Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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kavita (.)     23 December 2013

Compensation under 138 ni act

Compensation and conviction of punishment is granted and complainant wants to recover amount of compensation under 138NI act. How can amount recover from accused by filing and application in court?



Learning

 7 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     23 December 2013

Dear Kavita

after filing the application u/s 357 of Crpc.

357. Order to pay compensation.

(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-

(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 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 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;

(d) When any person is convicted of any offence which 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 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 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 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 reason of the act for which the accused person his been so sentenced.

(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 subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section.

STATE AMENDMENTS

ANDHRA PRADESH:

(i) In subsection (1), after the words “the court may”, the expression “and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in Clauses (24) and (25) of Article 366 of the Constitution of Indian except when both the accused person and the person against whom an offence is committed belong either to such castes or tribes, the court shall,” shall be inserted, and

(ii) For Sub-section (3), the following sub-section shall be substituted, namely-

“(3) When a court imposes a sentence, of which fine does not form a part, the court may, and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in Clauses (24) and (25) of Article 366 of the Constitution of India, the court shall, when 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 has suffered any loss or injury by reason of the act for which the accused person has been so sentenced:

Provided that the court may not order the accused person to pay by way of compensation any amount, if’ both the accused person and the person against whom an offence is committed belongs either to the Scheduled Castes or the Scheduled Tribes.”

[Vide A.P. Act 21 of 1993 (w.e.f. 3-9-1993)].

BIHAR

In Sub-section (I) of’ section 357, the following provision shall be added, namely.

“Provided that the person against whom an offence is committed, belongs to Scheduled Castes and to Scheduled Tribes as defined in clause (24) and clause (25) of’ Article 366 of the Constitution, the Court shall at the time of Judgment pass order that the entire amount of fine realized or any part if it will he untilised for the benefit of such person by way of compensation.

[Vide Bihar Act 9 of 1985, sec. 2 (w.e.f. 13-8-1985)]

KARNATAKA:

(1) In Sub Section (1), after the words “the court may” the brackets, figures and words “and where the person against whom an offence is committed belongs to a Scheduled Caste or Scheduled Tribe as defined in clauses (24) and 25 of Article 366 of the Constitution and the accused person doesn’t belong to a Scheduled Caste or a Scheduled Tribe the Court shall” shall be inserted.

(2) For sub-section (3), the following sub-section shall be substituted, namely: -

“(3) When a court imposes a sentence of which the fine does not form a part, the Court may, and where a person against whom an offence is committed belongs to a Scheduled Caste or a Schedule a Tribe as defined in clauses (24) and (25) of Article 366 of the constitution and the accused person does not belong to a Schedule Caste or a Schedule Tribe, the Court shall when passing Judgment order the accused person to paid, 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.”

[Vide Karnataka Act 27 of 1987, of sec. 2 (w.e.f. 22-7-1987)].

MADHYA PRADESH.

In section 357, -

(i) In sub-section (1), for the brackets, figure and words “(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 replied” the brackets, figures and words “(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, and where a person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe as defined in clauses (24) and (25) and of Article 366 of the Constitution except when both the accused person and the person against whom an offence is committed belong either to such Castes or Tribes, the court shall, when passing judgment, order the whole or any part of the fine recovered to be applied shall be substituted; and

(ii) For sub-section (3), the following sub-section shall be substituted, namely.

“(3) When court imposes a sentence, of which fine does not form a part, the court may, and where a person against whom an offence is committed belongs to Scheduled Castes or Scheduled Tribes as defined in clauses (24) and (25) of Article 366 of the Constitution, the court shall when 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 has suffered any loss or injury by reason of the act for which the accused person has been so sentenced:

Provided that the court may not order the accused person to pay by way of compensation any amount if both the accused person and the person against whom an offence is committed belong either to the Scheduled Castes or the Scheduled Tribes.”

[Vide M.P. Act 29 of 1978 (w.e.f. 5-10-1978)].

RAJASTHAN:

In section 357,-

(i) In sub-section (1), between the expression “the court may” and the expression “when passing judgment” the expression “and where the person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe but the accused person does not so belong, the court shall” shall be inserted and

(ii) In Sub-section (3), between the expression “the court may,” and the expression “when passing judgment” the expression “and where the person against whom an offence is committed” belongs to a Scheduled Caste or a Scheduled Tribe but the accused person does not so belong, the court shall”, shall be inserted.

[Vide Rajasthan Act No. 3 of 1993, sec. 2].

UTTAR PRADESH:

In section 357, -

(a) In sub-section (1), after clause (d), the following proviso shall be inserted, namely.

“Provided that if a person who may receive compensation under clauses (b) (c) and (d) a member of the Scheduled Castes or the Scheduled Tribes and the person sentenced is not a member of such Castes or Tribes, the court shall order the whole or any part of the fine recovered to be applied in payment of such compensation.”

(b) For subsection (3), the following sub-section shall be substituted, namely.

“(3) When the court imposes a sentence, of which fine does not form a part, the court may and where the person who has suffered the loss or injury is a member of the Scheduled Castes or the Scheduled Tribes and the person sentenced is not a member of’ such Castes or Tribes the court shall, when passing judgment, order the person sentenced 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 person has been so sentenced.”

(c) After subsection (5) the following Explanation shall be inserted, namely.

” Explanation. for the purposes of this section the expressions “Scheduled Castes” and “Scheduled Tribes” shall have the meanings respectively assigned to them in clauses (24) and (25) of’ Article 366 of the Constitution.”

[Vide U.P. Act 17 of' 1992, sec. 2].

WEST BENGAL:

(a) In sub-section (1), for the words and brackets “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 orders the whole or any part of the fine recovered to be applied” the words and brackets “When a court imposes a sentence or fine or a sentence (including it sentence of death) of’ which fine forms a part, the court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Schedule Tribes, except when both the accused person and the person against whom an offence has been committed belong either to Scheduled Castes or to Scheduled Tribes shall, when passing judgment order the whole or any part of the fine recovered to be applied-”shall he substituted.

(b) For sub-section (3) the following subsection shall be substituted, namely.

(3) When a court imposes a sentence, of’ which fine does not form a part, the court may, and where the person against whom an offence has been committed belongs to Scheduled Castes or Scheduled Tribes, shall, when 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 has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

Provided that the court may not order the accused person to pay by way of compensation any amount if both the accused person and the person, against whom an offence has been committed belongs either to Scheduled Castes or to Scheduled Tribes.”

(c) After subsection (5), the following Explanation shall he inserted, namely.

Explanation. for the purposes of’ the section the expression “Scheduled Castes” and “Scheduled Tribes” shall have the meaning respectively assigned to them in clauses and (25) of’ Article 366 of the constitution of India”.

Rutumbhara Nayak (lawyer)     24 December 2013

Hi Kavita.How are you? The Ingredients of offence under section 138 are as follows: 1. The cheque should have been issued for the discharge , in whole or part, of any debt or other liability 2. The cheque should have been presented within a period of six months or within its validity period whichever is earlier. 3. The payee or holder in due course should have issued a notice in writing to the drawer within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. 4. After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipt of the said notice. When cause of action arises for filing a complaint? Once the drawer fails to make payment of demanded sum, cause of action for filing complaint under NI Act arises on expiry of the notice period and remains till 30 days. Complaint should be filed within 30 days from the date of cause of action as per Section 142 of NI Act. In case of delay, this Section gives power to the magistrate to condone the delay, if sufficient cause is shown by the complainant. Recent trend of apex court judgments Recently, the Supreme Court in the case of MSR Leathers vs S. Palaniappan & Anr, reversed its earlier judgment in Sadanandan Bhadran vs Madhavan Sunil Kumara (1998) SCC514 and held that a payee or holder of a cheque can now issue a statutory notice to the drawer each time the cheque is dishonoured and institute proceedings on the basis of a second or successive statutory notice as well. This was intended to favor the payee as he can overcome 30 days limitation period with each presentation. Commission of offence & procedure for filing of complaint: An offence under the NI Act shall be deemed to have been committed, if the following conditions are satisfied (Section 138): Cheque must have been drawn by a person (the drawer) in favor of a payee on his bank account for making payment of either in whole or partial discharge of a legally enforceable debt. Cheque must have been returned by the banker to the payee or holder in due course due to insufficient balance in the account of the drawer or it exceeds the arrangement he had with the bank. You can call me at 09555 507 507 or send me a mail at info@lawkonect.com to discuss futher on this matter.

T. Kalaiselvan, Advocate (Advocate)     24 December 2013

The provisions of section 138 of NI act is basically criminal in nature hence the punishments and fines go with it, a sentence may be of imprisonment with fine, but it is not necessary for the pass an order for compensation u/s 357 towards the cheque amount though there is a provision that the compensation upto two times of the cheque amount can be granted.  If no relief is given in cheque bounce case, the option is to approach civil court with a suit  for recovery of money.

MOHANA SUNDARAM (Advocate High court Madras. M-9840908555)     26 December 2013

compensation can be recovered from a person just like recovery of fine. 

Deepthisudan (housewife)     19 August 2015

Originally posted by : T. Kalaiselvan, Advocate

The provisions of section 138 of NI act is basically criminal in nature hence the punishments and fines go with it, a sentence may be of imprisonment with fine, but it is not necessary for the pass an order for compensation u/s 357 towards the cheque amount though there is a provision that the compensation upto two times of the cheque amount can be granted.  If no relief is given in cheque bounce case, the option is to approach civil court with a suit  for recovery of money.

Dear Mr.Kalaiselvan,

 In cheque bounce case, whether a case can be filed  simultaneously u/s.138 of NI act in criminal court as well as in civil court for recovery?

Thanks in advance.

Deepthisudan

Vikas Hedau (Advocate)     03 May 2016

First of all, according to provisions of 138 NI act there is no provision for compensation, and compensation is distinct from fine , compensation can only be granted after determination of fine  compensation not contemplated by 138 but same can be paid out of amount of fine. and its process for recovery of fine  is given under

section 421 Crpc as : " Warrant for levy of fine.

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
 
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: 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 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.
(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 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 realise the amount in accordance with the law relating to recovery of 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.

"

Siddharth Dev (Advocate)     13 May 2016

respected member

i suggest that you should file recovery suit under civil provisions


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