Case Note & Summary
The Bombay High Court addressed three petitions raising a common legal question: whether an appellate court hearing an appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881 can direct the accused to pay the compensation awarded by the trial court under Section 357(3) of the Code of Criminal Procedure, 1973 as a condition for suspending the substantive sentence. In the first two writ petitions, the Additional Sessions Judge had directed the petitioner-accused to pay Rs. 5 lakhs within four weeks as a condition for suspending a one-month simple imprisonment sentence and compensation of Rs. 15 lakhs awarded under Section 357(3) CrPC. The court held that the appellate court's power under Section 389 CrPC to suspend sentence does not include the power to impose payment of compensation as a condition. Section 357(3) CrPC is exclusively a trial court power exercisable at the time of sentencing. The appellate court cannot indirectly enforce compensation by making it a condition for suspension. The court set aside the impugned orders and directed the appellate court to reconsider the suspension applications without imposing such conditions.
Headnote
A) Criminal Procedure - Suspension of Sentence - Condition of Compensation - The appellate court under Section 389 CrPC cannot impose payment of compensation under Section 357(3) CrPC as a condition for suspending substantive sentence - Section 357(3) CrPC is a power vested only in the trial court at the time of passing judgment - The appellate court's power to suspend sentence is independent and cannot be used to enforce compensation orders (Paras 2-3).
Issue of Consideration
Whether the appellate court, on presentation of an appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881, has the power to direct payment of compensation awarded by the Magistrate under Section 357(3) of the Code of Criminal Procedure, 1973, in whole or in part, as a condition for suspending the substantive sentence.
Final Decision
The court allowed the petitions and set aside the impugned orders of the Additional Sessions Judge directing payment of compensation as a condition for suspension of sentence. The appellate court was directed to reconsider the applications for suspension of sentence afresh without imposing such conditions.
Law Points
- Appellate court's power to suspend sentence under Section 389 CrPC does not include power to impose condition of payment of compensation under Section 357(3) CrPC
- Section 357(3) CrPC is only for trial court at time of sentencing
- Compensation under Section 357(3) CrPC cannot be imposed as condition for suspension of sentence
Case Details
2006 LawText (BOM) (06) 21
Writ Petition No.1167 of 2006, Writ Petition No.1168 of 2006, Revision Application No.237 of 2006
Subhash Jha with G.D.Upadhyay, Laxmi Menon with Jimesh Shah and Gaurav Agarwal i/b Law Global (for petitioner); Mrs Revati Mohite-Dere (for respondent no.1); Mr A.S.Shitole, APP (for respondent-State); Mr J.S.Padam (for petitioners in Revision Application)
Dilip S. Dahanukar (in WP 1167/2006 and WP 1168/2006); G.T.B.Road Lines and Satnam Singh (in Revision Application 237/2006)
Kotak Mahindra Co. Ltd and State of Maharashtra (in WP 1167/2006 and WP 1168/2006); State of Maharashtra and Shri Harbans Singh (in Revision Application 237/2006)
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Nature of Litigation
Criminal writ petitions and revision application challenging orders of Additional Sessions Judge directing payment of compensation as condition for suspending sentence under Section 138 NI Act.
Remedy Sought
Petitioners sought quashing of the condition imposed by the appellate court requiring payment of compensation as a precondition for suspension of substantive sentence.
Filing Reason
The appellate court directed the accused to pay Rs. 5 lakhs within four weeks as a condition for suspending the sentence of one month SI and compensation of Rs. 15 lakhs under Section 357(3) CrPC.
Previous Decisions
The trial court convicted the accused under Section 138 NI Act and awarded compensation under Section 357(3) CrPC. The appellate court suspended the sentence subject to payment of part of the compensation.
Issues
Whether the appellate court has power under Section 389 CrPC to impose payment of compensation under Section 357(3) CrPC as a condition for suspending substantive sentence.
Submissions/Arguments
Petitioners argued that the appellate court cannot impose such a condition as Section 357(3) CrPC is only for the trial court.
Respondents argued that the appellate court has inherent power to impose conditions while suspending sentence.
Ratio Decidendi
The appellate court's power under Section 389 CrPC to suspend sentence does not include the power to impose payment of compensation under Section 357(3) CrPC as a condition. Section 357(3) CrPC is a power exclusively vested in the trial court at the time of passing judgment and cannot be exercised by the appellate court while suspending sentence.
Judgment Excerpts
These three petitions have given rise to a short yet important question that whether the appeal court on presentation of an appeal against the order of conviction under section 138 of the Negotiable Instruments Act has power to direct payment of compensation, awarded by the learned Magistrate, in whole or any part thereof, as a condition for suspending substantive sentence.
Procedural History
The trial court convicted the accused under Section 138 NI Act and awarded compensation under Section 357(3) CrPC. The accused appealed to the Additional Sessions Judge, who suspended the substantive sentence subject to payment of Rs. 5 lakhs as a condition. The accused then filed writ petitions and a revision application before the High Court challenging that condition.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 357(3), 389
