Delhi District Court
Manoj Jain vs Naresh Chand Jain (Now Deceased) on 2 February, 2013
"In the court of Sh. V.K Yadav, ASJ-02 (North), Tis Hazari Courts, Delhi"
CR NO. 12/12
Manoj Jain
S/o Sh. Krishna Dass Jain
R/o 4293, Arya Pura
Sabzi Mandi, Delhi - 110 007
.............. Revisionist
Versus
Naresh Chand Jain (Now deceased)
through his Legal Heirs
1. Smt. Mona Jain
D/o Late Sh. Naresh Chand Jain
R/o C - 150, Surya Nagar
Ghaziabad
2. Smt. Neeru Jain
W/o Sh. Rajiv Jain
R/o A-669, Sector - 19
Noida, UP
3. Mrs. Sundari Jain
W/o Late Sh. Naresh Chand Jain
R/o H. NO. 4596/2B
11, Darya Ganj, Delhi
4. The Govt. of NCT, Delhi
........... Respondents
Date of institution : 15.03.2012
Date of arguments : 24.01.2013
Date of decision : 02.02.2013
ORDER
1. Aggrieved by the order dated 29.02.2012, whereby the Ld. Trial court issued warrant of attachment of property of the revisionist in respect of an amount of compensation of Rs. 11 lakhs awarded to be executed CR NO. 12/12 Page 1 of 6 through the SDM. The instant revision has been filed against the backdrop of above facts and the same is hereby disposed off through this order.
2. The indispensable facts, concisely, are that a complaint was filed by the father of the revisionist herein Naresh Chand Jain u/s 138 of the Negotiable Instrument Act in which after the trial, revisionist herein was held guilty and was sentenced to undergo Simple Imprisonment for 9 months and was also commanded to pay a sum of Rs. 11 lakhs as compensation failing which he was further to undergo Simple Imprisonment for 2 months. The appeal filed assailing the conviction and sentence was ultimately dismissed on 20.07.2011 while confirming the conviction and sentence. The revisionist was taken into custody on 20.07.2011 and he served the entire sentence in prison including the period of Simple Imprisonment for 2 months in default of payment of compensation, which was got verified by this court from the jail authorities.
3. The respondent herein filed an application u/s 421/431 CrPC seeking attachment and sale of movable and immovable properties of the revisionist herein in order to realize the amount of compensation and together with the application a list of properties was also annexed. Now comes the impugned order dated 29.07.2012, whereby the warrant of attachment of the property of the petitioner was issued, to be executed by the concerned SDM as per law. It is this order, which has been assailed by the revisionist on various counts, first and foremost of which is whether the Ld. Trial Court was empowered to issue warrant of attachment in terms of Section 421 CrPC. It is submitted that the procedure adopted is wrong as what ought to have been done was a certificate was to be issued calling upon the Collector to recover the CR NO. 12/12 Page 2 of 6 amount of compensation as arrears of land revenue. Thus, the crux of the grievances is the issuance of warrant of attachment of the movable and immovable properties of the revisionist through SDM, which was beyond the powers of the Ld. Magistrate.
4. The respondent while contesting the revision conceded that there is an anamoly in the impugned order with regard to the procedure adopted by the Ld. Magistrate. But then, it is submitted that notwithstanding the fact that revisionist has undergone Simple Imprisonment for 2 months in default of payment of compensation, the respondent is still entitled to claim the amount of compensation and merely because there was some irregularity in the proceedings, the respondent cannot be denied the legitimate dues.
5. I have considered the submissions made by the Ld. counsels for the contesting sides and have perused the record as well.
6. In order to supplement his arguments, Ld. counsel for the revisionist has placed a reliance on the following authorities K.A Abbas Vs. Sabu Joseph (2010) 6 SCC 230, Jeffrey J. Diermeier and another Vs. State of West Bengal and another (2010) 6 SCC 243, Roshan Lal Vs. Kishan Lal 1991 CRI.L.J 428, Bhaskar Chattoraj Vs. State of West Bengal 1991 CRI.L.J429, Mayanna Vs. State of Mysore AIR 1967 Kant 40, Bhola Ram Vs. State of Punjab and others in Civil Writ Petition No. 5647 of 2007 decided on 19.02.2008, B. Jagannatha Naidu and others Vs. The State of A.P 1972 CRI.L.J 438 (V 78 C 106), Dulo Ram Vs. State 4 (1968) Delhi Law Times 511, Hari Singh Vs. The State AIR 1963 Rajasthan 80 (V 50 C 25) (1).
7. The issues emerging for consideration are ____ what is compensation ? Whether it can be recovered even and if so how. In case the accused fails to pay then what would be the mode of realization ?
CR NO. 12/12 Page 3 of 6Secondly, in case the accused has undergone sentence of imprisonment in default of payment of compensation whether still the compensation can be recoverable ?
8. The facts bring in Section 357 CrPC particularly sub Section 3 of Section 357 together with 431, 421 CrPC into the picture. The word 'compensation' is capable to incorporate in itself the inherent idea of providing some solace or indemnification to the victim and not to really penalize the accused. It may be the case that the compensation, as it has to come from the accused, thus, it may appear to him as one or the other kind of penalty. Nevertheless, fundamental idea in awarding the compensation remains intact. There is no dispute about the fact that the Ld. Trial Court had awarded compensation of Rs. 11 lakhs to the complainant/respondent. Under going sentence in default can whether wipe it out or not is to be seen. Albeit, it appears that the revisionist has also undergone the period of Simple Imprisonment, which was ordered by the court in default of payment of compensation, thus, the respondent on the face of it cannot realize the compensation. But then the inherent idea of compensating the victim remains unsatisfied. As such, the proposition does not seems to be correct that compensation is not to be paid. Although, the Ld. counsel for the revisionist has argued that fine and compensation is one and the same thing and as a person undergoes the period of punishment in default of payment of fine. Similarly, the period undergone in default of payment of compensation should free him from the liability in respect of compensation, as is the case with the payment of fine. In such circumstances, the compensation also cannot be recovered. However, the preposition seems otherwise as compensation is entirely on a different footing, thus, notwithstanding the fact that the person concerned has undergone imprisonment in default, still CR NO. 12/12 Page 4 of 6 compensation can be realized as that only would have been the idea of the legislature qua the welfare measure towards the victim.
9. It is further contended by the counsel for the revisionist that no show cause notice was given to the revisionist as in that case he would have opted to pay the compensation instead of remaining in jail. The show cause notice contemplated in Section 421 CrPC was very much served upon the revisionist, albeit, not during the period of sentence or before it started. Therefore, this contention has no legs to stand upon. The other side of the coin is that the revisionist was fully aware, being uneducated man, therefore, he could have gone for the payment of the compensation in order to avoid the sentence in default. The judgments relied upon by the Ld. counsel for the revisionist deal with the aspect of fine and to the effect that where the period of sentence in default of payment of fine has been undergone, the accused in such circumstances cannot be compelled to pay the amount of fine. Ld. counsel for the revisionist could not show that the fine and compensation are to be treated at par on the same footing except for the purpose of realization of the amount of compensation. It only provides a mode and does not in any manner diminishes the true import of compensation.
10. The procedure adopted by the Ld. Trial Court is not correct inasmuch as the mandate was to be issued to the collector to realize the amount in accordance with the law as is applicable in case of recovery of arrears of land revenue. In the judgment titled as K.A Abbas H.S.A Vs. Sabu Joseph 2010 (3) Crimes 15 (SC), more or less similar aspect was dealt with by the Hon'ble Supreme Court, whereby it was held that sentence of imprisonment can be granted in default of payment of compensation u/s 357 (3) CrPC and has relied upon the judgment in Dilip S. Dahanukar Vs. Kotak Mahendra Company Limited 2007 (6) SCC 528, CR NO. 12/12 Page 5 of 6 which further clarifies the issue, where it was observed in the following words :
" We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a fine but the legal fiction raised in relation to recovery of fine only, it is in that sense fine stands on a higher footing than compensation awarded by the Court".
11. Thus, it is evident that fine and compensation are two different things although the method of recovery may be same. As the Ld. Magistrate has not followed the mandate of Section 421 CrPC, therefore, the impugned order, whereby he himself has assumed the responsibility of having the compensation realized through attachment of property through SDM is not in consonance with the provision. The collector and the SDM may substitute each other but it is for the collector as per Section 421 CrPC to have especially in view of the proviso to sub section 1 of Section 421 CrPC, where a clear distinction have been made qua the compensation and court has been called upon to issue a certificate.
12. In view of this facts and circumstances, the impugned order dated 29.02.2012 is set aside and the matter is remanded back to the Ld. Trial Court with a direction to consider it afresh and pass appropriate order as per law. Parties to appear before the Ld. Trial Court on 27.02.2013. TCR be sent back alongwith copy of this order. File be consigned to record room.
Announced in the open court today i.e 02.02.2013 Vimal Kumar Yadav ASJ-02 (North)/02.02.2013 CR NO. 12/12 Page 6 of 6 CR NO. 12/12 02.02.2013 Present : Parties in person Vide separate order dictated and announced, the impugned order dated 29.02.2012 is set aside and the matter is remanded back to the Ld. Trial Court with a direction to consider it afresh and pass appropriate order as per law. Parties to appear before the Ld. Trial Court on 27.02.2013. TCR be sent back alongwith copy of this order. File be consigned to record room.
Vimal Kumar Yadav ASJ-02 (North)/02.02.2013 CR NO. 12/12 Page 7 of 6