Delhi District Court
Ms. Sunil Sharma vs . Archana on 10 June, 2016
Ms. Sunil Sharma Vs. Archana
CR No: 440263/2016 ( Old no. 36/2015)
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI-I
DWARKA COURTS; NEW DELHI
Ms. Sunil Sharma
D/o Late Sh. Suraj Bhan
R/o House at Village Shahbad
Mohammadpur, New Delhi.
.............. Revisionist
VERSUS
Ms. Archana
Wife of Sh. Vinod Anurag
R/o MIG Flat no. 25, Sector 14,
Dwarka, New Delhi- 110075.
........Respondent
CR No. 440263/2016 ( old
No. 36/2015)
Date of Institution 03.12.2015
Reserved for orders on 06.06.2016
Order announced on 10.06.2016
JUDGMENT
1. This is a revision petition under Section 397/399 Cr.P.C. against the order dated 08.10.2015 passed by Ld. MM (NI Act)-04, Dwarka Court, New Delhi by which warrant has been issued to recover fine against the respondent ( revisionist herein) to the tune of Rs. 2.54 lacs through District Collector.
CR No:440263/16 ( old no. 36/2015) Page 1 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015)
2. Briefly stated relevant facts for the disposal of the revision petition are as under:
3. The revisionist has filed the above stated revision petition stating therein that the respondent herein had filed a criminal complaint case under Section 138 of Negotiable Instruments Act bearing old CC no. 3133/12, New CC No. 4456/14 titled as Archana Vs. Sunil Sharma and vide order dated 09.04.2014 passed by Ms. Swati Katiyar, Ld. MM, Dwarka Courts, the revisionist was convicted for the offence under Section 138 of Negotiable Instruments Act and vide order dated 11.04.2013 she was sentenced to imprisonment till rising of the court and to pay a fine of Rs. 2,55,000/- and it was directed that out of the fine of Rs. 2,55,000/- , a sum of Rs. 2,54,000/- shall be payable as compensation to the complainant and in default of payment of fine, the convict (revisionist herein) was to undergo imprisonment for 15 days. Revisionist had undergone the punishment of the detention by the court till the rising of the court . It is stated that for payment of compensation amount , the revisionist was given time. It is stated that against the order dated 09.04.2013 convicting the revisionist for offence under Section 138 of NI Act and order on sentence dated 11.04.2013 of Ms. Swati Katiyar, Ld. MM, Dwarka Courts, the revisionist herein preferred criminal appeal bearing no. 36/13 but CR No:440263/16 ( old no. 36/2015) Page 2 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) the same was dismissed by the court of Sh. S.C. Rajan, Ld. ASJ/Special Judge ( NDPS), Dwarka Courts, New Delhi vide order dated 19.12.2013.
4. It is stated that the revisionist being a poor lady could not arrange the amount of compensation as ordered to pay by Ld. Trial Court and she was arrested and had undergone SI for a period of 15 days and remained in Judicial Custody w.e.f. 06.05.2014 to 20.05.2014.
5. It is further stated in the revision petition that the complainant ( respondent herein) has filed an execution petition under Section 421 Cr.P.C. r/w Section 357(3) Cr.P.C. against the revisionist and in the said execution petition, the revisionist was summoned by the court of Ld. MM and vide impugned order dated 08.10.2015, Ld. MM has directed the District Collector concerned to realize the amount of Rs. 2,54,000/- as arrears of land revenue from the movable and immovable properties of the revisionist. It is stated that the order dated 08.10.2015 passed by Ld. MM is erroneous and illegal. It is further stated that no order under Section 421 Cr.P.C. can be passed for realization of compensation amount. It is stated that the revisionist has already undergone SI for 15 days in default of payment of compensation amount and no further orders can be passed against the revisionist for recovery of the compensation amount. It is stated that the CR No:440263/16 ( old no. 36/2015) Page 3 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) order dated 08.10.2015 passed by Ld. MM ( NI Act)-04, Dwarka, New Delhi is liable to be set aside.
6. I have heard Ld. Counsels for the parties and carefully gone through the records.
7. The contention of Ld. Counsel for the revisionist is that vide order on sentence dated 11/04/2013 revisionist was directed to pay a fine of Rs. 2,55,000/- out of which a sum of Rs. 2,54,000/- was payable as compensation to the respondent and in default of payment of fine, the revisionist was to undergo SI for a period of 15 days and revisionist has already undergone the said period of simple imprisonment of 15 days w.e.f. 06.05.2014 to 20.05.2014 and in the circumstances the revisionist could not have been directed to make payment of compensation amount.
8. Ld. Counsel for the revisionist has further contended that Section 421(1) Cr.P.C. draws distinction between fine and compensation and in the impugned order dated 08.10.2015, Ld. MM has not mentioned any special reasons in terms of proviso under Section 421 Cr.P.C. thereby directing District Collector to enforce recovery of compensation amount.
9. Ld. Counsel for the Revisionist has relied on decisions in K. Vaman Shenoy V. Collector of South Kanara, Mangalore, AIR 1964 Mysore 64 and M. Nagendrappa Vs. Commercial Tax Officer, CR No:440263/16 ( old no. 36/2015) Page 4 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) Harapanahalli, 1997 (2) Crimes 442.
10. Ld. Counsel for the respondent has contended that Section 421 Cr.P.C. empowers Ld. MM to issue directions to the Revenue Authorities to recover the amount of compensation as fine when the same has not been paid even after the revisionist has undergone the simple imprisonment in default of payment of fine.
11. Ld. Counsel for the respondent has contended that proviso of Section 421 (1) Cr.P.C. is applicable not only to fine imposed and compensation directed to be paid under Section 357 (1) Cr.P.C. but also to a direction to pay compensation under Section 357(3) Cr.P.C..
12. Ld. Counsel for the respondent has contended that the authorities as relied by the revisionist are not applicable to the facts of the present case as the said authorities deal with the consequences of non payment of fine.
13. Ld. Counsel for the respondent has relied on decisions in Vijayan V. Sadanandan K. & Anr. , 2009 CRL. L.J. 2957, R. Mohan Vs. A.K. Vijaya Kumar, ( 2012) 8 Supreme Court Cases 721 and K.S. Saji Kumar V. Soman Pillai and Another, 2007 CRI. L.J. 2992.
14. It is not in dispute that the respondent herein had filed a criminal complaint CC no. 3133/2012 ( New No. CR No:440263/16 ( old no. 36/2015) Page 5 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) 4456/14) titled as Archana Vs. Sunil Sharma for offence under Section 138 NI Act and in the said criminal complaint, the accused ( revisionist herein) was convicted by Ld. MM vide order dated 09.04.2013 and was sentenced vide order dated 11.04.2013 to suffer TRC and to pay a fine of Rs. 2,55,000/- out of which Rs. 2,54,000/- was to be paid as compensation to complainant and in default of payment of fine to undergo SI for 15 days.
15. As per impugned order dated 08.10.2015 the revisionist has undergone simple imprisonment for 15 days from 06.05.2014 to 20.05.2014 in default of payment of fine.
16. In the impugned order dated 08.10.2015, Ld MM has been pleased to observed that :
The proviso to Section 421 of the Code makes it clear that if the order for payment of the compensation is made out of fine the court has power to issue warrants for recovery of the amount. Thereby making it clear that when out of the fine amount imposed, compensation has been directed to be paid than in such cases attempt to recovery under Section 421 of the Code must continue even after the default sentence is undergone by the offender/convict/respondent. Accordingly, in CR No:440263/16 ( old no. 36/2015) Page 6 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) view of the aforesaid legal provision, it is amply clear that this court has ample power to issue warrants for levy of fine amount against the respondent/convict to the tune of Rs. 2.54 lacs despite the fact that respondent has undergone the default sentence.
17. The main thrust of arguments of Ld. Counsel for the revisionist is that in the impugned order dated 08.10.2015, Ld. MM has failed to mention any special reasons for issuance of warrant for recovery of compensation amount and on that account the impugned order dated 08.10.2015 is liable to be set aside.
18. The question for examination in this revision petition is that whether the liability to pay compensation as ordered under Section 357 (3) Cr.P.C. will extinguish if the default sentence as imposed for recovery of the said compensation amount is undergone by the accused/revisionist.
19. In the circumstances, it is important to examine the relevant provisions of the Code of Criminal Procedure, 1973.
20. Section 357 (3) Cr.P.C. provides:
When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused CR No:440263/16 ( old no. 36/2015) Page 7 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) 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.
21. Section 421 (1) Cr.P.C. provides:
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 moveable 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 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 CR No:440263/16 ( old no. 36/2015) Page 8 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) unless, for special reasons to be recoded 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.
22. Section 431 Cr.P.C. provides :
Money ordered to be paid recoverable as a fine. - Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.
Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures " under section 357", the words and figures "or an order for payment of costs under section 359" had been inserted.
23. Section 421 (1) Cr.P.C. provides procedure for recovery of fine and the said sub section makes it clear that if a person has already undergone the sentence of imprisonment in default, no court shall issue a warrant for recovery of fine amount under clauses (a) and (b) but CR No:440263/16 ( old no. 36/2015) Page 9 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) proviso of Section 421 (1) Cr.P.C. provides exceptions to the aforesaid rule and the same are that the court for any special reasons to be recorded in writing, considers such recovery to be necessary or unless the court has made an order for the payment of expenses or compensation out of the fine under Section 357.
24. The purpose of incorporating the aforesaid exceptions seems to be that a person shall not be able to frustrate the attempt of the law to recover the fine amount by merely opting to undergo sentence in default.
25. In case K.S. Saji Kumar V. Soman Pillai and Another, 2007 CRI. L.J. 2992, it has been held
10. This Section makes it amply clear that a compensation directed to be paid under Section 357 (3) Cr.P.C. can also be recovered "as if it were a fine". A fiction is created under Section 431 Cr.P.C. and the fiction is that though such amounts may not be a fine, it shall be recoverable as if it were a fine. For the purpose of recovery the legislature enacts and introduces a legal fiction. According to me, this fiction must be extended logically until its purpose is accomplished. A non fine is deemed to be a fine for the purpose of recovery. Until recovery is completed, the fiction must continue to live and CR No:440263/16 ( old no. 36/2015) Page 10 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) exist. Having introduced and enacted such statutory fiction it will be improper, illogical and irrational to give up or discontinue the fiction at any stage before the purpose of the fiction is accomplished, namely, recovery of the amount. Until recovery is completed, I have no hesitation to hold the deemed fiction must continue. Until then the amount is to be assumed and deemed to be a fine, though actually it is not.
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14. The Learned Counsel for the petitioner contends that this may be so in so far as fine stricto sensu is concerned and direction for payment of compensation is issued under Section 357 (1)Cr.P.C.. It cannot be so in so far as deemed fines under Section 431 are concerned, he urges. I find no principle, precedent or statutory provision which can enable the Court to accept such a construction. The deeming fiction under Section 431 Cr.P.C. must necessarily continue until the recovery is effected. A fine as well as deemed fine are both taken into account by the proviso to Section 421(1)Cr. P.C.. I am unable to accept the contention that the proviso CR No:440263/16 ( old no. 36/2015) Page 11 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) to Section 421(1) Cr.P.C. can apply only to fines imposed and compensation directed to be paid under Section 357 (1) Cr.P.C. and cannot apply to a direction to pay compensation under Section 357 (3) Cr.P.C. which becomes a deemed fine under Section 421 Cr.P.C. . It is significant that the proviso refers only to Section 357 and does not limit its application to Section 357(1) alone. The legislative scheme is made clearer when we consider that a direction for payment of costs under Section 359 Cr.P.C. which is a deemed fine under Section 431 Cr.P.C. is, by the proviso to Section 431, brought within the sweep of amounts covered by the latter/second part of the proviso to Section 421 Cr.P.C.. Such a clarification was unnecessary so far as compensation under Section 357(3)Cr.P.C. was concerned as the proviso to Section 421 Cr.P.C. did already cover all payments directed under Section 357 Cr.P.C. and not the one under Section 357(1) Cr.P.C. alone.
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16. It follows from the above discussions that there is no merit in the contention that a CR No:440263/16 ( old no. 36/2015) Page 12 of 13 D.O.O. 10.06.2016 Ms. Sunil Sharma Vs. Archana CR No: 440263/2016 ( Old no. 36/2015) direction for payment of compensation under Section 357(3) Cr.P.C. coupled with a default sentence which is sought to be recovered as a deemed fine under Section 431Cr.P.C. cannot be recovered if the default sentence has already been undergone. That contention is turned down.
26. In view of above stated legal proposition, the decisions in K. Vaman Shenoy V. Collector of South Kanara, Mangalore, AIR 1964 Mysore 64 and M. Nagendrappa Vs. Commercial Tax Officer, Harapanahalli, 1997 (2) Crimes 442, as relied by revisionist are of no help to her.
27. In view of the aforesaid discussions, I find no merits in the contention of revisionist that a direction for payment of compensation under Section 357(3) Cr.P.C. coupled with a default sentence which is sought to be recovered as a deemed fine under Section 431Cr.P.C. cannot be recovered if the default sentence has already been undergone. The revision petition is devoid of merits and the same is dismissed.
28. A copy of this judgment be sent to Trial Court. Revision file be consigned to record room.
Announced in the open (HARISH DUDANI) Court on 10.06.2016 Special Judge ( PC Act) CBI-I Dwarka Courts, New Delhi.
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