Indocount Finance Ltd. vs Mrs. Sushma Kapoor and Another

Kailash Gambhir, J.—By way of the present petition filed u/s 482 Cr.P.C. the petitioner seeks setting aside of order dated 21.3.2007 passed by the learned court of Sh. Rajiv Mehra, Addl. Sessions Judge, Tis Hazari Court, Delhi in Criminal Revision No. 24/2007 and order dated 12.2.2007 passed by the court of Ms. Nirja Bhatia, Metropolitan Magistrate, Tis Hazari Courts, Delhi in complaint case No. 661/01/2006.

The grievance raised by the petitioner in the present petition is not only shocking but baffling as well. What prompted the petitioner to first file a revision petition and then the present petition u/s 482 of the Code of Criminal Procedure is that the Metropolitan Magistrate at the time of finally deciding the complaint of the petitioner filed u/s 138 Negotiable Instrument Act based on the settlement, totally overlooked the claim of the petitioner in the sum of Rs. 16,000/- payable by the respondent towards charges of dishonoured cheques, interest and litigation expenses etc. It is not in dispute that the complaint case filed by the petitioner based on the dishonoured cheque of Rs. 79,332/- was taken up by the Lok Adalat, presided over by the same Magistrate for the purposes of settlement between the parties. Pursuant to the efforts made by the Lok Adalat respondent had deposited the bankers'' cheque of Rs. 79,332/- dated 3.2.2007 drawn on ICICI Bank but not agreeing to accept the said amount in full and final settlement the petitioner raised the claim of Rs. 16,000/- as compensation from the respondent over and above the amount of the dishonoured cheques. In these circumstances the complainant/petitioner refused to withdraw the complaint while the respondent/accused pleaded before the Lok Adalat that he was prepared to plead guilty and the matter, then be disposed of by summery trial after taking into consideration the said deposit of the full amount of the dishonoured cheque. Vide separate statement of the respondent/accused recorded by the Lok Adalat on the same day i.e. 4.2.2007, the respondent/accused pleaded guilty after depositing the said bankers'' cheque in the sum of Rs. 79,332/- in the court. The matter was thereafter placed by the Lok Adalat before the court for 12.2.2007 when the concerned Magistrate after taking into consideration payment of the said amount by the respondent/accused admonished the respondent/accused without granting any compensation amount to the petitioner. The petitioner was also granted liberty to withdraw the cheque amount from the court. Feeling aggrieved with the said order of the Ld. M.M., the petitioner filed a revision petition assailing the order of the learned M.M. on the same grounds as have been raised by the petitioner in the present petition. The Revisional Court vide its order dated 1.3.2007 did not find any infirmity or impropriety in the order passed by the Ld. M.M. and therefore dismissed the said revision petition filed by the petitioner. The Revisional court observed that the trial court is the best judge of the circumstances for passing the order of sentence and no infirmity was found in the order of the Ld. M.M. by the revisional court. Learned Counsel for the petitioner has placed reliance on the following judgments in support of his arguments:

Hari Kishan Vs. Sukhbir Singh and Others,

Suganthi Suresh Kumar Vs. Jagdeeshan,

K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another,

2005 (2) JCC 1178 State of M.P. v. Saleem @ Chamaru and Anr.

2005 (2) JCC 1182 Ganga Kumar Srivastava v. The State of Bihar

Suganthi Suresh Kumar Vs. Jagdeeshan,

Cri. A. No. 1968 of 1996 D/d 20.11.2003 Goa Plast (P) Ltd. v. Chico Ursula D''Souza

Crl.A. No. 322 of 2003 D/d 29.9.2003 O.P. Gaur v. O.P. Goel and Anr.

Crl. R.P. No. 2221 of 2005 D/d 12.7.2006 Anirudhan v. Philip Jacob and Ors.

CRRP 1671/2004 D/o 5.7.2004 P. Aboobacker v. P. Ismail and Anr.

Crl. R.P. No. 947 of 2000 D/d 25.10.2002 M.S. Anil Kumar v. Shamy

The main thrust of the counsel for the petitioner was on the proposition that the settlement could not have been forced upon the unwilling petitioner who had legitimate right to claim the compensation u/s 357 of the Code of Criminal Procedure or to the amount which the respondent was liable to pay towards interest on the amount of dishonoured cheque or amount spent by the petitioner towards dishonourment charges of various cheques, etc. Counsel also contended that the power granted to the court u/s 357 Cr.P.C. should be exercised liberally for granting compensation to the victims instead of drawing sympathy for the accused persons whose contumacious conduct alone compelled the petitioner to file a complaint u/s 138 N.I. Act. The court is vested with the power to grant compensation to the complainant but the petitioner had only pleaded for a nominal amount of Rs. 16,000/- to which the petitioner was legally entitled towards interest amount on the dishonoured cheques as well as the bank charges for dishonoured cheques incurred by the petitioner. Counsel further stated that even after the court finding the respondent guilty no punishment has been awarded to the respondent and rather the petitioner stood penalized who was forced to accept the amount of the dishonoured cheques without the grant of any compensation amount.

I have heard learned Counsel for the parties and perused the record.

Section 357 of the Code of Criminal Procedure is an enabling provision by which the court can give direction at the time of passing sentence of fine or a sentence of which fine forms a part, compensation amount to the victims of crime. u/s 357(1) the court exercises discretion in cases where fine forms part of the sentence whereas, u/s 357(3), the court has discretion to direct the convicted person to pay compensation even in cases where fine does not form part of the sentence. Section 357(1) talks about fine whereas Section 357(3) talks about compensation. Although, in a way both fine and compensation seeks to achieve the same purpose but there exists a distinction between the two. An amount of compensation can be directed to be recovered as a fine. This has been explained by the Hon''ble Apex court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and Another, as reproduced below:

Magistrates cannot award compensation in addition to fine. When a fine is imposed, however, the private party has no right to insist that compensation may be awarded to him out of the amount of fine. The power to award compensation u/s 357(3) is not an ancillary power. It is an additional power. See Balraj Vs. State of U.P., . Clause (b) of Sub-section (1) of Section 357 and Sub-section (1) of Section 357 and Sub-section (3) of Section 357 seek to achieve the same purpose. What is necessary is to find out the intention of the law maker and the object sought to be achieved. Sub-section (2) of Section 357 uses the word `fine''. It does not say that what would be stayed i.e. application of fine. Sub-section 2 of Section 357, in our opinion, does not contemplate any other interpretation. Even assuming Page 1820 that Mr. Lalit was correct in his submission, still then Sub-section (3) would be squarely attracted. The amount of compensation, in view of the legal fiction, may be recovered u/s 421 of the Code. But the amount of compensation, having regard to Sub-section (2) of Section 357 of the Code cannot be recovered forthwith unless the period of appeal expires.

There cannot be two opinions that the power of courts to award compensation to the victims of offences as envisaged u/s 357 is not ancillary but is in addition to the power of sentence or fine as available to the court under the relevant penal provision of law. It is also not in dispute that under the provisions of Section 138 N.I. Act the court at the time of passing a final order is fully empowered to impose a penalty double than the amount which makes twice the amount of the cheque but the precise question in the facts of the present case is whether there is any vested right of the complainant to claim either the amount of compensation u/s 357 or u/s 138 N.I. Act. Needless to say that such a discretion rests with the Magistrate trying a particular case and has to be exercised by the court of first instance judiciously and not arbitrarily or on whims and fancies. Grant of compensation or denial thereof would certainly depend on the facts of each case. In the facts of the present case, the matter was sent to the Lok Adalat where the respondent came forward to deposit the entire amount of the dishonoured cheque and the Lok Adalat feeling satisfied with the said offer thought the case fit for settlement. However, since the petitioner insisted upon the payment of Rs. 16,000/- towards some residuary charges and interest, therefore, without recording any final settlement, the Lok Adalat felt the case to be sent to the Magistrate for passing an appropriate order. The Lok Adalat , however, recorded the statement of the respondent pleading guilty of the offence. Thereafter, the matter was taken up by the Magistrate and the impugned order dated 12.2.2007 was passed whereby the respondent was admonished after giving liberty to the petitioner to withdraw the amount of the bankers'' cheque as deposited by the respondent. The observations of the Magistrate are worth noticing and the same are as under:

Once the payment was brought complainant resiled from his stand and claimed an amount of Rs. 16,000/- before Lok Adalat on which accused pleaded guilty as complainant refused to accept the cheque amount. It seems that by filing the complainants U/s 138 N.I. Act, the complainant is resorting to an arm twisting manner whereby he is desirous to get the amount even in the absence of any such interim imparted in their favour. The complainant had all the rights otherwise to claim the aforesaid amount by way of filing civil suit and not by levying the same in the running account of the accused which is going on with the complainant, arbitrarily. The said practice seems to have been extended in the court also where after receiving the drafts for the amounts, complainant refused to accept the same forcing the accused to come forward in summary trial. Tactics adopted by the complainant in this case are depricable and in fact disentitle him from any kind of compensation. Accordingly, since the accused has placed the amount of dishonoured cheque on record she stands admonished. A/R is at liberty to withdraw the cheque amount failing which same be deposited in Court Treasury.

File be consigned to record room.

From the aforesaid observations of the learned Magistrate it is manifest that the petitioner must have agreed before the Lok Adalat to settle the matter without insisting upon any payment over and above the amount of dishonoured cheques and later on the petitioner resiled from the same. The liberty was granted to the authorized representative of the petitioner/complainant to withdraw the cheque amount from the court. Although the petitioner challenged the said order before the revisional court as well as before this Court but surprisingly the petitioner has already withdrawn the said bankers'' cheque from the court of Magistrate. The behavior of the petitioner is quite strange as on the one hand it has already accepted the amount of the cheque, on the other hand, he is continuing with the litigation as well.

Considering such conduct of the petitioner, I find myself in agreement that the observation of the ld. M.M. castigating the acts of the petitioner as depricable. The contentions raised by the petitioner are not worth consideration when the petitioner has already accepted the cheque amount. In view of the peculiarly of facts of the present case the Judgments cited by the ld. Counsel for the petitioner are not applicable. There is no merit in the present petition, and consequently the same is dismissed with a cost of Rs. 5000/- to be deposited by the petitioner with the Lawyers'' Welfare Fund within a period of two weeks. In case the payment is not made within the stipulated period, the Registrar General shall take adequate steps to enforce payment of the said costs from the petitioner.