IN THE SUPREME COURT OF INDIA CIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Crl.)No.3220 of 2008

 Vijayan           …   Petitioner  Vs.

 Sadanandan K. & Anr.            …   Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. In this Special Leave Petition we are called  

upon to consider whether a default sentence can be  

imposed  when  compensation  is  awarded  under  Sub-

Section (3) of Section 357 of the Code of Criminal  

Procedure.

2. In  the  instant  case,  the  petitioner  stood  

convicted by the Judicial Magistrate,  First Class,  

Court-II,  Pathanamthitta,  of  an  offence  under  

Section  138  of  the  Negotiable  Instruments  Act,  

1881,  and sentenced to undergo simple imprisonment  

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for one year and to pay a sum of Rs.8,25,000/- as  

compensation  to  the  complainant/Respondent  No.1  

herein under Section 357(3) of the Code of Criminal  

Procedure,  (Cr.P.C.in  short)  and  in  default  to  

undergo simple imprisonment for a further period of  

six  months.   On  appeal  (Criminal  Appeal  

no.41/2006), the Additional District and Sessions  

Judge by her 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.   

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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 person to  

pay, by way of compensation, such amount as may be  

specified  in  the  order,  to  the  person  who  has  

suffered any loss or injury by reason of the act  

for which the accused person has been so sentenced.  

Dr. Pillay submitted that in the absence of any  

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specific  provision  with  regard  to  default  in  

payment  of  compensation  which  was  distinctly  

different  from  imposition  of  fine  by  way  of  a  

penalty, the High court had wrongly confirmed the  

default sentence imposed by the learned Magistrate  

and upheld by the learned Sessions Judge.

5. Dr.  Pillay  submitted  that  according  to  the  

scheme  of  the  Criminal  Procedure  Code,  if  any  

amount is to be recovered on account of default in  

payment  of  fine,  it  would  have  to  be  done  in  

accordance  with  the  provisions  of  Section  421  

Cr.P.C. which provides for issue of warrant for the  

levy of the amount by attachment and sale of any  

movable property belonging to the offender and in  

the  alternative,  by  issuance  of  warrant  to  the  

Collector  of  the  district,  authorizing  him  to  

realize the amount as arrears of land revenue from  

the movable or immovable property or both, of the  

defaulter.   Dr.  Pillay  also  urged  that  the  

provisions of Section 431, which is another mode  

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for recovery of amounts payable as fine, does not,  

however,  cover  cases  involving  the  recovery  of  

compensation  payable  under  Section  357(3)  and  

therefore, the only mode available to the Court to  

recover any defaulted amount by way of compensation  

is to take recourse to the provisions of Section  

421 Cr.P.C.  

6. In  support  of  his  submissions,  Dr.  Pillay  

referred to the decision of this Court in Dilip S.  

Dahanukar v Kotak Mahindra Co. Ltd. & Anr. [(2007)  

6  SCC  528],  wherein,  while  considering  the  

difference  between  the  provisions  of  Section  

357(1)(b)  and  Section  357(3)  Cr.P.C.,  i.e.,  the  

difference between “fine” and “compensation” this  

Court observed that the distinction between Sub-

Sections (1) and (3) of Section 357 is apparent as  

Sub-Section  (1)  provides  for  application  of  an  

amount of fine towards the purposes indicated while  

imposing a sentence of which fine forms a part,  

whereas  Sub-Section  (3)  is  applicable  in  a  

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situation  where  the  Court  imposes  a  sentence  of  

which fine does not form a part of the sentence.  

This Court went on to observe that when fine is not  

imposed, compensation can be directed to be paid  

for loss or injury caused to the complainant by  

reason  of  commission  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  

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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, the  same can be realised as fine in terms of  Section  421  of  the  Code.  We  are,  therefore, of the opinion that that part  of  the  impugned  order  whereby  and  whereunder the appellant has been directed  to  undergo  imprisonment  for  a  period  of  one month, in the event of default to pay  compensation  under  sub-section  (3)  of  Section  357,  is  set  aside.  Rest  of  the  order of the High Court is upheld.”

8. Dr. Pillay also referred to and relied on a  

Single Bench decision of the Kerala High Court in  

Rajendran v  Jose [2002 (1) Crimes 653], where it  

was  held  that  in  order  to  recover  compensation  

awarded if it remained unpaid, the Trial Magistrate  

could take steps under Section 421 or under Section  

431 Cr.P.C. to recover the compensation, but the  

order  directing  the  petitioner  to  undergo  

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imprisonment  in  case  of  default  in  payment  of  

compensation was unsustainable.   

9. Dr. Pillay urged that in view of the law as  

laid down by this Court in the case of Ettappadan  

Ahammedkutty (supra), the High Court was clearly  

wrong in upholding the default sentence in case of  

non-payment of the compensation amount directed to  

be paid.       

10. On  behalf  of  the  Respondent  No.l,  it  was  

submitted by Mr. Raghenth Basant, learned Advocate,  

that the judgment of the High Court impugned in  

this  Petition  did  not  warrant  any  interference  

since  the  question  involved  had  been  settled  by  

this Court as early as in 1998 in the case of Hari  

Singh v Sukhbir Singh [(1998) 4 SCC 551], wherein  

it was, inter alia, held that since the imposition  

of compensation under Section 357(3) Cr.P.C. was on  

account of social concern, the Court could enforce  

the  same  by  imposing  sentence  in  default,  

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particularly when no mode had been prescribed in  

the  Code  for  recovery  of  sums  awarded  as  

compensation in the event the same remained unpaid.  

Mr. Basant also referred to the decision of this  

Court in Sugnathi Suresh Kumar v Jagdeeshan [(2002)  

2  SCC  420],  where  the  aforesaid  views  were  

reiterated and it was stated in paragraph 11 of the  

said judgment as follows :-

“11.  When  this  Court  pronounced  in  Hari  Singh  v.  Sukhbir  Singh  (supra)  that  a  Court  may  enforce  an  order  to  pay  compensation  "by  imposing  a  sentence  in  default" it is open to all Courts in India  to follow the said course. The said legal  position would continue to hold good until  it is overruled by a larger Bench 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.”

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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 two other decisions in  Ettappadan  

Ahamedkutty’s  case  (supra)  and  Balraj’s  case  

(supra),  relied  on  by  learned  counsel  for  the  

Petitioner, the same did not also deal with the  

question as to whether a default sentence can be  

imposed when compensation is awarded under Section  

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357(3) Cr.P.C., which is the focal question as far  

as this case is concerned.    

13. Mr. Basant submitted that Section 431 Cr.P.C.  

provides that any money (other than a fine) payable  

by virtue of any order made under the Code and the  

method  of  recovery  of  which  is  not  otherwise  

expressly provided for, shall be recoverable as if  

it were a fine.  Mr. Basant submitted that in that  

view  of  the  matter,  compensation  awarded  under  

Section  357(3)  Cr.P.C.  could  also  be  recovered  

under  Section  431  Cr.P.C.  read  with  Section  421  

Cr.P.C., which provides the methods for recovery of  

fine imposed by the Court from the accused.   In  

this  connection,  reference  was  also  made  to  

Sections 64 to 70 of the Indian Penal Code (IPC),  

which  empower  the  Court  to  impose  a  default  

sentence in case of non-payment of fine.  It was  

submitted  that  default  sentence  is  not  a  

substantive sentence under the IPC and it comes to  

an end the moment fine is paid by the accused.  It  

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was  submitted  that  Section  53  IPC  deals  with  

various  punishments  that  can  be  imposed  on  the  

accused, but default sentence is not one of the  

sentences mentioned in Section 53. Mr. Basant added  

that Section 30 Cr.P.C. also recognizes the power  

of the Court to impose a default sentence on non-

payment of fine.  Referring to the decision of this  

Court  in  Shantilal v  State  of  Madhya  Pradesh  

[(2007) 11 SCC 243], Mr. Basant submitted that it  

had  been  held  in  the  said  case  that  a  default  

sentence is not a sentence as such, but a penalty  

which  a  person  incurs  on  non-payment  of  fine.  

Special reference was made to paragraph 31 of the  

judgment which reads as follows :-

“31.The  next  submission  of  the  learned  counsel  for  the  appellant,  however,  has  substance.   The term of imprisonment in  default  of  payment  of  fine  is  not  a  sentence. It is a penalty which a person  incurs on account of non-payment of fine.  The  sentence  is  something  which  an  offender  must  undergo  unless  it  is  set  aside  or  remitted  in  part  or  in  whole  either  in  appeal  or  in  revision  or  in  other appropriate judicial proceedings or  ‘otherwise’.    A  terms  of  imprisonment  

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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  

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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 enhanced to Rs.10,000/- in 2005, the  

maximum fine that can be imposed by a Magistrate is  

only  Rs.10,000/-.  However,  in  view  of  the  

provisions for awarding compensation under Section  

357(3)  Cr.P.C.,  where  the  power  to  award  

compensation is unlimited, the Magistrate can take  

recourse  to  the  provisions  of  Section  357(3)  

Cr.P.C. to meet a particular situation to ensure  

that justice is done to the parties.  

16. It was submitted that in view of what has been  

stated  hereinbefore,  in  appropriate  cases  the  

Courts are competent to impose a default sentence  

where compensation is awarded under Section 357(3)  

Cr.P.C.

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17. We  have  carefully  considered  the  submissions  

made on behalf of the respective parties. Since a  

decision on the question raised in this petition is  

still in a nebulous state, there appear to be two  

views  as  to  whether  a  default  sentence  on  

imprisonment  can  be  imposed  in  cases  where  

compensation is awarded to the complainant under  

Section  357(3)  Cr.P.C.   As  pointed  out  by  Mr.  

Basant in  Dilip S. Dahanukar’s case (supra), the  

distinction  between  a  fine  and  compensation  as  

understood  under  Section  357(1)(b)  and  Section  

357(3) Cr.P.C. had been explained, but the question  

as to whether a default sentence clause could be  

made  in  respect  of  compensation  payable  under  

Section  357(3)  Cr.P.C,  which  is  central  to  the  

decision in this case, had not been considered.    

18. In the decision in  Rajendran’s case (supra),  

the learned Single Judge of the Kerala High Court  

had  held  that  in  order  to  recover  compensation  

which remains unpaid, the Trial Magistrate could  

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take steps under Section 421 or Section 431 Cr.P.C.  

to recover the same, though ultimately it was held  

that  imprisonment  in  case  of  default  of  such  

payment was not sustainable.

19. In  our  view,  the  provision  for  grant  of  

compensation under Section 357(3) Cr.P.C. and the  

recovery  thereof  makes  it  necessary  for  the  

imposition of a default sentence as was held by  

this Court firstly in Hari Singh’s case (supra) and  

thereafter in Sugnathi Suresh Kumar’s case (supra).  

In our view, the law has been correctly stated in  

the  said  two  decisions.  As  we  have  mentioned  

hereinbefore, when the decision of this Court in  

Hari Singh’s case (supra) was holding the field,  

the  learned  Single  Judge  of  the  High  Court  had  

wrongly relied on the decision of the Kerala High  

Court in  Rajendran’s case (supra).  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  

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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.  

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To  appreciate  the  said  legal  position,  the  

provisions of Section 431 are set out hereinbelow:-

“431. Money ordered to be paid recoverable  as  fine. Any  money  (other  than  a  fine)  payable by virtue of any order made under  this Code, and the method of recovery of  which is not otherwise expressly provided  for, shall be recoverable as if it were a  fine:       Provided that section 421 shall, in its  application to an order under section 359,  by virtue of this section, be construed as  if in the proviso to sub-section (1) of  section 421, after the words and figures  "under section 357", the words and figures  "or an order for payment of costs under  section 359" had been inserted.”

Section 431 makes it clear that any money  other  

than a fine payable on account of an order passed  

under the Code shall be recoverable  as if it were  

a fine which takes us to Section 64 I.P.C.

21. Section  64  IPC  makes  it  clear  that  while  

imposing a sentence of fine, the Court would be  

competent to include a default sentence to ensure  

payment of the same.   For the sake of reference,  

Section 64 IPC is set out hereinbelow:-

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“64.  Sentence  of  imprisonment  for  non- payment  of  fine.--In  every  case,  of  an  offence  punishable  with  imprisonment  as  well  as  fine,  in  which  the  offender  is  sentenced  to  a  fine,  whether  with  or  without imprisonment,  and  in  every  case  of  an  offence  punishable with imprisonment or fine, or  with fine only, in which the offender is  sentenced to a fine,   it shall be competent to the Court which  sentences such offender to direct by the  sentence  that,  in  default  of  payment  of  the  fine,  the  offender  shall  suffer  imprisonment for a certain term, in which  imprisonment  shall  be  in  excess  of  any  other  imprisonment  to  which  he  may  have  been  sentenced  or  to  which  he  may  be  liable under a commutation of a sentence.”

22. The  provisions  of  Sections  357(3)  and  431  

Cr.P.C., when read with Section 64 IPC, empower the  

Court,  while  making  an  order  for  payment  of  

compensation, to also include a default sentence in  

case of non-payment of the same.  The observations  

made by this Court in Hari Singh’s case (supra) are  

as important today as they were when they were made  

and if, as submitted by Dr. Pillay, recourse can  

only be had to Section 421 Cr.P.C. for enforcing  

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the same, the very  object of  Sub-Section (3) of  

Section  357  would  be  frustrated  and  the  relief  

contemplated  therein  would  be  rendered  somewhat  

illusory.  

23. Having  regard  to  the  views  expressed  

hereinabove,  we  hold  that  while  awarding  

compensation  under  Section  357(3)  Cr.P.C.,  the  

Court is within its jurisdiction to add a default  

sentence  of  imprisonment  as  was  held  in  Hari  

Singh’s case (supra).

24. The  Special  Leave  Petition  is  accordingly  

dismissed.

25.The time for making the deposit is extended by  

three months from today.

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 05.05.2009

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