Ravindra Kumar v. Padmanaban

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 23-11-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL REVISION CASE No.485 OF 2007Ravindra Kumar...Petitioner/Accused-vs-Padmanaban...Respondent/ComplainantRevision under Section 397 read with 401 of the Code of CriminalProcedure.For petitioner : Mr.I.C.VasudevanFor respondent : Mr.A.K.KumarasamyJ U D G M E N TThis revision is filed against the judgment, dated 01.02.2007,passed in Crl.R.C.No.83 of 2006 by the Principal Sessions Judge,Erode, wherein the judgment passed by the Judicial Magistrate,Perundurai, in C.C.No.12 of 2005, dated 17.04.2006, was modified,enhancing the compensation from Rs.25,000/- to Rs.65,000/-.2. Petitioner is the accused in the Calendar Case, which wastaken on file on the complaint lodged by the respondent/complainant,on the strength of dishonour of a cheque, reportedly issued by thepetitioner on 31.07.2004, for a sum of Rs.45,000/-.3. The Judicial Magistrate, after considering the oral evidenceon record, found the petitioner guilty of the offence under Section138 of The Negotiable Instruments Act, in short 'the Act', slapping afine of Rs.3,000/- and, in default of payment, to undergo simpleimprisonment for six months, also directing him to pay a sum ofRs.25,000/- as compensation to the respondent/complainant, underSection 357 (3) Cr.P.C.4. Not satisfied with the sentence imposed on the accused, thecomplainant preferred a revision before the Principal Sessions Court,Erode, in Criminal Revision Petition No.83 of 2006, for enhancement ofsentence of compensation. On going through the facts, the PrincipalSessions Judge allowed the revision, enhancing the compensation fromRs.25,000/- to Rs.65,000/- and, in default of payment, to undergo https://hcservices.ecourts.gov.in/hcservices/ rigorous imprisonment for one year, under Section 397 Cr.P.C. 5. The accused has carried the said order of enhancement ofcompensation in revision before this Court.6. In order to get enlightened about the nature of relief to beawarded by the Courts below and the relief considered by this Court, aperusal of the relevant provision, namely, Section 397 Cr.P.C. isinevitable, which reads as under :"397. Calling for records to exercise powers ofrevision.-(1) The High Court or any Sessions Judge maycall for and examine the record of any proceedingbefore any inferior Criminal Court situate withinits or his local jurisdiction for the purpose ofsatisfying itself or himself as to thecorrectness, legality or propriety of anyfinding, sentence or order, recorded or passed,and as to the regularity of any proceedings ofsuch inferior Court, and may, when calling forsuch record, direct that the execution of anysentence or order be suspended, and if theaccused is in confinement, that he be released onbail or on his own bond pending the examinationof the record.Explanation.- All Magistrates, whetherExecutive or Judicial, and whether exercisingoriginal or appellate jurisdiction, shall bedeemed to be inferior to the Sessions Judge forthe purpose of this sub-section and of Section398.(2) xxx(3) xxx"7. Revisional powers of the High Court are very wide but arepurely discretionary and exercisable only when there is a glaringdefect in the procedure and a manifest error on point of law, leadingto miscarriage of justice. The power of revision is to be exercisedonly for correcting injustice and not mere illegality, which may notgo to the root of the case. The interference of Court in revision isjustified, if the decision rendered by the Court below is patently orgrossly erroneous or there is no compliance with the provisions of lawand when there is a violation of the statutory requirements. Asadverted to supra, the revisional jurisdiction of the High Court mustbe exercised, if there is any glaring defect in the procedure ormanifest error on point of law, resulting in a flagrant miscarriage ofjustice. https://hcservices.ecourts.gov.in/hcservices/

8. Now, the matter has to be looked into, in the backdrop of theabove said principles laid down in the illuminating judicialpronouncements.9. The Principal Sessions Judge has justified the enhancement ofcompensation in his order, saying that considering the cheque amount,the compensation awarded by the trial Court was not adequate and itrequired enhancement, for the purpose of achieving the object ofSection 138 of the Act. He also followed the principles laid down invarious decisions of the High Court and the Supreme Court. He furtherreferred to a decision of the Himachal Pradesh High Court in Pran NathTikku v. Rajirider Maheswari, 2004 Cri.L.J.3772, in which it wasconcluded that the Sessions Judge is empowered to enhance the sentenceunder Section 397 Cr.P.C. Also, he quoted a decision of this Court inM/s.Sasi Polycolours v. M/s.Lakshmi Polymers & Others, 2006 Cri.L.J.2489, in which it was observed that in order to avoid delay andmultiplicity of litigation, the sentence of compensation of twice theamount of the cheque had to be awarded, in exercise of revisionalpowers. 10. Learned counsel for the petitioner would draw attention ofthis Court to a decision in Suganthi Suresh Kumar v. Jegadeesan, 2001(3) CTC 29, in which it was held that this Court can only alter thenature or the extent of sentence or alter the nature and the extent ofsentence, but fresh compensation cannot be awarded, while exercisingthe powers of revision under Section 401 Cr.P.C., which envisagesexercise of powers under Section 386 Cr.P.C. It leads to a logicalconclusion that the High Court or a revisional Court cannot imposefresh compensation, when the Judicial Magistrate has not awarded anycompensation, but the facts of the case on hand are distinguishable.11. Learned counsel for the petitioner also places reliance upona decision of the Supreme Court in Mangilal v. State of MadhyaPradesh, 2004 (1) MWN (Cr.) (SC) 69, in which it is held as follows :"12. The use of the expression "may" throwslight on the legislative intent in the context itis used. It has been used in the permissiblesense and does not make it obligatory. In theaforesaid background, the inevitable conclusion isthat if the Appellate Court intends to awardcompensation, an opportunity of hearing has to begranted so that the relevant aspects like the needto award compensation, capacity of the accused topay and several other relevant factors can betaken note of."12. The Apex Court has laid down a dictum that while fixingquantum of compensation, the accused ought to be heard and non-observation of the procedure would be a violation of principles ofnatural justice. But, in the present case, no such circumstance is https://hcservices.ecourts.gov.in/hcservices/ available. The Principal Sessions Judge passed orders, only afterhearing both sides, and rendered a finding that considering the chequeamount and the object of Section 138 of the Act, the enhancement ofcompensation was unavoidable. The said finding, in my view, is inaccordance with law. Therefore, the decision aforecited is of noavail to the petitioner.13. Conversely, learned counsel for the respondent garneredsupport from a decision of the Supreme Court in Pankajbhai NagjibhaiPatel v. State of Gujarat, 2001 CRI.L.J.950, wherein the Apex Courthad referred to its previous judgment and reached a conclusion that aMagistrate can award any sum, as compensation. The relevant portionof the said decision goes thus :"16....Even that apart, a Magistrate whothinks it fit that the complainant must becompensated with his loss he can resort to thecourse indicated in Section 357 of the Code.This aspect has been dealt with in Bhaskaran'scase (supra) as follows :'However, the Magistrate in suchcases can alleviate the grievance ofthe complainant by making resort toSection 357 (3) of the Code. It iswell to remember that this Court hasemphasised the need for makingliberal use of that provision (HariSingh v. Sukhbir Singh, 1988 (4) SCC551). No limit is mentioned in thesub-section and therefore, aMagistrate can award any sum ascompensation. Of course while fixingthe quantum of such compensation, theMagistrate has to consider what wouldbe the reasonable amount ofcompensation payable to thecomplainant. Thus, even if the trialwas before a Court of Magistrate ofthe first class in respect of acheque which covers an amountexceeding Rs.5,000/-, the Court haspower to award compensation to bepaid to the complainant.'17. In our view, this question does not nowpose any practical difficulty. Whenever aMagistrate of the first class feels that thecomplainant should be compensated, he can, afterimposing a term of imprisonment, awardcompensation to the complainant, for which nolimit is prescribed in Section 357 of the Code." https://hcservices.ecourts.gov.in/hcservices/

14. The above said decisions on the subject would clearly go toshow that certain procedures have to be adopted, while fixing orenhancing the compensation by the Judicial Magistrate, the first beingthat both the parties particularly the accused shall be afforded ampleopportunity of being heard; secondly, the other circumstance, namely,in the like nature of cases, the quantum referred to in the chequeand, nextly, the objects of Section 138 of the Act, not to bedefeated.15. Inasmuch as the order under challenge, the same was passed bythe Principal Sessions Judge, after considering the above aspects andfollowing the guidelines formulated in the authoritative judicialpronouncements. Hence, this Court does not find any manifest error orany miscarriage of justice in the said order. The enhancement orderedby the Principal Sessions Court, Erode, is well within the fourcorners of law and the same deserves confirmation.16. For the foregoing reasons, this Criminal Revision Case isdismissed. No costs. Consequently, the connected Crl.M.P.Nos.1 and 3of 2007 stand closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1. The Principal Sessions Judge,Erode.2.The Judicial Magistrate Court,Perundurai, Erode District.3.-do- Thro' The Chief Judicial Magistrate,Erode.+1cc to Mr.I.C.Vasudevan, Advocate Sr 69916+1cc to Mr.A.K.Kumarasamy, Advocate Sr 69723NSM (CO)km/4.12.CRL.R.C.No.485 OF 2007