K.A. ABBASversusSABU JOSEPH & ANR.

                        [2010) 6 S.C.R. 822


A                           K.A. ABBAS
                                  v.
                     SABU JOSEPH & ANR.
             (Criminal Appeal No. 1052 of 2010 etc.)

                           MAY 11, 2010
B
             [P. SATHASIVAM AND H.L. DATIU, JJ.]

        Code of Criminal Procedure, 1973:

c       ss. 357(3), 431 and 421 - Sentence of imprisonment for
  default in payment of compensation - Propriety of - Held:
  Imposition of such sentence is permissible - Payment of
  compensation is to accommodate the interest of the victims
  - In view of s. 431 compensation is a/so recoverable as a fine
0 - s. 421 provides for imprisonment for non-payment of fine -
  Sentence I Sentencing.

        s. 357(3) - Power of court to pay compensation - Scope
   and purpose of - Discussed - Use of such power is a
   constructive approach to crimes - Recommendation to the
E courts to use this power liberally so as to meet the ends of
  justice in a better way.

        Negotiable Instruments Act, 1881:

F        s. 138 - Conviction under - By trial court - Imposition of
    fine of Rs. 5 lakhs with default stipulation - As per order of
  appellate court as we// as revision court, accused depositing
  amount of Rs. 2 lakhs towards compensation - Revision court
  directing the accused to deposit Rs. 4 lakhs towards balance
  amount of compensation - On appeal, held: Direction to
G deposit amount of Rs. 4 lakhs is based on factual error -
  Since the accused has already deposited Rs. 2 lakhs, he is
  required to deposit only Rs. 3 lakhs as due compensation.

      In a complaint u/s. 138 of Negotiable Instruments Act,
H 1881, the trial court found3~ applicant-accused guilty
           K.A. ABBAS v. SABU JOSEPH                 823

and sentenced him to simple imprisonment for one year.      A
In addition it directed payment of compensation of Rs. 5
lakhs to the complainant u/s. 357 (3) CrPC and in default
to undergo simple imprisonment for further period of two
months.
                                                            B
     Appellate court at the time of entertaining the appeal
directed the accused to deposit Rs. 1 lakh being a part
of the compensation, which was deposited. Eventually
order of trial· court was confirmed.
             '
     In Revision Petition, High Court by an interim order C
directed the. accused to deposit Rs. 1 lakh. High Court
in the facts ~f the case, modified the sentence to the
effect that if the accused paid the balance compensation
amount of Rs. 4 lakhs within a specified period, the term
of imprisonment would be reduced to the period till the D
rising of the Court and in case of default to undergo
simple )mprisonment for three months by way of default
sentence. Hence, the present appeals by the accused as .
well as by the complainant.
    Partly allowing the appeal of the accused and           E
dismissing the appeal of the complainant, the Court
     HELD: 1.1. Section 357 Cr.P.C. empowers the courts,
not just to impose a fine alone or fine along with the
sentence of imprisonment, but also when the situation       F
arises, direct the accused to pay compensation to the
person who has suffered any loss or injury by reason of
the act for which the accused person has been
sentenced. [Para 15] [831-G-H]
    1.2. Section 357(3) Cr.P.C. empowers the court to       G
award compensation to victims while passing judgment
of conviction. In addition to conviction, the court may
order the accused to pay some amount by way of
compensation to the victim who has suffered by the
                                                            H
    824      SUPREME COURT REPORTS              (2010] 6 S.C.R.


A action of accused. This power of courts to award
  compensation is not ancillary to other sentences but it
  is in addition thereto. This power was intended to do
  something to reassure the victim that he or she is not
  forgotten in the criminal justice system. It is a measure
s of responding appropriately to crime as well of
  reconciling the victim with the offender. It is, to some
  extent, a constructive approach to crimes. It is indeed a
  step forward in criminal justice system. Therefore, it is
  recommended to all the courts to exercise this power
c liberally so as to meet the ends of justice in a better way.
  [Para 19) [834-F-H; 835-A-B]

        Sarwan Singh and Ors. v. State of Punjab AIR 1978 SC
    1525; Ba/raj v. State of U.P. AIR 1995 SC 1935; Hari Kishan
    v. Sukhbir Singh and Ors. AIR 1988 SC 2127, relied on.
D
          Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.
    (2007) 6 sec 528, referred to.

       2.1. A sentence of imprisonment can be granted for
  default in payment of compensation awarded u/s. 357(3)
E Cr.PC. The whole purpose of the provision is to
  accommodate the interests of the victims in the criminal
  justice system. Sometimes the situation becomes such
  that no purpose is served by keeping a person behind
  bars. Instead directing the accused to pay an amount of
F compensation to the victim or affected party can ensure
  delivery of total justice. Therefore, this grant of
  compensation is sometimes in lieu of sending a person
  behind bars or in addition to a very light sentence of
  imprisonment. Hence on default of payment of this
G compensation, there must be a just recourse. Not
  imposing a sentence of imprisonment would mean
  allowing the accused to get away without paying the
  compensation and imposing another fine would be
  impractical as it would mean imposing a fine upon
H
            K.A. ABBAS v. SABU JOSEPH                     825

another fine and therefore would not ensure proper               A
enforcement of the order of compensation. While passing
an order u/s.357(3), it is imperative for the courts to look
at the ability and the capacity of the accused to pay,
otherwise the very purpose of granting an order of
compensation would stand defeated. [Para 27] (841-A-E]           B
    2.2. Section 431 clearly provides that an order of
compensation u/s. 357(3) will be recoverable in the same
way as if it were a fine. Section 421 further provides the
mode of recovery of a fine and the Sectiqn crearly               C
provides that a person can be imprisoned for non-
payment of fine. Therefore, going by the provisions of
Cr.P.C., the intention of the legislature is clearly to ensure
that mode of recovery of a fine and compensation is on
the same footing. [Para 29] (843-B-C]
                                                                 D
    Hari Kishan v. Sukhbir Singh and Ors. AIR 1988 S.C
2127; Ba/raj vs. State of U. P. AIR 1995 SC 1935; Suganthi
Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420; Vijayan v.
Sadanandan K. and Anr. (2009) 6 SCC 652; Shanti/a/ v. State
of M.P. (2007) 11 SCC 243; Ku/dip Kaur v. Surinder Singh         E
and Anr. AIR 1989 SC 232, relied on.

     Ettappadan Ahammedakutty @ Kunhappu v. E.P
Abdullakeya @ Kunhi Bappu (2009) 6 SCC 660,
distinguished.
                                                                 F
   · Radhakrishna Nair vs. Padmanabhan, (2000) 2 KLT
349, referred to.
     R v. Oliver John Huish 1985 (7) Cr. App. R.(S.) 272,
referred to.
                                                                 G
    3. The accused has already deposited Rs.2 lakhs
towards the compensation amount of Rs. 5 lakhs, before
the Judicial Magistrate in pursuance of orders passed by
the Sessions Court and the High Court. Therefore, the
accused needs to pay a further amount of Rs. 3 lakhs             H
    826     SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A instead of 4 lakhs as directed by the High Court, towards
  the compensation amount of Rs. 5 lakhs. [Para 34) [844G
  F-H; 845-A]

      4. Looking into the facts and circumstances of the
  case and the nature of the offence, there is no good
8
  reason to interfere with the quantum of sentence imposed
  and the same is not required to be enhanced. [Para 33]
  [844-E]

                         Case Law Reference:
c AIR 1978 SC 1525           Relied on.         Para 17
    AIR 1995 SC 1935         Relied on.         Paras 18 and 21
    AIR 1988 SC 2127         Relied on.         Paras 19 and 21
D (2001) 6 sec 528           Referred to.       Para 20
    1985 (7) Cr. App.        Referred to.       Para 22
    R. (S.) 272

E (2002) 2 sec 420           Relied on.         Para 23
    (2009) 6 sec 652         Relied on.         Para 24
    (2001) 11 sec 243        Relied on.         Para 25
    AIR 1989 SC 232          Relied on.         Para 26
F
    (2009) 6 sec 660         Distinguished.     Para 32
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1052 of 2010.

G       From the Judgment & Order dated 03.10.2007 of the High
    Court of Kerala at Ernakulam in Crl. Revision Petition No. 1387
    of 2006(C).
                                                                  .,
                                   WITH
H Crl. A. No. 1053 of 2010.
            K.A. ABBAS. v. SABU JOSEPH                      827


    A. Raghunath, T.T.K. Deepak & Co., P.V. Dinesh, P.             A
Rajesh, H.B. Manav, Nishe Rajen Shonger, A.P. Jyothish for
the appearing parties.

    Tr1e Judgment of the Court was delivered by

      H.L. DATTU, J. 1. Leave granted in both the special leave    B
petitions.

    2. These two appeals are directed against the judgment
and order of the High Court of Kerala in Crl. Rev. Petition
No.1387 of 2006 dated 03.10.2007.                                  c
    3. Since parties are common and the legal issues are
identical, they are heard together and disposed of by this
common order.

     4. The factual mc:itrix in brief is as under:- The facts in D
criminal revision petition No.1387 of 2006 may be noticed for
the purpose of disposal of the appeals. The appellant·
(accused) and the respondent (complainant) are employed as
High School assistants in SSHSS school in Moorkanand. The
respondent has filed a complaint against the appellant before E
the learned Magistrate for an offence under Section 138 of the
Negotiable Instruments Act (the 'Act' for short). The
complainant's case is that the appellant, who was due in a sum
of Rs.5,00,000/-, issued a cheque dated 16.06.2003 in respect
of that liability, and when the cheque was presented for F
encashment, the same was returned with an endorsement of
"insufficiency of funds."

     5. The complainant, through his Advocate, had issued
notice to the appellant demanding the payment and that in spite    G
of the service of notice, the appellant failed to pay the amount
covered by the cheque and thus has committed an offence
under Section 138 of the Act and, accordingly, has approached
the learned Magistrate for appropriate reliefs.

    6. The learned Magistrate after taking cognizance of the       H
    828     SUPREME COURT REPORTS                [2010) 6 S.C.R.


A offence and after recording the evidence of the parties and
  after analyzing the same, has found the accused guilty of the
  offence punishable under Section 138 of the Act and sentenced
  to simple imprisonment for one year. In addition to that he had
  directed to pay a compensation of Rs. 5 lakhs to the
B complainant under Section 357(3) of the Cr.PC, and in default,
  to undergo simple imprisonment for a further period of two
  months.

       7. The accused filed appeal before the Sessions Court,
  Manjeri being Criminal Appeal No. 59 of 2004. The Sessions
C Court while entertaining the appeal had directed the petitioner
  to deposit Rs. one lakh within one month being a part of the
  compensation amount. The appellant has complied with that
  order by depositing the amount as directed before the Judicial
  1st Class Magistrate, Manjeri. Eventually, the Sessions Judge
D by his order dated 21.03.2006 confirmed the judgment of
  conviction and sentence passed by learned Magistrate.

       8. The accused preferred revision petition being Criminal
  Revision Petition No. 1387 of 2006 before the High Court of
E Kerala at Ernakulam. The High Court passed an interim order
  directing the petitioner to deposit an amount of Rs. 1 lakh
  before the Judicial Magistrate and, accordingly, the said
  amount was also deposited. The High Court while disposing
  of the Revision Petition has observed that the courts below had
F appreciated the facts correctly and there is no error, illegality
  or impropriety in the finding recorded by the courts below to
  set aside the conviction and sentence. The High court has
  further stated that the only question which requires to be
  answered is, whether a proper sentence has been imposed on
  the accused by the courts below. The court after taking into
G consideration the peculiar facts and circumstances of the case
  has modified the sentence imposed on the accused to the
  extent, that, if the petitioner pays the compensation amount of
  Rs. 4 lakhs (keeping in mind that the petitioner had deposited
  an amount of Rs. 1 lakh before the trial cOOrHowards the
H
    K.A. ABBAS v. SABU JOSEPH [H.L. DATTU, J.]               829


compensation amount) within a period of five months, then he        A
needs to undergo imprisonment only till the rising of the court
and if the petitioner commits default in making the payment
aforesaid, he shall undergo simple imprisonment for three
months.by way of default sentence.
                                                                    B
      9. Being aggrieved, the accused is before this court by way
of Criminal Appeal arising out of SLP (Crl.) No. 334 of 2008.
The main contention of the accused is that this court in Criminal
Appeal No. 1013 of 2007 h~s held, that, while exercising
jurisdiction under Section 357(3) of the Cr.PC, no direction can    C
be issued that in default of payment of compensation, the
accused shall suffer simple imprisonment. In effect the
 Supreme Court has confirmed the judgment passed in the case
of Radhakrishna Nair v. Padmanabhan [(2000) 2 KLT 349],
wherein the Kerala High Court had given a similar finding. The
accused also contends, that, there is a factual error in the        D
judgment of the High court to the effect that the accused had
already' deposited Rs. 2 lakhs towards paying the
 compensation amount pursuant to interim orders of the
 Sessions Court and the High Court respectively, instead the
 High Court has observed that only Rs. 1 lakh has peen              E
deposited.

     10. The complair.ant being aggrieved by the sentence
imposed on the accused has filed SLP (Crl) No. 4099 of 2008.
The contention of the complainant is that, the sentence             F
imposed is very minimal and will defeat the very purpose of
Section 138 of N.I Act and if for any reason the default sentence
is deleted then there is no chance of the accused paying the
compensation . In this regard, the complainant relies on the
observation of this court in the case of Suganthi Suresh Kumar      G
v. Jagdeeshan, ((2002) 2 sec 420].

     11. Heard learned counsel for both sides. The learned
counsel for the accused submits, that, the default sentence
imposed by the learned Judge of the High Court is against the
dicta of this Court in the case of ETTAPPADAN AHAMMED               H
    830      SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A KUTTY@ KUNHAPPU VS. E.P. ABDULLAKEYA@ KUNHI
    BAPPU AND ANOTHER (Criminal Appeal No. 1031 of 2007).
  Per contra, the learned counsel for the respondent ably justifies
  the impugned judgment. The learned counsel also relies on
  the observations made by this Court in the case of Suganthi
B Suresh Kumar Vs. Jagdeeshan, [(2002) 2 SCC 420).

      12. The main question that requires to be considered and
  decided is, whether in default of payment of compensation
  ordered under Section 357 (3) of the Cr.P.C., a default
C sentence can be imposed ?

         13. Let us now look at the relevant provisions and the
    decision of this court on which reliance is placed by learned
    counsel.

D         14. Section 357 of Cr.PC reads:-

          "(1) When a court imposes a sentence of fine or a
          sentence (including a sentence of death) of which fine
          forms a part, the court may, when passing judgment order
          the whole or any part of the fine recovered to be applied-
E
          (a) In defraying the expenses properly incurred in the
          prosecution,

          (b) In the payment to any person of compensation for any
          loss or injury caused by the offence, when compensation
F
          is, in the opinion, of the court, recoverable by such person
          in a Civil Court;

          (c) When, any person is convicted of any offence for having
          caused the death of another person or of having abetted
G         the commission of shelf all offence, in paying in,
          compensation to the persons who are, under the Fatal
          Accidents Act, 1855 (13 of 1855) entitled to recover
          damages from the person sentenced for the loss resulting
          to them from such death;
H
   K.A. ABBAS v. SABU JOSEPH [H.L. DATIU, J.]               831


    (d) When any person is convicted of any offence Which           A
    includes theft, criminal, misappropriation, criminal breach
    of trust or cheating, or of having dishonestly received or
    retained, or of having voluntarily assisted in disposing of
    stolen property knowing or having reason to believe the
    same to be stolen in compensating any bona fide                 B
    purchaser of such property for the loss of the same if such
    property is restored to the possession of the person
    entitled thereto.

    (2) If the fine is imposed in a case, which is subject to       C
    appeal, no such payment shall be made before the period
    allowed for presenting the appeal his elapsed, or if an,
    appeal be presented, before the decision of the appeal.

    (3) When a court imposes a sentence, of which fine does
    not form a part, the court may, when passing judgment           D
    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 his been so
    sentenced.                                                      E

    (4) An order under this section may also be made by all
    Appellate Court or by the High Court or Court of Session
    when exercising its powers of revision.

    (5) At the time of awarding compensation in. any                F
    subsequent civil suit relating to the same matter, the court
    shall take into account any sum paid or recovered as
    compensation under this section."

     15. Essentially the section empowers the courts, not to just   G
impose a fine alone or fine along with the sentence of
imprisonment, bat also when the situation arises, direct the
accused to pay compensation to the person who has suffered
any loss or injury by reason of the act for which the accused
person has been sentenced.
                                                                    H
    832      SUPREME COURT REPORTS                [2010] 6 S.C.R.

A        16. The above view we have taken is supported by the
    decisions of this Court, to which we presently refer.

        17. In the case of Sarwan Singh and ors. v. State of
    Punjab (AIR 1978 SC 1525), this court has noticed the object
    and genesis of the section.
8
          "10. The law which enables the Court to direct
          compensation to be paid to the dependants is found in
          Section 357 of the CrPC (Act 2 of 1974). The
          corresponding provision in the 1898 Code was Section
c         545. Section 545 of the CrPC (Act 5 of 1898) was
          amended by Act 18 of 1923 and by Act 26 of 1955. The
          amendment which is relevant for the purpose of our
          discussion is 545(1 )(bb) which, for the first time was
          inserted by Act 26 of 1955. By this amendment the court
D         is enabled to direct the accused, who caused the death
          of another person, to pay compensation to the persons who
          are, under the Fatal Accidents Act, entitled to recover
          damages from the persons sentenced, for the loss
          resulting to them from such death. In introducing the
E         amendment, the Joint Select Committee stated "when
          death has been caused to a person, it is but proper that
          his heirs and dependants should be compensated, in
          suitable cases, for the loss resulting to them from such
          death, by the person who was responsible for it. The
F         Committee proceeded to state that though Section 545 of
          the Code as amended in 1923 was intended to cover such
          cases, the intention was not however very clearly brought
          out and therefore in order to focus the attention of the
          courts on this aspect of the question, the Committee have
          amended Section 545 and it has been made clear that a
G
          fine may form a part of any sentence including a sentence
          of death and it has also been provided that the persons
          who are entitled under the Fatal Accidents Act, 1855, to
          recover damages from the person sentenced may be
           compensated out of the fine imposed. It also expressed
H
K.A. ABBAS v. SABU JOSEPH [H.L. DATIU, J.]              833


its full agreement with the suggestion that at the time of      A
awarding judgment in a case where death has resulted
from homicide, the court should award compensation to
the heirs of the deceased. The Committee felt that this will
result in settling the claim once for all by doing away with
the need for a further claim to a civil Court, and avoid        B
needless worry and expense to both sides. The Committee
further agreed that in cases where the death is the result
of negligence of the offender, appropriate compensation
should be awarded to the heirs. By the introduction of
Clause (bb) to Section 545(1 ), the intention of the            c
legislature was made clear that, in suitable cases, the heirs
and dependents should be compensated for the loss that
resulted to them from the death, from a person who was
responsible for it. The view was also expressed that the
court should award compensation to the heir of the
                                                                0
deceased so that their claims would be settled finally. This
object is sought to be given effect to by Section 357 of the
new Code (Act 2 of 1973). Section 357(3) provides that
when a court imposes a sentence, of which fine does not
form a part, the Court may, when passing judgment, order        E
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 Joss or injury by reason of the act
for which the accused person has been so sentenced. The
object of the section therefore, is to provide compensation
payable to the persons who are entitled to recover              F
damages from the person sentenced even though fine
does not form part of the sentence. Though Section 545
of 1898 Code enabled the court only to pay compensation
out of the fine that would be imposed under the law, by
Section 357(3) when a Court imposes a sentence, of              G
which fine does not form a part, the Court may direct the
accused to pay compensation. In awarding compensation
it is necessary for the court to decide whether the case is
a fit one in which compensation has to be awarded. If it is
found that compensation should be paid, then the capacity       H
    834       SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A         of the accused to pay a compensation has to be
          determined. In directing compensation, the object is to
          collect the fine and pay it to the person who has suffered
          the loss. The purpose will not be served if the accused is
          not able to pay the fine or compensation for, imposing a
s         default sentence for non-payment of fine would not achieve
          the object. If the accused is in a position to pay the
          compensation to the injured or his dependents to which
          they are entitled to, there could be no reason for the Court
          not directing such compensation. When a person, who
c         caused injury due to negligence or is made vicariously
          liable is bound to pay compensation it is only appropriate
          to direct payment by the accused who is guilty of causing
          an injury with the necessary Mens Rea to pay
          compensation for the person who has suffered injury."
D      18. In Ba/rajv. State ofUP(AIR 1995SC1935), this court
  has held, that, Section 357(3) Cr. P.C. provides for ordering
  of payment by way of compensation to the victim by the
  accused. It is an important provision and it must also be noted
  that power to award compensation is not ancillary to other
E sentences but it is in addition thereto.

       19. In Hari Kishan v. Sukhbir Singh and ors. (AIR 1988
  SC 2127), this court has observed that, Sub-section (1) of
  Section 357 provides power to award compensation to victims
F of the offence out of the sentence of fine imposed on accused.
  In this case, we are not concerned with Sub-section (1 ). We
  are concerned only with Sub-section (3). It is an important
  provision but Courts have seldom invoked it. Perhaps due to
  ignorance of the object of it. It empowers the Court to award
G compensation to victims while passing judgment of conviction.
  In addition to conviction, the Court may order the accused to
  pay some amount by way of compensation to victim who has
  suffered by the action of accused. It may be noted that this
  power of Courts to award compensation is not ancillary to other
H sentences but it is in addition thereto. This power was intended
   K.A. ABBAS v. SABU JOSEPH [H.L. DATTU, J.]                     835


to do something to reassure the victim that he or she is not              A
forgotten in the criminal justice system. It is a measure of
responding appropriately to crime as well of reconciling the
victim with the offender. It is, to some extent, a constructive
approach to crimes. It is indeed a step forward in our.criminal
justice system. We, therefore, recommend to all Courts to                 B
exercise this power liberally so as to meet the ends of justice
in a better way.

     20. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and
Anr., ((2007) 6 SCC 528], this court differentiated between fine          C
arrd compensation, and while doing so, has stated that the
distinction between Sub-Sections (1) and (3) of Section 357
is apparent. Sub-section (1) provides for application of an
amount of fine while imposing a sentence of which fine forms
a part; whereas Sub-Section (3) calls for a situation where a
Court imposes a sentence of which fine does not form a part               D
of the sentence.

     The court further observed:-

     "19. Compensation is awarded towards sufferance of any               E
     loss or injury by reason of an act for which an accused
     person is sentenced. Although it provides for a criminal
     liability, the amount which has been awarded as
     compensation is considered to be recourse of the victim
     in the same manner which may be granted in 3 civil suit."
                                                                          F
     Finally the court summed up:-

     "22. We must, however, observe that there exists a
     distinction between fine and compensation, although, in a
     way it seeks to achieve the same purpose. An amount of               G
     compensation can be directed to be recovered as a 'fine'
     but the legal fiction raised in relation to recovery of fine only,
     it is in that sense 'fine' stands on a higher footing than
     compensation awarded by. the Court."

     21.   Moving over to the question, whether a default                 H
    836       SUPREME COURT REPORTS                  [2010] 6 S.C.R.

A sentence can be imposed on default of payment of
  compensation, this court in the case of Hari Singh v. Sukhbir
  Singh and in Ba/raj v. State of U.P, has held that it was open
  to all courts in India to impose a sentence on default of payment
  of compensation under sub-section (3) of Section 357. In Hari
B Singh v. Sukhbir Singh (supra), this court has noticed certain
  factors which requires to be taken into consideration while
  passing an order under the section:-

          "11. The payment by way of compensation must, however,
          be reasonable. What is reasonable, may depend upon the
c         facts and circumstances of each case. The quantum of
          compensation may be determined by taking into account
          the nature of crime, the justness of claim by the victim and
          the ability of accused to pay. If there are more than one
          accused they may be asked to pay in equal terms unless
D         their capacity to pay varies considerably. The payment
          may also vary depending upon the acts of each accused.
          Reasonable period for payment of compensation, if
          necessary by instalments, may also be given. The Court
          may enforce the order by imposing sentence in default."
E
         22. This position also finds support in the case of R v.
    Oliver John Huish; [1985] 7 Cr. App. R.(S.) 272. The Lord
    Justice Croom - Johnson speaking for the Bench has
    observed:
F         "When compensation orders may possibly be made the
          most careful examination is required. Documents should
          be obtained and evidence either on affidavit or orally
          should be given. The proceedings should, if necessaryt
          be adjourned, in order to arrive at the true state of the
G         defendant's affairs.
          Very often a compensation order is made and a very light
          sentence of imprisonment is imposed, because the court
          recognizes that if the defendant is to have an opportunity
H         of paying the compensation he must be enabled to earn
   K.A. ABBAS v. SABU JOSEPH [H.L. DATIU, J.]                 837


    the money with which to do so. The result is therefore an         A
    extremely light sentence of imprisonment. If the
    compensation order turns out to be virtually worthless, the
    defendant has got off with a very light sentence of
    imprisonment as well as no order of compensation. In
    other words, generally speaking, he has got off with              B
    everything."

    23. The law laid down in Hari Singh v. Sukhbir Singh
(supra) was reiterated by this court in the case of Suganthi
Suresh Kumar v. Jagdeeshan, [(2002) 2 SCC 420]. The court             C
observed:-

    "5. In the said decision this Court reminded all concerned
    that it is well to remember the emphasis laid on the need
    for making liberal use of Section 357(3) of the Code. This
    was observed by reference to a decision of this Court in          D
    1989 Cri LJ 116 Hari Singh Vs. Sukhbir Singh. In the saidv
    decision this Court held as follows:-

    "The quantum of compensation may be determined by
    taking into account the nature of crime, the justness of the      E
    claim by the victim and the ability of accused to pay. If there
    are more than one accused they may be asked to pay in
    equal terms unless their capacity to pay varies
    considerably. The payment may also vary depending upon
    the acts of each accused. Reasonable period for payment
    of compensation, if necessary by instalments, may also be
                                                                      F
    given. The court may enforce the order by imposing
    sentence in default."

                                            (emphasis supplied)
                                                                      G
    "10. That apart, Section 431 of the Code has only
    prescribed that any money (other than fine) payable by
    virtue of an order made under the Code shall be
    recoverable "as if it were a fine". Two modes of recovery
    of the fine have been indicated in Section 421(1) of the          H
    838       SUPREME COURT REPORTS                  [201 O] 6 S.C.R.


A         Code. The proviso to the Sub-section says that if the
          sentence directs that in default of payment of the fine, the
          offender shall be imprisoned, and if such offender has
          undergone the whole of such imprisonment in default, no
          court shall issue such warrant for levy of the amount."
B
          The court further held:-

          "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
c         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
D         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)
          KLT 431. It is unfortunate that when the Sessions judge has
          correctly done a course in accordance with the discipline
E         the Single judge of the High Court has incorrectly reversed
          it."

       24. In order to set at rest the divergent opinion expressed
  in Kunhappu's case (supra), this Court in the case of Vijayan
  v. Sadanandan K. and Anr., [(2009) 6 SCC 652], after noticing
F the provision of Section 421 and 431 of Cr.PC, which dealt with
  mode of recovery of fine and Section 64 of IPC, which
  empowered the courts to provide for a sentence of
  imprisonment on default of payment of fine, the Court stated:

G         "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
H         compensation is awarded to the complainant under
  K.A. ABBAS v. SABU JOSEPH [H.L. DATIU, J.]                . 839


    Section 357(3) Cr.P.C. As pointed out by Mr. Basant in          A
    Di/ip S. Dahanukar's case, 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           B
    357(3) Cr.P.C, which is central to the decision in this case,
    had not been considered."

    The court further held:-

    "22. The provisions of Sections 357(3) and 431 Cr.P.C., 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 D
    when they were made and if, as submitted by Dr. Pillay,
    recourse can only be had to Section 421 Cr.P.C. for
    enforcing the same, the very object of Sub-section (3) of
    Section 35~\ wbuld be frustrated and the relief
    contemplated therein would be rendered somewhat E
    illusory."

     25. In Shanti/a/ v. State of M.P., [(2007) 11 SCC 243], it _
is stated, that, the sentence of imprisonment for default in
payment of a fine or compensation is different from a normal
sentence of imprisonment. The court also delved into the F
factors to be taken into consideration while passing an order
under Section 357(3) of the Cr.PC. This court stated:-

    'The term of imprisonment in default of payment of fine is
    not a sentence. It is a penalty which a person incurs on        G
    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 term of imprisonment ordered in default of payment of         H
    840       SUPREME COURT REPORTS                     [2010) 6 S.C.R.


A         fine stands on a different footing. A person is required to
          undergo imprisonment either because he is unable to pay
          the amount of fine or refuses to pay such amount. He,
          therefore, can always avoid to undergo imprisonment in
          default of payment of fine by paying such amount. It is,
B         therefore, not only the power, but the duty of the court to
          keep in view the nature of offence, circumstances under
          which it was committed, the position of the offender and
          other relevant considerations before ordering the offender
          to suffer imprisonment in default of payment of fine."
c        26. In Ku/dip Kaur v. Surinder Singh and anr. (AIR 1989
    SC 232), in the context of Section 125 Cr.PC observed that
    sentencing a person to jail is sometimes a mode of
    enforcement. In this regard the court stated:-

D         "6. A distinction has to be drawn between a mode of
          enforcing recovery on the one hand and effecting actual
          recovery of the amount of monthly allowance which has
          fallen in arrears on the other. Sentencing a person to jail
          is a 'mode of enforcement'. It is not a 'mode of satisfaction'
E         of the liability. The liability can be satisfied only by making
          actual payment of the arrears. The whole purpose of
          sending to jail is to oblige a person liable to pay the
          monthly allowance who refuses to comply with the order
          without sufficient cause, to obey the order and to make the
F         payment. The purpose of sending him to jail is not to wipe
          out the liability which he has refused to discharge. Be it
          also realised that a person ordered to pay monthly
          allowance can be sent to jail only if he fails to pay monthly
          allowance 'without sufficie9t cause' to comply with the
          order. It would indeed be strange to hold that a person who
G
          'without reasonable cause' refuses to comply with the order
          of the Court to maintain his neglected wife or child would
          be absolved of his liability merely because he prefers to
          go to jail. A sentence of jail is no substitute for the recovery
          of the amount of monthly allowance which has fallen in
H         arrears."
   K.A. ABBAS v. SABU JOSEPH [H.L. DATIU, J.]                   841


     27. From the above line of cases, it becomes very clear,           A·
that, a sentence of imprisonment can be granted for default in
payment of compensation awarded under Section 357(3) of
Cr.PC. The whole purpose of the provision is to accommodate
the interests of the victims in the criminal justice system.
Sometimes the situation becomes such that there is"no purpose           B
is served by keeping a person behind bars. Instead directing
the accused to pay an amount of compensation to the victim
or affected party can ensure delivery of total justice. Therefore,
this grant of compensation is sometimes in lieu of sending a
person behind bars or in addition to a very light sentence of           c
imprisonment. Hence on default of payment of this
compensation, there must be a just recourse. Not imposing a
sentence of imprisonment would mean aUowing the accused
to get away without paying the compensation and imposing
another fine would be impractical as it would mean imposing
                                                                        0
a fine upon another fine and therefore would not ensure proper
enforcement of the order of compensation. While passing an
order under Section 357(3), it is imperative for the courts to
 look at the ability and the capacity of the accused to pay the
same amount as has been laid down by the cases above,
otherwise the very purpose of granting an order of                      E
compensation would stand defeated.

     28. Section 421 of Cr.PC reads:-

     "421. Warrant for levy of fine.                                    F
     (1) When an offender has been sentenced to pay a the
     court passing the sentence make action for the recovery
     of the fine in either or- both of the following ways, that is to
     say, it may-
                                                                        G
     (a) Issue a warrant for the levy of the amount by attachment
     and sale of any movable property belonging to the offender
            I

     (b) Issue a warrant to the Collector of the district,
     authorizing him to realize the amount as arrears of land           H
    842        SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A         revenue from the movable or immovable property, or both
          of the defaulters;

          Provided that, if the sentence directs that in default of
          payment of the fine, the offender shall be imprisoned, and
          if such offender has undergone the whole of such
B
          imprisonment in default, no court shall issue such warrant
          unless, for special reasons to be recorded in writing, it
          considers it necessary so to do, or unless it has made an
          order for the payment of expenses or compensation out
          of the fine under section 357.
c
          (2) The State Government may make rules regulating the
          manner in which warrants under clause (a) of sub-section
          (1) are to be executed, and for the summary determination
          of any claims made by any person other than the offender
D         in respect of any property attached in execution of such
          warrant.

          (3) Where the court issues a warrant to the Collector under
          clause (b) of sub-section (1), the Collector shall realize the
          amount in accordance with the law relating to recovery of
E
          arrears of land revenue, as if such warrant were a
          certificate issued under such law:

          Provided that no such warrant shall be executed by the
          arrest or detention in prison of the offender."
F
          Section 431 of Cr.PC reads:-

      "431. Money ordered to be paid recoverable as a fine.

      Any money (other than a fine) payable by virtue of any order
G     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
H     order under section 359, by virtue of this section, be
   K.A. ABBAS v. SABU JOSEPH [H.L. DATTU, J.]                 843


    construed as if in the proviso to sub-section (1) of section      A
    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."                            ·

     29. Section 431 clearly provides that an order of                B
compensation under Section 357 (3) will be recoverable in the
same way as if it were a fine. Section 421 further provides the
mode of recovery of a fine and the section clearly provides that
a person can be imprisoned for non-payment of fine. Therefore,
going by the provisions of the code, the intention of the
legislature is clearly to ensure that mode of recovery of a fine      C
and compensation is on the same footing. In light of the
aforesaid reasoning, the contention of the accused that there
can be no sentence of imprisonment for default in payment of
compensation under Section 357 (3) should fail.
                                                                      D
     30. A similar position is also prevalent in other countries.
In the United Kingdom, Section 82 (3) of Magistrates' Courts
Act, 1980 allows for a sentence of imprisonment for default in
payment of a fine or any financial order. The Section reads:-
                                                                      E
    "Where on the occasion of the offender's conviction a
    magistrates' court does not issue a warrant of commitment
    for a default in paying any such sum as aforesaid or fix a
    term of imprisonment under the said Section 77(2) which
    is to be served by him in the event of any such default, it
    shall not thereafter issue a warrant of commitment for any        F
    such default or for want of sufficient distress to satisfy such
    a sum unless:-

     (a) he is already serving a sentence of custody for life, or
     a term of imprisonment, detention in a young offender            G
     institution, or detention under Section 9 of the Criminal
     Justice Act, 1982; or

     (b) the court has since the conviction inquired into his
     means in his presence on at least one occasion."
                                                                      H
    844     SUPREME COURT REPORTS                 [201 O] 6 S.C.R.


A        31. In Australia, under Section 4 of the Sentencing Act,
    1997 the definition of "fine" includes a compensation order.
    Procedure for enforcement of fines is provided for in Section
    47(7) of the Act and provides for a sentence of imprisonment
    or default in payment of fine.
B
       32. The Learned Counsel for the accused has placed
  reliance on the decision of this court in the case of Ettappadan
  Ahammedakutty v. E.P Abdullakeya (Criminal Appeal no.
  1013 of 2007), which reiterated the position taken by the Kerala
C High Court in a case reported in 2000 (2) KLT 349; wherein it
  was held that no sentence of imprisonment can be passed on
  default of paying compensation awarded under Section 357(3).
  But in light of several decisions reiterating the opposite stand,
  this case needs to be viewed in isolation and cannot be taken
  to be against the established position preferred by the Supreme
D Court on this issue over a period of two decades.

       33. The complainant in the Civil Appeal arising out of
  S.L.P.(Crl.) No.4099 of 2008 has contended that the sentence
  imposed for default in payment of the compensation amount
E is very minimal and, therefore, the sentence imposed by the
  High Court requires to be enhanced. In our considered view,
  looking into the facts and circumstances of the case and the
  nature of the offence, we find no good reason to interfere with
  the quantum of sentence imposed.
F       34. The contention of the accused as regards a factual
  error made by the High Court, wherein the High Court stated
  that the accused had deposited Rs. 1 lakh towards the
  compensation amount requires to be accepted. It is to be noted
  that the accused has already deposited Rs.2 lakhs towards the
G compensation amount of Rs. 5 lakhs, before the Judicial
  Magistrate in pursuance of orders passed by the Sessions
  Court and the High Court. Therefore, the appeal of the accused,
  i.e. Criminal Appeal arising out of Special Leave Petition (Crl.)
  No.334 of 2008 is allowed to the extent that he needs to pay a
H further amount of Rs. 3 lakhs towards the compensation amount
   K.A. ABBAS v. SABU JOSEPH [H.L. DATTU, J.]             845


of Rs. 5 lakhs. The remaining part of the sentence passed by     A
the High Court requires to be confirmed.

     35. In th<::i result, the conviction and sentence passed
against the accused in Criminal Appeal arising out of
S.L.P.(Crl.) No.334 of 2008 are confirmed with the
                                                                 8
modification, as observed in the earlier paragraph. Criminal
Appeal arising out of S.L.P.(Crl.) No.334 of 2008 is,
accordingly, partly allowed. Since, we are of the opinion that
modification of the sentence is not warranted in the facts and
circumstances of the case, Criminal Appeal arising out of
Special Leave Petition (Crl.) No. 4099 of 2008 filed by the      C
complainant is dismissed.

K.K.T.                                  Appeal disposed of.