JOHN BOSCO Vs. M ABDUL KADER

JUDGEMENT

(1.) Revision petitioner is challenging the order granting compensation to the first respondent/complainant in a conviction for the offence under Section 138 of Negotiable Instruments Act by the revisional court, on a revision filed by the complainant. Petitioner was convicted and sentenced to simple imprisonment for two months for the offence under Section 138 of Negotiable Instruments Act. No compensation was awarded by the learned Chief Judicial Magistrate, though the cheque was for Rupees One lakh. First respondent challenged the sentence before Sessions Court contending that the sentence awarded is insufficient. Learned Additional Sessions Judge, after hearing the petitioner and the first respondent, found that the sentence awarded is not reasonable. Learned Additional Sessions Judge held: 'That being the position, regard being had to the amount involved in the cheque, the sentence of simple imprisonment for two months awarded is nothing but a flea bite sentence, because he was let off by such flea bite sentence, he suffered the sentence and escaped from the liability. It can never be said that justice was done to the complainant." Learned Additional Sessions Judge found that sentence awarded was illegal and altered the sentence by awarding a compensation of Rupees One lakh under Section 357(3) of Code of Criminal Procedure with a default sentence of simple imprisonment for three months. This revision is filed challenging the sentence.

(2.) Learned Counsel appearing for the petitioner was heard.

(3.) Argument of the learned Counsel is that when learned Additional Sessions Judge did not alter the substantive sentence, he has no jurisdiction to award compensation in a revision filed by the first respondent. Argument is that as provided under Section 386(c) of Code of Criminal Procedure, when the sentence is not altered, compensation cannot be granted. Argument of the learned Counsel is that compensation does not form part of the sentence as provided under Section 53 of Indian Penal Code and therefore, modification of the sentence by awarding compensation alone is not alteration of the sentence and hence, the enhanced sentence awarded by the learned Additional Sessions Judge is illegal. Relying on the decision of the Apex Court in Dilip v. Kotak Mahindra Co. Ltd., 2007 2 KerLT 488 , learned Counsel argued that compensation awarded without conducting an enquiry on the capacity of the petitioner to pay the same is illegal. Learned Counsel also relied on the decisions of the Apex Court in Shantilal v. State of M.P., 2008 1 KerLT 503(SC) and Vijayan v. Sadanandan, 2009 2 KerLT 618(SC) in support of his contention that compensation does not form part of the sentence.