Delhi District Court
Sadiq Hussain vs M/S Shristhi Fabrics on 31 March, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
CR No.11/2013
Sadiq Hussain, S/o Sh. Abdul Wasid,
R/o A30/K8, Mata Mandir,
Gali No.1, Maujpur, Delhi. .....Revisionist.
Versus
M/s Shristhi Fabrics,
Through its Proprietor
Suresh Chand Jain,
S/o Late Sh. Anant Ram Jain,
R/o C12/328, Yamuna Vihar, Delhi. .....Respondent.
Date of filing of revision. : 25.04.2013.
Date of arguments. : 24.03.2014.
Date of judgment. : 31.03.2014.
:J U D G M E N T:
1. Aggrieved by the order dated 20.04.2013 passed by Ld. MM:KKD/Delhi in a case bearing CC No.6254/10 U/s 138 N.I. Act, PS Bhajanpura titled as M/s Shristhi Fabrics Vs. Sadiq Hussain, whereby Ld. Trial Court while dismissing the application of revisionist/convict filed U/s 357 r/w Sec.421 & 431 Cr.P.C, issued NBW against the revisionist/convict and notice to his surety, the revisionist has preferred the present revision Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 1 of pages 6 petition on 25.04.2013 for setting aside the impugned order.
2. Notice of the revision petition was issued and served upon the respondent, and accordingly proprietor of respondent alongwith his counsel appeared before the court.
3. I have heard both the parties in details. I have also perused the entire material placed on record particularly, the impugned order, record summoned from the Trial Court, contents of the revision petition specially the grounds taken therein and also the case laws relied upon by the parties.
4. As per submissions of Ld. Counsel for revisionist, according to the scheme of Criminal Procedure Code, if any amount is to be recovered on account of default in payment of fine, it would have to be done in accordance with the provisions of Sec. 421 Cr.P.C, which provides for issuance of warrant for the levy of the amount by attachment and sale of any immovable property belonging to the offender and in the alternative by issuance of warrant to the collector of District authorizing him to realize the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter.
Per contra, according to Ld. Counsel for the respondent Sec.431 Cr.P.C makes it clear that any money other than a fine payable on account of an order passed under the Code, shall be recoverable as if it were a fine which takes us to Sec.64 IPC and Sec.64 IPC makes it clear that while imposing a sentence of fine, the court would be competent to include a default sentence to ensure payment of the same, the provisions of Sec.357 (3) and 431 Cr.P.C, when read with Sec.64 IPC, empower the court, while making an order for payment of compensation, to also include a default sentence in case of non payment of the same. Thus, there is no substance in the instant revision petition. In his submissions, Ld counsel for the respondent has placed reliance upon the judgments reported as (1998) 4 SCC 551 and Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 2 of pages 6 (2002) 2 SCC 420.
5. In the instant case, revisionist Sadiq Hussain was convicted by Ld. Trial Court vide his judgment dated 04.04.2012 and was sentenced to imprisonment till rising of the court and was also directed to pay a compensation of Rs.1,20,000/ to the complainant within a period of one month from the date of order on sentence dated 10.04.2012 and in default to undergo simple imprisonment for a period of four months. The appeal preferred against the said judgment of conviction and order on sentence was dismissed by first Appellate Court vide its order dated 07.03.2013. Thereafter, revisionist/convict approached to the Hon'ble High Court of Delhi but his petition was dismissed by Hon'ble High Court of Delhi vide order dated 08.04.2013. With that the conviction and sentence of revisionist/convict stood affirmed. Thereafter, instead of presenting himself before the Ld. Trial Court, the revisionist/convict preferred an application U/s 357 r/w Sec.421 & 431 Cr.P.C interalia praying "to record satisfaction of sentence" on the ground that as per Sec.357 Cr.P.C, compensation can not be awarded without imposition of fine and in the present case compensation was imposed independent of fine or without imposition of fine. The said application was dismissed by Ld. Trial Court vide the impugned order and process of NBW were issued against the revisionist herein, which is being assailed by the accused (revisionist herein) on various grounds as mentioned in the petition and in my considered opinion, the petition as filed is devoid of substance as it is well settled that the provisions for grant of compensation and the recovery thereof makes it necessary for the imposition of a default sentence as held by the Hon'ble Apex Court firstly in the case titled as Hari Singh Vs. Sukhvir Singh (1998) 4 SCC 551 wherein, it was interalia, held that since the imposition of compensation U/s 357 (3) Cr.P.C was on account Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 3 of pages 6 of social concern, the court could enforce the same by imposing sentence in default, particularly when no mode had been prescribed in the Code for recovery of sums awarded as compensation in the event the same remained unpaid and thereafter, in the case titled as Sugnathi Suiresh Kumar Vs. Jagdishan (2002) 2 SCC 420, where the aforesaid views were reiterated and in para 11 of the same it was observed as follows: "11. when this court pronounced in Hari Singh VS. Sukhbir Singh that a Court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a larger Bench of this Court.
Hence learned Single Judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran Vs. Jose 2001 (3) Kerala Law Times 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the Single Judge of the High Court has incorrectly reversed it."
Further the Hon'ble Apex Court in Special Leave Petition (CRL. No.3220 of 2008) titled as Vijayan Vs. Sadanandan K. & Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 4 of pages 6 Anr. Has amply clarified that the provisions of Sec.357 (3) & 431 Cr.P.C when read with Sec.64 IPC, empower the court, while making an order of payment of compensation, to also include a default sentence in case of non payment of the same, the observations made by this court in Hari Singh's case (supra) are as important today as they were when they were made and if, as submitted by Dr. Pillai, recourse can only be had to Sec.421 Cr.P.C for enforcing the same, the very object of sub Sec.3 of Sec.357 could be frustrated and the relief contemplated therein could be rendered some what illusory.
6. In the light of aforesaid, I find no substance in the revision petition as preferred by the revisionist. As such, the same is hereby dismissed.
7. Now TCR alongwith the copy of this order be sent to Ld. Trial Court for information and further proceeding in the matter as per law.
8. The revisionist is directed to appear before the Ld. Trial Court on 23.04.2014.
9. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in the open
court on 31.03.2014) (RAKESH KUMAR)
ADDL. SESSIONS JUDGE:(NE)
KARKARDOOMA COURT:DELHI
Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 5 of pages 6
CR No.11/2013
Sadiq Hussain Vs. M/s Shristhi Fabrics
31.03.2014
Present: As before.
Vide a separate judgment, revision petition of the revisionist stands disposed off.
TCR alongwith the copy of this order be sent to the Ld. Trial Court for information and further proceeding in the matter as per law.
Revisionist is directed to appear before the Ld. Trial Court on 23.04.2014.
Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02 (NE)/KKD/DELHI 31.03.2014 Sadiq Hussain Vs. M/s Shristhi Fabrics (CR No.11/2013) Page No. 6 of pages 6