LexR. MOHAN versus A.K. VIJAYA KUMAR
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[2012] 7 S.C.R. 1 R. MOHAN v. A.K. VIJAYA KUMAR (Criminal Appeal No. 883 of 2012) JULY 3, 2012 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.] A B Code of Criminal Procedure, 1973 - s.357(3), 421 and 431 - Sentence in default of payment of compensation - Legality of - Issuance of cheque without sufficient balance in C the bank - Trial court sentenced the accused (drawer of the cheque) to simple imprisonment for 3 months and also directed him to pay compensation of Rs. 5 lakhs to the payee uls.357(3) CrPC - Further direction of trial court that if the compensation amount was not paid, the accused would have o to undergo additional imprisonment of 2 months - Order upheld by Sessions Court - In revision, High Court, while confirming the conviction and sentence of 3 months simple imprisonment as also order of compensation, held that no separate sentence could be awarded in default of payment of E compensation when the substantive sentence of imprisonment was independently awarded, and therefore, set aside the sentence in default of payment of compensation - On appeal, held: The idea behind directing the accused to pay compensation to the complainant is to give him F immediate relief so as to alleviate his grievance - In terms of s.357(3)CrPC compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced - If merely an order, directing compensation, is passed, it would be totally ineffective - Deterrence can only G be infused into the order by providing for a default sentence - If s.421 CrPC puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be 1 H 2 SUPREME COURT REPORTS [2012] 7 S.C.R. A done in case of default in payment of fine u!s. 64 /PC - Thus, order to pay compensation may be enforced by awarding sentence in default - High Court erred in setting aside the sentence imposed in default of payment of compensation - Penal Code, 1860 - s.64 - Negotiable Instruments Act, 1881 B - s.138. Negotiable Instruments Act, 1881 - s. 138 - Conviction and sentence awarded to accused for issuing cheque without sufficient balance in the bank - Propriety of - Held: On facts, proper - The complainant's evidence was wholly satisfactory C - High Court was perfectly justified in confirming the conviction and sentence in view of the promissory note (Ex-P1 ), the cheque (Ex-P2), reply dated 24-5-2002 sent by the accused to the complainant (Ex-PB) and the complainant's Income-tax Returns. D The case of the complainant-payee was that the accused and his wife had jointly borrowed a sum of Rs.5 lakhs from him and executed a promissory note in his favour; that the accused had also issued a cheque in his E favour towards the principal amount and that when the said cheque was presented by the complainant with his banker for payment, it was dishonoured with bank's remark "insufficient funds". The accused denied the complainant's claim pleading that he had borrowed only F Rs.3 Lakhs which he had already paid back and that the cheque was issued only as a security and that it was not returned to him though demanded. He relied on an entry from a diary maintained by him showing that as of April, 2002, only a sum of Rs.90,101/- was due and payable by G him to the complainant. H The accused was tried by the Metropolitan Magistrate Court for offence under Section 138 of the Negotiable Instruments Act, 1881 whereupon he was sentenced to undergo 3 months simple imprisonment and directed to R. MOHAN v. AK. VIJAYA KUMAR 3 pay compensation of Rs.5 lakhs to the complainant under A Section 357(3) of CrPC, and in default of payment of compensation, to undergo additional 2 months simple imprisonment. The Sessions court confirmed the conviction and sentence. In revision, the High Court confirmed the order of conviction and sentence of 3 B months simple imprisonment and compensation of Rs.5 lakhs, however, the High Court was of opinion that no separate sentence could be awarded in default of payment of compensation when substantive sentence of imprisonment is independently awarded. The High Court, C therefore, set aside the sentence in default of payment of compensation. Being aggrieved by the said order of conviction and sentence, the accused filed appeal
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