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2007 DIGILAW 22 (DEL)

POONAM KHANNA v. STATE OF DELHI

2007-01-03

BADAR DURREZ AHMED

body2007
BADAR DURREZ AHMED, J. ( 1 ) ON 20. 12. 2006 when this revision petition was listed for the first time, this court issued notice only on the question of sentence. In response to the said notice the learned counsel for the State has appeared. Both the counsel agreed that this matter can be disposed of on the basis of material already on record. The petitioner was convicted under Section 409 IPC by the learned ACMM by his judgment dated 13. 03. 2006. By an order on sentence dated 29. 04. 2006, the petitioner was sentenced to suffer rigorous imprisonment for two years. She was also directed to pay a sum of Rs. 5 lacs by way of compensation to the complainant and in default she was required to undergo simple imprisonment for two years. ( 2 ) BEING aggrieved by this order on conviction and sentence the petitioner filed an appeal. The same was disposed of by the learned Additional Sessions judge by the impugned order dated 15. 11. 2006. The conviction was upheld and so was the sentence with regard to the punishment under Section 409 IPC. However, the in default period with regard to the compensation of Rs. 5 lacs was reduced from 2 years simple imprisonment to 1-1/2 years simple imprisonment. The nominal roll indicates that the petitioner has already served out the substantive sentence of 2 years rigorous imprisonment. However, she has not been able to pay the compensation amount of Rs. 5 lacs to the complainant as a result of which she is presently undergoing the in-default sentence and she has already been in jail for this sentence for a period of 2 months and 27 days as on 29. 12. 2006. ( 3 ) THE submissions of the learned counsel for the petitioner is that while passing an order on compensation under Section 357 (3) of the Code of Criminal procedure, 1973 the court is required to keep in mind various parameters. He placed reliance on the decisions of the Supreme Court in the case of Sarwan singh v. State of Punjab: (1978) 4 SCC 111 and Mangilal v. State of M. P. : (2004)2 SCC 447 in support of his plea that these considerations would be relevant and have not been taken into account by the courts below while awarding the amount of compensation as well as the sentence in default. ( 4 ) THE learned counsel for the State submitted that the sentences were appropriately given. He submits that the petitioner was an agent of the department of Small Scale Savings, Government of Delhi. The complainant had handed over sums of money to her for placing the same in deposit with the small scale savings. However, the petitioner did not deposit the entire amount and retained for her own use a sum of Rs. 4. 5 lacs and, therefore, she misappropriated the same. It is for this reason that she was convicted under section 409 IPC. Mr Saxena, the learned counsel for the State, submitted that the petitioner misappropriated funds of a retired person and, therefore, not much leniency ought to be shown to the petitioner while awarding sentence. He further submitted that since the amount of Rs. 4. 5 lacs had been misappropriated, the compensation amount of Rs. 5 lacs is not unreasonable. He, therefore, concluded by saying that the order on sentence needs no interference. ( 5 ) CONSIDERING the arguments advanced by the counsel for the parties, it would be necessary to examine the scope of the provisions of Section 357 (3) Cr. P. C. The Supreme Court in the aforesaid decisions in Sarwan Singh (supra) and mangilal (supra) has clearly set out the parameters which need to be taken into account while considering a case for grant of compensation under Section 357 (3)Cr. P. C. First of all, the court must consider as to whether the case is an appropriate one for making an order of compensation. If the court feels that the complainant or the injured party is to be compensated then the court must examine the extent of loss or injury suffered by the complainant at the hands of the accused. Thirdly, the court must also consider the capacity and ability of the accused to pay the compensation amount. It has also been noticed in the said decisions of the Supreme Court that the object of Section 357 (3) Cr. P. C is to compensate the victim and not to sentence the accused to further imprisonment. The in-default sentence is only for the purposes of ensuring that the compensation is paid. It has also been noticed in the said decisions of the Supreme Court that the object of Section 357 (3) Cr. P. C is to compensate the victim and not to sentence the accused to further imprisonment. The in-default sentence is only for the purposes of ensuring that the compensation is paid. However, in a case where the court feels that the person does not have the ability to pay and yet imposes a sentence in default, it would amount to a further period of substantive sentence rather than resulting in compensation to the victim. ( 6 ) IN this context it appears that there was some discussion before the appellate Court with regard to the quantum of the compensation. The petitioner?s son had apparently offered to pay a sum of Rs. 1,12,000/- to the complainant without prejudice. At the same time the counsel for the petitioner had expressed inability to pay the amount of Rs. 3 lacs which was being demanded by the complainant. This gives some indication of the fact that the amount of compensation that has been fixed by the courts below was perhaps beyond the capacity of the petitioner. However, it also provides an indication that if a lesser amount is fixed by way of compensation then the same could possibly be paid by the petitioner. Since an amount of Rs. 1,12,000/- was offered to be paid before the Appellate Court, it is obvious that the petitioner had the ability to pay that amount of compensation. Normally, this matter could have been remanded for adducing evidence on the question of ability to pay but that would only protract the proceedings further. Because an indication has clearly been given by the offer made before the Appellate Court, in my view, it would be appropriate that the petitioner is directed to pay compensation of Rs. 1,12,000/-to the complainant. Whenever this amount is paid by the petitioner and or on behalf of the petitioner to the complainant, the sentence in default already undergone would be taken as having been the sentence awarded and the petitioner would be entitled to be released forthwith. The Compensation amount so awarded be deposited with the Appellate Court in the form of a bank draft in the name of the complainant who may then withdraw the same. The Compensation amount so awarded be deposited with the Appellate Court in the form of a bank draft in the name of the complainant who may then withdraw the same. ( 7 ) WITH this modification in the compensation amount and the in-default sentence, this revision petition stands disposed of.