Sabina, J. - (1.) Petitioners had faced trial qua commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short- " the Act") in a complaint filed by the respondents.
(2.) Trial Court, vide judgment dated 18.3.2006 convicted the petitioners qua commission of offence punishable under Section 138 of the Act and vide order dated 20.3.2006, petitioners were sentenced to undergo simple imprisonment for a period of six months with a fine of INR 5,000/-. Petitioners were further sentenced to pay INR 7,00,000/- to the complainant as compensation under Section 357 (3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.). Appellate Court vide judgment dated 31.5.2007 upheld the conviction and sentence of the petitioners under Section 138 of the Act. Hence, the present revision petition by the petitioners.
(3.) Learned counsel for the petitioners, during the course of arguments, has not challenged the conviction of the petitioners under Section 138 of the Act but has submitted that sentence qua imprisonment of the petitioners be reduced to the period already undergone by them. Learned counsel has further submitted that it was evident from the order passed by the trial Court dated 20.3.2006 that the petitioners had been ready to pay the cheque amount in question but the complainant had demanded INR 18,00,000/-. The cheque amount in question was INR 4,94,501/- but the petitioners have already paid INR 5,00,000/- to the complainant in June, 2007. Learned counsel has further submitted that the order passed by the trial Court, while allowing compensation to the complainant to the tune of INR 7,00,000/-, was liable to be set aside as the same could not have been passed under Section 357 (3) Cr.P.C. In this regard, learned counsel has placed reliance on the decision of the Apex Court in Sivasuriyan v. Thangavelu (2004) 13 SCC 795, wherein, it was held as under:- "4. In view of the submissions made, the only question that arises for consideration is whether the court can direct payment of compensation in exercise of power under sub-section (3) of Section 357 in a case where fine already forms a part of the sentence. Apart from subsection (3) of Section 357 there is no other provision under the Code where under the court can exercise such power: "357. (3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment,order the accused person to pay, by way of compensation, such amount as may be specified in the order of the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced." 5. On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part. In the case in hand, a court having sentenced to imprisonment, as also fine, the power under sub-section (3) of Section 357 could not have been exercised. In that view of the matter, the impugned direction of the High Court directing payment of compensation to the tune of ' one lakh by the appellant is set aside.";