TaxTMI 
TaxTMI 
2009 (5) TMI 892
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....r order dated 27th March, 2007 confirmed the judgment of conviction and sentence passed by the learned Magistrate. In revision, being Criminal Revision Petition No.1836 of 2007-D, the Kerala High Court by its judgment dated 28th May, 2007, while upholding the conviction, modified the sentence from imprisonment for a year to imprisonment till the rising of the Court and to pay a compensation of Rs.8,25,000/- to the complainant under Section 357(3) Cr.P.C. and in default to undergo Simple Imprisonment for six months. 3. It is the said order of the Kerala High, which has been impugned in the instant Special Leave Petition. 4. Dr. K.P. Kailasanatha Pillay, learned Advocate for the petitioner, questioned the judgment of the High Court mainly on the ground that the High Court had erred in law in confirming the default clause made by the Trial Court while directing compensation to be paid under Section 357(3) Cr.P.C. According to Dr. Pillay, though Section 357(1) Cr.P.C., inter alia, provides for the disbursement of fine imposed by way of compensation, Sub-Section (3), merely empowers the Court when it imposes a sentence of which fine does not form a part, to order the accused perso....
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....ion of offence and while Sub- Section (1) of Section 357 provides for application of the amount of fine, Sub-Section (3) of Section 357 seeks to achieve the same purpose. 7. In this regard, Dr. Pillay also referred to and relied upon a recent decision of this Court in Ettappadan Ahammedkutty @ Kunhappu v E.P. Abdullakoya @ Kunhi Bappu & Anr. in Criminal Appeal No.1013 of 2007, where the same question as raised in this Special Leave Petition fell for consideration and the said appeal was disposed of by the following order: "Compensation can be directed to be paid both in terms of sub-section (1) of Section 357 of the Code of Criminal Procedure as also sub-section (3) thereof. However, while exercising jurisdiction under sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of sub-section (1) of Section 357. If the compensation directed to be paid by the Court in exercise of its jurisdiction under sub-section (3) of Section 357 Cr.P.C. is not deposited, th....
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....ench 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. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose 2001 (3) Kerala Law Times 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the Single Judge of the High Court has incorrectly reversed it." 11. It was also urged that the decision in Dilip S. Dahanukar's case (supra), referred to on behalf of the petitioner, had no application to the issues involved in the present case since in the said case the issue was whether Sub-Section (2) of Section 357 could be applied in cases where compensation is awarded under Sub-Section (3) thereof and it was urged that the provisions of Sub-Section (2) would be applicable even in cases where compensation is awarded under Section 357(3). It was submitted that the said decision was not an authority for the proposition that default sentence could be imposed where compensation is awarded under Section 357(3) Cr.P.C. 12. As far as t....
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....wise'. A terms of imprisonment ordered in default of payment of fine stands on a different footing." The same view was expressed earlier by this Court in Kuldip Kaur v Surinder Singh [(1989) 1 SCC 405], where it was held that a default sentence is a mode of enforcing recovery of amount imposed by way of compensation. 14. It was submitted that if default sentence is taken to be a mode of recovery, then Sections 64 to 70 IPC would be applicable even in cases where compensation is awarded to the victim under Section 357(3) Cr.P.C. It was further submitted that while Section 431 states that an amount other than a fine is recoverable as if it were a fine, a fine could also be recoverable either under Section 421 Cr.P.C. by attachment of movable and immovable property or under Sections 64 to 70 IPC and Section 30 Cr.P.C. It was submitted that the said modes of enforcement were also available in respect of compensation directed to be paid under Section 357(3) Cr.P.C. in the light of the provisions of Section 431 thereof. 15. Mr. Basant concluded on the note that since the powers of the Magistrate were restricted to awarding a maximum fine of Rs.5,000/-, which was subsequently....
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....The power to impose a default sentence in case of non-payment of compensation under Section 357(3) Cr.P.C. has been duly recognized by this Court and the arguments advanced to the contrary on behalf of the Petitioner must, therefore, be rejected. 20. Section 357 Cr.P.C. bears the heading "Order To Pay Compensation". It includes in sub-Section (1) the power of the Court to utilize a portion of the fine imposed for the purpose of compensating any person for any loss or injury caused by the offence. In addition, Sub-Section (3) provides that when a sentence is imposed by the Court, of which fine does not form a part, the Court may, while 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 suffers any loss or injury by reason of the act for which the accused person has been so sentenced. It is true that the said provision does not include the power to impose a default sentence, but read with Section 431 Cr.P.C. the said difficulty can be overcome by the Magistrate imposing the sentence. To appreciate the said legal position, the provisions of Section 431 are set out herein below:- &nbs....