INDOCOUNT FINANCE LTD Vs. SUSHMA KAPOOR

JUDGEMENT

(1.) BY way of the present petition filed under Section 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.

(2.) 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 under Section 482 of the code of Criminal Procedure is that the Metropolitan Magistrate at the time of finally deciding the complaint of the petitioner filed under Section 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:- (1988) 4 SCC 551 Hari Singh Vs. Sukhbir Singh and Others 2002 (1) Crimes 265 (SC) Suganthi Suresh Kumar Vs. Jagdeeshan air 1999 SC 3762 K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another 2005 (2) JCC 1178 State of M. P. Vs. Saleem @ Chamaru and Anr. 2005 (2) JCC 1182 Ganga Kumar Srivastava Vs. The State of Bihar 2002 (1) Crimes 265 (SC) Suganthi Suresh Kumar Vs. Jagdeeshan cri. A. No. 1968 of 1996 D/d 20. 11. 2003 Goa Plast (P) Ltd. Vs. Chico Ursula d"souza crl. A. No. 322 of 2003 D/d 29. 9. 2003 O. P. Gaur Vs. O. P. Goel and Anr. Crl. R. P. No. 2221 of 2005 D/d 12. 7. 2006 Anirudhan Vs. Philip Jacob and Ors. CRRP 1671/2004 D/o 5. 7. 2004 P. Aboobacker Vs. P. Ismail and Another crl. R. P. No. 947 of 2000 D/d 25. 10. 2002 M. S. Anil Kumar Vs. 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 under Section 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 under Section 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 under Section 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.

(3.) 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. Under Section 357 (1) the court exercises discretion in cases where fine forms part of the sentence whereas, under Section 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.- (2007) 6 SCC 528 as reproduced below: