Court No. - 44
Reserved on 10.08.2018 Delivered on 21.08.2018
Case :- APPLICATION U/S 482 No. - 20875 of 2018 Applicant :- Kanchan Aahlu Walia Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- A.G.A.,Ramesh Chandra Chaturvedi
Hon'ble Rajeev Misra,J.
1. Heard Mr. Kamlesh Kumar Dwivedi, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Ramesh Chandra Chaturvedi, learned counsel appearing for the opposite party no.2.
2. The application under Section 482 Cr.P.C. has been filed challenging the order dated 14.05.2018, passed by Sessions Judge, Agra in Criminal Appeal No. 130 of 2018 (Kanchan Aahlu Walia Vs. Vs. State of U.P. and another) whereby a condition has been imposed against the applicant directing him to deposit 50% of the fine awarded by the trial court before court concerned. A further direction has been issued to the appellate court to decide the aforesaid appeal preferred by the applicant in accordance with law.
3. From the record, it appears that the dispute between the parties originates on account of a cehque bearing no. 425864 dated 05.10.2014 valued at Rs. 10 lakhs and drawn on Punjab and Sind Bank, Sanjay Place, Agra, was issued by the applicant in favour of the opposite party no.2. The said cheque was not encashed on the ground that the payment has been stopped by the drawer and consequently, the same was returned to the opposite party no.2 vide Return Memo dated 02.01.2015. As per the mandate of Section 138 (1) (b) of the N. I. Act , the opposite party no.2 gave a legal notice dated 30.01.2015 to the applicant. However as inspite of receipt of the aforesaid notice, the applicant did not pay the amount payable under the disputed cheque, the opposite party no. 2 filed Complaint Case No. 1327 of 2015 (Manoj Kant Tiwari Vs. Kanchan Aahlu Wallia and another). The aforesaid complaint case was allowed by the Additional Civil Judge (Junior Devision), Court no.3, Agra by means of the order dated 27.04.2018. The Magistrate convicted the applicant under Section 138 N. I. Act and consequently, sentenced him to undergo simple imprisonment of six months alongwith a fine of Rs. 12 Lakhs. Upon failure to deposit the fine, the applicant is required to further undergo simple imprisonment of three months. Out of the fine so imposed by the trial court, a sum of Rs. 10.50 Lakhs was to be paid to the opposite party no.2 as compensation. Feeling aggrieved by the aforesaid judgement and order dated 27.04.2018, the applicant preferred a Criminal Appeal No. 130 of 2018 (Kanchan Aahlu Walia Vs. Vs. State of U.P. and another). In the aforesaid criminal appeal, the appellate court passed an order dated 14.05.2018 whereby the appeal was admitted and the effect and operation of the judgement and order dated 27.04.2018 passed by the trial court was stayed and the applicant was admitted to bail during the pendencey of the aforesaid criminal appeal. However a direction was issued by the appellate to deposit 50% of the amount of fine awarded by the court below and thereafter execute his personal bond of Rs. 20,000/- and two sureties of the like amount to the satisfaction of the court below and only thereafter the applicant was to be released on bail during the pendency of the appeal.
4. Feeling aggrieved by the last portion of the order whereby a direction has been issued to deposit 50% of the amount of fine as awarded by the Magistrate, the applicant has approached this court by means of the present application under Section 482 Cr.P.C. The controversy involved in the present application is relatable to Section 357 Cr.P.C., which is reproduced hereunder:
"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 such an offence, in paying 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 has 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 has been so sentenced.
(4) An order under this section may also be made by an 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:- Uttar Pradesh:
In section 357,-
(a) in sub- section (1), after clause (d), insert the following proviso, namely:-
"Provided that if a person who may receive compensation under clauses (b), (c) and (d) 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 order the whole or any part of the fine recovered to be applied in payment of such compensation.
(b) for sub-section (3), substitute the following sub-section, 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 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 " and
(c) after sub-section (5), insert the following Explanation, 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."
5. Learned counsel for the applicant submits that the direction issued by the Court below asking the applicant to deposit 50% of the amount of fine is patently illegal.
6. The issue raised in the present application is no longer res integria and stands settled by the judgement of the Apex Court in the case of Satyendra Kumar Mehra @ Satendera Kumar Mehra Vs. The State of Jharkhan, reported in 2018 (5) Scale 109. Paragraph 37 of the aforesaid judgement is relevant for the controversy in hand as such, the same is reproduced herein below:
"37. In view of the foregoing discussion, we are of the view that Section 357(2) Cr.P.C. was not attracted in the present case since there was no direction of payment of any compensation out of the fine imposed by the trial court as part of sentence. Section 357 Cr.P.C.(2) comes into play only where any order of payment of compensation utilising the fine imposed as sentence under Section 357(1) Cr.P.C. or compensation as directed under Section 357(3) Cr.P.C. is made. Present being neither a case of Section 357(1) Cr.P.C. nor Section 357(3), subsection(2) of Section 357 Cr.P.C. is clearly not applicable and the submissions raised by the learned counsel for the appellant are without any substance.
We, thus, do not find any infirmity in the impugned order of the High Court where the High Court has directed the appellant to deposit the fine awarded by the trial court. In the result, the appeal is dismissed."
7. A the perusal of the order dated 27.04.2018 passed by the court below, will go to show that a sum of Rs. 12 Lakhs was imposed as penalty and out of the aforesaid amount, a sum of Rs. 10,50,000/- was directed to be paid to the opposite party no.2 as compensation. Therefore, the case in hand is squarely covered by the judgement of the Apex Court in the case of Satyendra (Supra). Consequently, in the light of the facts and law as noted herein above, it is hereby directed that the direction issued by the appellate court to the applicant asking him to deposit 50% of the amount of fine, shall remain stayed, till the pendency of the appeal. Further this order shall automatically come to an end upon decision of the appeal.
8. With the aforesaid direction this application stands finally disposed of.
Order Date :- 21.8.2018 YK