Sudhir Garg vs State Of U.P. & Another
2016 Latest Caselaw 6073 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 22
 
Reserved/AFR
 

 
Case :- CRIMINAL REVISION No. - 2425 of 2009
 
Revisionist :- Sudhir Garg
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Brahm Singh,Susheel Kumar Tewari
 
Counsel for Opposite Party :- Govt Advocate,Subodh Kumar
 
		Conected with
 

 
Case :- CRIMINAL REVISION No. - 2789 of 2009
 
Revisionist :- Parmatma Saran Gupta
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Subodh Kumar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Amar Singh Chauhan,J.

Since in both the aforecaptioned criminal revisions question of facts and law involved are common, they were heard together and are being disposed of by means of this common order.

The facts which are necessary for adjudication of these revisions are that Parmatma Saran Gupta, the revisionist in criminal revision No. 2789 of 2009

(hereinafter referred to as the complainant-revisionist) made a complaint before the Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 2, Moradabad alleging therein that one Sudhir Garg, the revisionist in criminal revision No. 2425 of 2009 ( hereinafter referred to as accused-revisionist ) took a loan of Rs. 2,16,000/- (two lac sixteen thousand only) from him on different dates and for repayment of the said loan, he has issued five post-dated cheques to the revisionist Parmatma Saran Gupta of his bank account No. 15939 of Union Bank of India, Moradabad and also executed an agreement in writing in this regard. The complainant-revisionist deposited the said cheques in his bank account No. 952 of Punjab National Bank Kanth Road, Moradabad thrice, but the aforesaid cheques were dishonoured due to insufficient fund. The complainant-revisionist thereafter sent a notice dated 23.3.2005 to the accused-revisionist asking him to repay the said loan of Rs. 2,16,000/- within 15 days of the receipt of the notice, but in collusion with the postman, accused-revisionist returned the said notice with the remark that the addressee not met in spite of repeated visits. On 3.4.2005, the complainant-revisionist received back unserved notice. Thereafter the complainant-revisionist sent a demand notice on 21.4.2005, which was received by accused-revisionist on 25.4.2005, who replied to the notice on 6.5.2005, but the loan amount was not paid.

The learned trial court after recording the statement of the complainant Parmatma Saran Gupta under section 200 Cr.P.C., the evidence under section 202 Cr.P.C., the written agreement dated 21.9.2004 executed by the Sudhir Garg and all other materials, on being satisfied that prima facie case is made out, summoned the accused Sudhir Garg and recorded his statement under section 251 Cr.P.C. The accused in this statement admitted that he took loan of Rs. 2,16,000/- in cash from the complainant. He also admitted that he issued all the five cheques to the complainant, the aforesaid cheques were dishonoured owing to insufficient funds in his account. Further, he confessed that he has not repaid the loan amount and admitted all allegations of the complaint. Having considred the argument of the parties, learned trial court convicted Sudhir Garg under section 138 Negotiable Instruments Act and sentenced him six months' simple imprisonment and a fine of Rs. 2000/-. The learned trial judge had also awarded compensation of Rs. 2,50,000/- against Sudhir Garg.

Being aggrieved and dissatisfied by the order of learned trial court, Sudhir Garg filed an appeal. The learned Additional District Judge, Court No. 6, Moradabad while partly allowing the appeal, affirmed the judgement of the learned trial court sentencing the appellant to six months' simple imprisonment and a fine of Rs. 2,000/-, but set aside the part of the order awarding compensation of Rs. 2,50,000/- against the accused-revisionist.

Challenge in Criminal Revision No. 2425 of 2009 is to the orders dated 21.11.2008 passed by the learned Additional Civil Judge (JD)/Judicial Magistrate, Court No. 2, Moradabad and 8.6.2009 passed by the Additional Sessions Judge, Court No. 6, Moradabad in Criminal Appeal No. 96 of 2008. Whereas Criminal Revision No. 2789 of 2009 has been filed questioning the order dated 08.6.2009 passed by the Additional Sessions Judge, Court No. 6, Moradabad only to the extent whereby compensation awarded by the learned Magistrate was set aside.

Heard learned counsel for the revisionists, learned counsel for opposite party No. 2 and learned Additional Government Advocate in both the revisions and perused the record of the case.

Learned counsel for the accused-revisionist in criminal revision No. 2425 of 2009 submits that the learned Magistrate has exceeded his jurisdiction in granting damages and learned Additional Sessions Judge has erred in convicting and sentencing him.

On the other hand learned counsel for the complainant-revisionist in criminal revision No. 2789 of 2009 has contended that under section 357 Cr.P.C., Magistrate has ample power to impose damages or to give compensation to the aggrieved person and learned Additional Sessions Judge has committed error of law in setting aside compensation.

Before adverting to the claim of the parties, it is useful to quote section 357 of the Criminal Procedure Code:

"(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 by 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."

Learned counsel for the complainant-revisionist in criminal revision No. 2789 of 2009 has placed reliance upon the judgement of Hon'ble Apex Court in K.A. Abbas H.S.A. Vs. Sabu Joseph, 2010 (6) SCC 230, wherein the Hon'ble Apex Court has held as under:

" Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffrred any loss or injury by reason of the act for which the accused person has been sentneced."

In Balraj Vs. State of UP, 1994 (2) R.C.R. (Criminal) 558, Hon'ble Supreme Court held that Section 357(3) of Criminal Procedure Code 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 anciliary to other sentences but is is in addition thereto.

In Hari Kishan Vs. Sukhbir Singh and others, 1988(2) R.C.R (Criminal) 394, Hon'ble Supreme Court while suggesting all courts in India to impose a sentence on default of payment of compensation under sub-section (3) of Section 357, held as under:

" This court has observed that, Sub-section (1) of Section 357 provides power to award compensation to victim 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 compensation to victims while passing judgement of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has sufferred by the action of accused. It may be noted that 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 of responding appropriately to crime as well of reconcilng 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 exercixe this power liberally so as to meet the ends of justice in a better way."

Learned counsel for the complainant-revisionist in Criminal Revision No. 2789 of 2009 further submitted that appeal filed by the revisionist-Sudhir Garg is barred by Section 375 Criminal Procedure Code as in his statement recorded under section 251 Cr.P.C., he has admitted all allegations enshrined in the complaint along with receiving of loan of Rs. 2,16,000/-

Section 375 of the Code reads as under:

375. Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal:-

(a) if the conviction is by a High Court, or

(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence.

Perusal of the aforesaid provisions as well as case law, it is apparent that the learned Magistrate has ample power to grant compensation.

In view of the above, the order of the learned Additional Sessions Judge dated 8.6.2009 is set aside. The order of the learned Additional Civil Judge (JD)/Judicial Magistrate, Court No. 2 Moradabad dated 21.11.2008 is affirmed.

Resultantly Criminal Revision No. 2425 of 2009 preferred by Sudhir Garg is dismissed and Criminal Revision No. 2789 of 2009 preferred by the Parmatma Saran Gupta is allowed.

Interim order dated 19.6.2009 granted in Criminal Revision No. 2425 of 2009 stands discharged.

Dated: 22.9.2016

Ishrat