R SUBRAMANIAN Vs. JAYAPRIYA FINANCIERS

JUDGEMENT

(1.) REVISION against the conviction and sentence passed in c. A. No. 43 of 2003, dated 23. 07. 2004 on the file of the learned Additional district and Sessions Judge (Fast Tract Court No. 2), at Cuddalore, confirming the conviction and sentence passed in C. C. No. 511 of 1998, dated 09. 09. 2003, on the file of the learned District Munsif-Cum-Judicial Magistrate, Neyveli, and to set aside the same. This revision is against the conviction and sentence passed in C. A. No. 43 of 2003, dated 23. 07. 2004 on the file of the learned additional District and Sessions Judge (Fast Tract Court No. 2), at Cuddalore, confirming the conviction and sentence passed in C. C. No. 511 of 1998, dated 09. 09. 2003, on the file of the learned District Munsif-Cum-Judicial Magistrate, neyveli, whereby the accused was found guilty of the offence punishable under sections 138 and 142 of the Negotiable Instruments Act and convicted and sentenced to undergo one year Simple Imprisonment and under Section 357 of cr. P. C. the accused was directed to pay compensation of Rs. 13,00,000/- to the complainant directly.

(2.) THE brief facts of the case are as follows: - THE revision petitioner stood accused in C. C. No. 511 of 1998, on the file of the District Munsif-Cum-Judicial Magistrate, Neyveli. THE revision petitioner/accused borrowed a sum of Rs. 10,00,000/- from Jayapriya finance, proprietary concern and executed a Promissory Note, Ex. P. 1, on 08. 09. 1996 along with his wife Gandhimathi. THE accused is a Contractor and he borrowed the above said sum for his business and family purposes. In order to discharge the said loan, the accused issued three cheques for a sum of rs. 13,00,000/- towards the principal and interest. THE first cheque was issued on 07. 08. 1998 for a sum of Rs. 4,50,000/-, the second cheque was issued on 12. 08. 1998 for a sum of Rs. 5,50,000/- and the third cheque was issued on 24. 08. 1998 for a sum of Rs. 3,00,000/ -. THE cheques when presented to the bank were returned due to "insufficient fund" and "account closed". Three dishonoured cheques were marked as Exs. P. 2, P. 5 and P. 9. Exs. P. 4 and P. 7 are the memos issued by the drawee bank for dishonour of the cheques. Hence, the complainant issued notices to the accused (Exs. P. 12 and P. 13 ). Both the notices were returned as unclaimed by the accused. THErefore, a private complaint was lodged before the learned Magistrate.

(3.) MR. V. Padmanabhan, learned counsel appearing for the accused/revision petitioner restricted his contentions to only one point i. e. the accused was not questioned with regard to the compensation payable by him. In support of the said contention, the learned counsel relied on the Judgment reported in 2004 (1) Supreme 9 (Mangilal Vs. State of Madhya Pradesh) when the supreme Court has observed as follows: - 8. The power of the Court to award compensation to victims under Section 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh V. Sukhbir Singh and others (1998 (4) SCC 551)it was observed that the power under Section 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a re-compensatory measure to rehabilitate to an extent the beleaguered victims of the crime, a modern constructive approach to crimes, a step forward in our criminal justice system. In Sarwan Singh and others etc V. The State of Punjab (AIR 1978 SC 1525) it was held that in awarding compensation, the Court has to decide whether the case is fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, then while arriving at the quantum to be paid, Courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the context of the victim or members of the family of the victim and other relevant circumstances, if any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the fine is indicated in sub section (1) of Section 357. Sub-section (3) contains an independent and distinct power to award compensation. 9. That brings us to the most crucial question, that is, whether the Court was required to hear accused before fixing the quantum of compensation. It is urged by the learned counsel for the State that unlike a sentence of fine before imposition of which a Court is required to hear the accused while considering the question of quantum of sentence, it is but natural that the trial Court after hearing on the question of sentence does not impose a find, but in terms of sub-section (3) of Section 357 proceed to award compensation, at that juncture or even during the course of hearing as to the quantum of sentence by sufficient indication made by the Court concerned, the accused gets opportunity to present his version as to the relevant criteria or norms to be applied in the context of the case before the Court on the quantum of compensation. The position cannot be said to be, in any way different while the appellate or Revisional Court also does it in terms of sub-section (4), as long as it requires to be done in the light of the criteria indicated as above, unless it is by any agreement or consent of the parties such compensation has been fixed. 10. Even if a statute is silent and there are no positive words in the Act or Rules made thereunder there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected, by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. Even in the absence of a provision in procedural laws, power inheres in every Tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on principles of natural justice irrespective of the extent of its application by express provision in that regard in given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadesi Cotton Mills etc. etc. , V. Union of India etc. etc. , AIR 1961 SC 818 ). Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain. 11. In the aforesaid premises, the irresistible conclusion is that opportunity has to be granted before directing payment of compensation under Section 357 (4) of the Code. 12. The use of the expression "may" throws light on the legislative intent in the context it is used. It has been used in the permissible sense and does not make it obligatory. In the aforesaid background, the inevitable conclusion is that if that if the Appellate Court intends to award compensation an opportunity of hearing has to be granted so that the relevant aspects like the need to award compensation, capacity of the accused to pay and several other relevant factors can be taken note of.