleased to hold further that the fine can be imposed only in terms of the provisions of the Act. Fine which can be imposed under the Act, however, shall be double of the amount of the cheque which stood dishonoured. When, however, fine is not imposed, compensation can be directed to be paid for loss for injury caused to the complainant by reason of commission of the offence. Clause (b) of sub Section (1) of Section 357 only provides for application of amount of fine which may be in respect of entire amount or in respect of part thereof. Sub Section (3) of Section 357 seeks to achieve the same purpose. The Honble Court further observed that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a fine but the legal fiction raised in relation to recovery of fine only, it is in that sense fine stands on a higher footing than compensation awarded by the Court. If, therefore, under Sub Section (2) of Section 357, realisation of fine, at least in respect of factors enumerated in Clause (1) of Sub Section (1) of Section 357 is to be stayed automatically, there is no reason as to why the legislative intent cannot be held to apply in relation to the amount of compensation directed to be paid in terms of Sub Section (3).
17) The Honble Court observed further that Magistrates can not award compensation in addition to fine. When a fine is imposed, however, the private party has no right to insist that compensation may be awarded to him out of the amount of fine. The power to award compensation under Section 357(3) is not an ancillary power. It is an additional power. Clause (b) of Sub Section (1) of Section 357 and Sub Section (1) of Section 357 and Sub Section (3) of Section 357 seek to achieve the same purpose. What is necessary is to find out the intention of the lawmaker and the object sought to be achieved. Sub Section (2) Section 357 uses the word fine. It does not say that what would be stayed i.e. application of fine. Sub Section (2) of Section 357, does not contemplate any other interpretation. The amount of compensation may be recovered under Section 421 of the Code. If realisation of an amount of compensation payable to a victim as envisaged under Clause (b) of Sub Section (1) of Section 357 is to be stayed under Sub Section (2) thereof, there is no reason why the amount of compensation payable in terms of Sub Section (3) shall not receive the same treatment.
18) The Honble Court upon discussion of all the provisions of law was pleased to come to a conclusion that a compensation awarded can also be recovered in the same way Courts recover fine amount under Section 421 of the Cr.P.C and under Section 431 which is a residuary provision covering the field.
19) Finally the Honble Court was pleased to opine
i) In a case of this nature, sub Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when the appellant was directed to pay compensation;
ii) the Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is constitutional and statutory right;
iii) the amount of compensation must be a reasonable sum; iv) the Court while fixing sum amount , must have regard to all relevant factors including the one referred to Sub Section (5) of Section 357 of the Code of Criminal Procedure;
v) no unreasonable amount of compensation can be directed to be paid.
20) In the instant case, the learned Trial Court directed the petitioner/appellant to pay a fine of Rs. 15,00,000/- in default, to suffer S.I. for three months. The question of compensation arises only in case the petitioner/appellant fails to pay fine amount. Paying of compensation depends on the eventuality of realisation of the fine amount. Therefore, in fact and in substance, the learned Trial Court passed sentence to pay fine only. In such a case, sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted. Therefore, the contention of Mr. Maitra appears to be convincing and acceptable on that analogy. But, the ld. Appellate Court did not put any term while suspending the sentence of payment of fine, by way of depositing any part of the fine amount or the compensation amount as awarded by the ld. Trial Court. The ld. Appellate Court directed to pay 1/4th the cheque amount, i.e., 1/4th of Rs. 10,00,000/- while suspending the sentence. This situation does neither fall within sub Section (2) nor Sub Section (3) of Section 357.
21) That condition was not imposed for entertaining the appeal itself. The term to pay 1/4th of the cheque amount was imposed independently for the purpose of suspension of the sentence which, in view of decision in Stanny Felix Pinto (Supra) as well as Dilip S. Dahanukar (Supra) can well be done. That the order of learned Appellate Court has been passed in the interest of justice keeping in mind that huge amount of fine has been imposed by the learned Trial Court. That being the fact and that the order being a reasonable one and passed in the interest of justice, this Court does not like to interfere with that order.
22) Accordingly, the petition is dismissed.
23) The revision application is disposed of.
24) The learned Appellate Court is directed to dispose of the appeal expeditiously, if possible, within two months hence.
(Kanchan