SATYENDRA KUMAR MEHRA @ SATENDERA KUMAR MEHRA versus THE STATE OF JHARKHAND on 23 March 2018

[2018] 4 S.C.R. 1033

SATYENDRA KUMAR MEHRA @ SATENDERA KUMARMEHRA

v.

THE STATE OF JHARKHAND

(Criminal Appeal No. 406 of 2018)

MARCH 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Criminal Procedure, 1973 – s.357(2) – Appellantwas tried for the offence punishable u/ss.420,467,468,471 r/w.120-BIPC – Trial Court convicted the appellant and awarded sentencewith fine – Appellant filed appeal before the High Court and alsofiled application for suspension of sentence – High Court allowedthe application for suspension of sentence, however, directedappellant to deposit the fine amount awarded before the Court below – Whether by virtue of s.357(2) Cr.P.C., the said fine which waspart of sentence automatically was stayed till the decision of theappeal and would not have been directed by the High Court to bedeposited by the appellant – Held: No infirmity in the order of theHigh Court – In instant case, s.357(2) Cr.P.C. not attracted sincethere was no direction of payment of any compensation out of thefine imposed by the trial court as part of sentence – s.357 Cr.P.C.(2)comes into play only where any order of payment of compensationutilising the fine imposed as sentence u/s.357(1) Cr.P.C. orcompensation as directed u/s. 357(3) Cr.P.C. is made – Present beingneither a case of s.357(1) Cr.P.C. nor s.357(3), sub-section(2) ofs.357 Cr.P.C. clearly not applicable.

Code of Criminal Procedure, 1973 – s.357(2) – Purpose andobject – Held: s.357(1) Cr.P.C. contemplated utilisation of fineimposed in certain circumstances as compensation to be paid tovictim – Sub-s.(2) of s.357 engrafted an embargo that such paymentshall not be made till the period allowed for appeal has elapsed orif the appeal is filed, till the same is decided – Legislature wasconscious that compensation paid if utilised, there may not beappropriate measures to recover the said amount utilised from victimto whom the compensation is paid hence embargo in payment hasbeen engrafted in sub-s.(2) – Thus at best sub-s.(2) of s.357 Cr.P.C.

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Ais a provision which defers or withholds the utilisation of the amountof compensation awarded till the limitation of appeal elapses or iffiled till it is decided – The provision in no manner stays the sentenceof fine during the pendency of the appeal.

Dismissing the appeal, the CourtB

HELD: 1. The fine is contemplated to be utilised forcompensating different circumstances as enumerated in Section357(1) Cr.P.C. Section 357(1) Cr.P.C. sub-section (2) of Section357 Cr.P.C. has been engrafted in reference to what was statedin sub-Section (1) of Section 357 Cr.P.C. Crucial words used inCsub-section (2) of Section 357 Cr.P.C. are “no such paymentshall be madebefore the period allowed for presenting the appealhas elapsed, or if an appeal be presented, before the decision ofthe appeal”. Thus, what is prohibited under Section 357(2) Cr.P.C.is that payment of compensation utilising the fine be not paid tillthe period allowed for presenting the appeal has elapsed, or if anDappeal is filed then before the decision of the appeal. It does notinvolve any concept of stay of sentence. [Para 14] [1041-C-D]

2. Section 357 Cr.P.C. contains an embargo that on passinga judgment of sentence of fine, the fine be not utilised for paymentof compensation till contingency as mentioned therein does notEoccur. The sentence awarded by the Court including sentence offine is in no way affected by embargo contained in Section 357(2)Cr.P.C. The operation of Section 357(2) Cr.P.C. is restricted topayment of compensation as contemplated by Section 357(1) and(3) Cr.P.C. The heading of the Section 357 Cr.P.C. i.e. “Order toFpay compensation” as well as contents of the Section lead to onlyone conclusion that the entire provision has been engraftedregarding payment of compensation out of the fine imposed orwhen Court imposes sentence the fine is not part of which, theCourt may by way of compensation direct payment of such amountto a person who has suffered the injury. Thus, Section 357 Cr.P.C.Ghas nothing to do with suspension of sentence awarded by thetrial court and the sentence of fine imposed on the accused is inno way affected by Section 357(2) Cr.P.C. The present is not acase where trial court has directed payment of any compensationto anyone out of fine imposed. There is no direction for paymentHof compensation in the order of the trial court nor present case is covered by the circumstances mentioned in sub-clauses (a) to(d) of Section 357(1) Cr.P.C. Present is also not a case of Section357(3) Cr.P.C. Hence, there is no question of applicability ofSection 357(2) Cr.P.C. The heading of Section 357 Cr. P.C. throwsconsiderable light in finding the object and purpose of the Section.Section 357 Cr.P.C. is only attracted when Court orders forpayment of compensation. Section 357 is not attracted in any othercase. It is well settled that heading of the Section plays a rolewhen there is any doubt in interpretation of the Section. [Para15] [1041-F-H; 1042-A-C]

3. Section 357(1) Cr.P.C. contemplated utilisation of fineimposed in certain circumstances as compensation to be paid tovictim. Sub-section (2) engrafted an embargo that such paymentshall not be made till the period allowed for appeal has elapsedor if the appeal is filed, till the same is decided. Legislature wasconscious that compensation paid if utilised, there may not beappropriate measures to recover the said amount utilised fromvictim to whom the compensation is paid hence embargo inpayment has been engrafted in sub-section (2). Thus at best sub-section (2) of Section 357 Cr.P.C. is a provision which defers orwithholds the utilisation of the amount of compensation awardedtill the limitation of appeal elapses or if filed till it is decided. Theprovision in no manner stays the sentence of fine during thependency of the appeal. The purpose for which sub-section (2) ofSection 357 Cr.P.C. has been enacted is different as noted aboveand it never contemplates as stay of sentence of fine imposed onaccused. [Para 33] [1052-H; 1053-A-C]

4. Section 357(2) Cr.P.C. was not attracted in the presentcase since there was no direction of payment of any compensationout 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 ofpayment of compensation utilising the fine imposed as sentenceunder Section 357(1) Cr.P.C. or compensation as directed underSection 357(3) Cr.P.C. is made. Present being neither a case ofSection 357(1) Cr.P.C. nor Section 357(3), sub-section(2) ofSection 357 Cr.P.C. is clearly not applicable. [Para 37] [1054-A-B]

Kedar Nath v. State of Haryana 2006 (3) PLR 194 –distinguished.

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Bharat Mandal son of Sitaram Mandal & Ors. v. TheState of Bihar, 2012 (2) PLJR 855; Dilip S. Dahanukarv. Kotak Mahindra Co. Ltd. and Another (2007) 6 SCC528 : [2007] 4 SCR 1122; K.C.Sareen v. C.B.I.Chandigarh (2001) 6 SCC 584 : [ 2001] 1 Suppl.SCR 224 – inapplicable.

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Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. andanother, (2001) 2 SCC 416 : [2001] 1 SCR 390; Bhinkaand others v. Charan Singh, AIR 1959 SC 960 : [1959]Suppl. SCR 798; N.C. Dhoundial v. Union of Indiaand others, (2004) 2 SCC 579 : [2003] 6 Suppl.CSCR 674; Irrigation Engineering Company (India)Private Limited and Anr. v. The Small-Scale IndustrialDevelopment Bank of India (SIDBI) 2003 (6) KarLJ387; Hari Singh v. Sukhbir Singh and others (1988) 4SCC 551 : [1988] 2 Suppl. SCR 571 – referred to.

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Case Law Reference

From the Judgment and Order dated 23.02.2018 of the High CourtGof Jharkhand at Ranchi in I. A. No. 892 of 2018 in Crl. Appeal (SJ) No.176 of 2018.

Sunil Kumar, Sr. Adv., Himanshu Shekhar, Adv. for the Appellant.Aman Lekhi, ASG, Rajiv Nanda, T. A. Khan, B. V. Balramdas,HAdvs. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filed againstan order of the High Court of Jharkhand at Ranchi in Criminal AppealNO.176 of 2018 by which High Court by allowing I.A.No. 892 of 2018filed by the appellant, has directed to grant suspension of sentence ofthe appellant. The High Court further directed that the appellant shouldalso deposit the fine amount awarded before the court below. Theappellant is aggrieved only against that part of the order by which theHigh Court directed the deposit of fine amount.

2. The appellant was an accused in R.C. Case No.68(A) of 1996-State (through CBI) vs. Lalu Prasad @ Lalu Prasad Yadav and others.Accused were tried for the offence punishable under Sections 120-B/read with 409, 420, 467, 468, 471 and 477-A of the IPC read with Section13(1)(c) & (d) and 13(2) of Prevention of Corruption Act, 1988. Thetrial court by order dated 24.01.2018 convicted the accused and awardedsentence. The appellant, who was one of the accused, was awarded thefollowing sentence by the trial court:

“44. Satyendra Kumar Mehra convicted for offencepunishable U/s 120-B/420, 120-B/467, 120-B/468 and 120-B/471 IPC:

U/s 120-B/420 IPC R.I. of Five(05) Years with fine ofRs.25,000/- and in default of payment of fine S.I. for Three(03) Months.

U/s 120-B/467 IPC R.I. of Five (05) Years with fine ofRs.25,000/- and in default of payment of fine S.I. for Three(03) Months.

U/s 120-B/468 IPC R.I. of Five(05) Years with fine ofRs.25,000/- and in default of payment of fine S.I. for Three(03) Months.

U/s 120-B/471 IPC R.I. of Five(05) Years with fine ofRs.25,000/- and in default of payment of fine S.I. for Three

(03) Months.

All the sentences shall run concurrently and the periodundergone shall be set off.”

3. Aggrieved against the above conviction and sentence order theappellant filed Criminal Appeal No.176 of 2018 before the High Court.The appellant also filed application praying suspension of sentence. After A

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Ahearing, the High Court allowed the application granting the privilege ofsuspension of sentence to the appellant and directing the appellant bereleased on bail on furnishing bail bond of Rs.50,000/- with two sureties.However, while allowing the application the High Court passed thefollowing direction:

B“Appellant should also deposit the fine amount awarded beforecourt below.”

4. The appellant aggrieved by the aforesaid direction of the HighCourt to deposit the fine amount awarded by the court below has comeup in this appeal.

C5. We have heard Shri Sunil Kumar, learned senior counselappearing for the appellant and Shri Aman Lekhi, learned AdditionalSolicitor General for India appearing for the respondent-State.

6. Learned counsel for the appellant relying on Section 357 sub-Section (2) of Criminal Procedure Code submits that since the appellanthas already filed an appeal before the High Court, the amount of fineDimposed by the trial court automatically stands stayed till the decision ofthe appeal. He submits that in the present case sentence of fine wasalso imposed by the trial court which is the subject of the appeal, henceSection 357(2) Cr.P.C. is attracted in the present case and the HighCourt should not have directed the appellant to deposit the fine amountEawarded by the trial court which direction is in the teeth of provisions ofSection 357(2) Cr.P.C. Learned counsel for the appellant in support ofhis submission placed reliance on the judgment of this Court reported inDilip S. Dahanukar vs. Kotak Mahindra Co.Ltd. And another, (2007)6 SCC 528.

7. Shri Aman Lekhi, learned Additional Solicitor General for IndiaFrefuting the submission of learned counsel for the appellant contendsthat the High Court did not commit error in directing the appellant todeposit the fine amount awarded by the court below. He submits thatprovisions of Section 357(2) Cr.P.C. is not attracted in the present case.He submits that what is contemplated by sub-Section (2) of Section 357GCr.P.C. is “payment of the compensation as envisaged in Section 357(1)Cr.P.C.”. He submits that stay of payment of compensation is entirelydifferent from the stay of fine which is a part of sentence imposed onaccused.

8. He submits that this Court in Stanny Felix Pinto vs. JangidHBuilders Pvt. Ltd. and another, (2001) 2 SCC 416, has also upheld a similar order passed by the High Court where the High Court directedpayment of rupees four lakhs as a condition to suspend the sentencewhich was part of the fine imposed as part of sentence.

9. Learned counsel for the appellant submits that judgment of thisCourt in Stanny Felix Pinto(supra) cannot be pressed into service withregard to interpretation of Section 357(2) Cr.P.C. which section is neitherreferred to nor adverted to by this Court in above case.

10. We have considered the submissions of the learned counselfor the parties and perused the records. From the facts brought onrecord, it is clear that the sentence awarded to the appellant was asentence of R.I. of five years with payment of fine of Rs.25,000/- and indefault S.I. of three months. The said sentence was recorded in fourcases and all sentences were to run concurrently. Thus, the fine waspart of the sentence. The question which is to be answered in the presentcase is as to whether by virtue of Section 357(2) Cr.P.C., the said finewhich was part of sentence automatically was stayed till the decision ofthe appeal and would not have been directed by the High Court to bedeposited by the appellant.

11. For answering the question we need to reflect upon the statutoryscheme as delineated by Section 357(2) Cr.P.C. Section 357(2) Cr.P.C.is part of Chapter XXVII- “THE JUDGMENT” of the CriminalProcedure Code, 1973. Section 353 deals about the judgment, itspronouncement, signatures, delivery and other aspects. Section 354 dealswith language and contents of judgment. Section 355 refers toMetropolitan Magistrate’s judgment. Section 356 deals with order fornotifying address of previously convicted offender and then Section 357bears heading “Order to pay compensation”. Order to paycompensation, thus, is a part of judgment where Court directs paymentfor compensation.

12. Section 357(1) Cr.P.C. contemplates that when a Court imposesa sentence of fine or a sentence of which fine forms a part, the Courtmay, while passing judgment, order the whole or any part of the finerecovered to be applied. Section 357 is to the following effect:- “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, A

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the Court may, when passing judgment order the whole orany part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in theprosecution; (b) in the payment to any person of compensation for anyloss or injury caused by the offence, when compensation is,in the opinion of the Court, recoverable by such person in aCivil Court;

(c) when any person is convicted of any offence for havingcaused the death of another person or of having abettedthe commission of such an offence, in paying compensationto the persons who are, under the Fatal Accidents Act, 1855(13 of 1855), entitled to recover damages from the personsentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence whichincludes theft, criminal misappropriation, criminal breachof trust, or cheating, or of having dishonestly received orretained, or of having voluntarily assisted in disposing of,stolen property knowing or having reason to believe the sameto be stolen, in compensating any bona fide purchaser ofsuch property for the loss of the same if such property isrestored 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 allowedfor presenting the appeal has elapsed, or, if an appeal bepresented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does notform a part, the Court may, when passing judgment orderthe accused person to pay, by way of compensation, suchamount as may be specified in the order to the person whohas suffered any loss or injury by reason of the act for whichthe accused person has been so sentenced.

(4) An order under this section may also be made by anAppellate Court or by the High Court or Court of Sessionwhen exercising its powers of revision.

(5) At the time of awarding compensation in any subsequentcivil suit relating to the same matter, the Court shall takeinto account any sum paid or recovered as compensationunder this section.”

13. All the circumstances in sub-section (1) of Section 357 referto direction to pay compensation out of the fine imposed. Thus, all thecircumstances are circumstances where fine imposed and recovered isto be applied in the above circumstances.

14. The fine is thus contemplated to be utilised for compensatingdifferent circumstances as enumerated in Section 357(1) Cr.P.C. Sub-Section (2) of Section 357 Cr.P.C. has been engrafted in reference towhat was stated in sub-Section (1) of Section 357 Cr.P.C. Crucial wordsused in sub-Section (2) of Section 357 Cr.P.C. are “no such paymentshall be madebefore the period allowed for presenting the appeal haselapsed, or if an appeal be presented, before the decision of the appeal”.Thus, what is prohibited under Section 357(2) Cr.P.C. is that payment ofcompensation utilising the fine be not paid till the period allowed forpresenting the appeal has elapsed, or if an appeal is filed then before thedecision of the appeal. It does not involve any concept of stay of sentence.

15. Chapter XXIX deals with the appeals. In the said ChapterSection 389 deals with the subject “suspension of sentence pending theappeal; release of appellant on bail”. Section 389(1) Cr.P.C. empowersthe Appellate Court to order that the execution of the sentence or orderappealed against be suspended and, also, if he is in confinement, that hebe released on bail. Thus, the power of suspension of sentence emanatesfrom Section 389 Cr.P.C. where Appellate Court is empowered to passsuch an order. Sections 357 and 389 Cr.P.C. operate in two differentfields. Section 357 Cr.P.C. contains an embargo that on passing ajudgment of sentence of fine, the fine be not utilised for payment ofcompensation till contingency as mentioned therein does not occur. Thesentence awarded by the Court including sentence of fine is in no wayaffected by embargo contained in Section 357(2) Cr.P.C. The operationof Section 357(2) Cr.P.C. is restricted to payment of compensation ascontemplated by Section 357(1) and (3) Cr.P.C. The heading of the Section357 Cr.P.C. i.e. “Order to pay compensation” as well as contents of theSection lead to only one conclusion that the entire provision has beenengrafted regarding payment of compensation out of the fine imposedor when Court imposes sentence the fine is not part of which, the Court A

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Amay by way of compensation direct payment of such amount to a personwho has suffered the injury. We, thus, are of the view that Section 357Cr.P.C. has nothing to do with suspension of sentence awarded by thetrial court and the sentence of fine imposed on the accused is in no wayaffected by Section 357(2) Cr.P.C. The present is not a case where trialcourt has directed payment of any compensation to anyone out of fineBimposed. There is no direction for payment of compensation in the orderof the trial court nor present case is covered by the circumstancesmentioned in sub-clauses (a) to (d) of Section 357(1) Cr.P.C. Present isalso not a case of Section 357(3) Cr.P.C. Hence, there is no question ofapplicability of Section 357(2) Cr.P.C. The heading of Section 357 Cr. P.C.Cthrows considerable light in finding the object and purpose of the Section.Section 357 Cr.P.C. is only attracted when Court orders for payment ofcompensation. Section 357 is not attracted in any other case. It is wellsettled that heading of the Section plays a role when there is any doubtin interpretation of the Section. This Court in Bhinka and others vs.

Charan Singh, AIR 1959 SC 960, while examining the role of a headingDof section while interpreting a section noticed the following principle; “15......Section 180 provides for the eviction of a personwho but for the eviction would become a hereditary tenantby efflux of the prescribed time. If there is any ambiguity —we find none — it is dispelled by the heading given to theEsection and also the description of the nature of the suitgiven in the Schedule. The heading reads thus:

“Ejectment of person occupying land without title.”

“Maxwell On Interpretation of Statutes, 10th Edn., gives theFscope of the user of such a heading in the interpretation ofa section thus, at p. 50:

“The headings prefixed to sections or sets of sections in somemodern statutes are regarded as preambles to those sections.They cannot control the plain words of the statute but theyGmay explain ambiguous words.”

If there is any doubt in the interpretation of the words in thesection, the heading certainly helps us to resolve thatdoubt.......”

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16. The similar proposition was again reiterated by three-JudgeBench of this Court in N.C. Dhoundial vs. Union of India and others,(2004) 2 SCC 579, where in paragraph 15 following has been held:

“15......The language employed in the marginal heading isanother indicator that it is a jurisdictional limitation. It is asettled rule of interpretation that the section heading ormarginal note can be relied upon to clear any doubt orambiguity in the interpretation of the provision and to discernthe legislative intent (vide Uttam Das Chela Sunder Das v.Shiromani Gurdwara Parbandhak Committee, (1996) 5 SCC71 and Bhinka v. Charan Singh, AIR 1959 SC 960).”

17. Now we come to the judgment which has been relied on bythe learned counsel for the appellant, i.e., Dilip S. Dahanukar (supra).In the above case this Court had occasion to interpret Section 357 Cr.P.C.The appellant therein was accused No.2, who was directed to paycompensation to the complainant of Rs.15 lakh apart from the simpleimprisonment. The facts have been noted in paragraph 3 of the judgmentwhich is to the following effect:

“3. Accused 1, M/s Goodvalue Marketing Co. Ltd., acompany registered and incorporated under the CompaniesAct, 1956 and Accused 2, the appellant herein were convictedfor commission of an offence involving Section 138 of theAct by a judgment of conviction and sentence dated 23-2-2006 holding:

“Accused 1 company, M/s Goodvalue Marketing Co. Ltd.stands convicted for the offence punishable under Section138 read with Section 141 of the Negotiable Instruments Act.

Accused 1 company is sentenced to pay a fine of Rs25,000 (Rupees twenty-five thousand only). In default ofpayment of fine, Accused 2 Mr Dilip Dahanukar, theChairman of Accused 1 and representative at the trial, shallsuffer SI for 1 month.

Accused 2 Mr Dilip S. Dahanukar, stands convicted for theoffence punishable under Section 138 read with Section 141of the Negotiable Instruments Act, 1881.

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AAccused 2 is sentenced to suffer SI for 1 month.

Accused 2 is also directed to pay compensation to thecomplainant, quantified (sic) at Rs 15,00,000 (Rupees fifteen lakhsonly), under Section 357(3) CrPC. Accused 2 is entitled to paythe amount of compensation in two equal monthly instalments ofBRs 7,50,000 each. The first instalment of Rs 7,50,000 shall bepaid on or before 23-3-2006 and the second instalment ofRs 7,50,000 shall be paid on or before 24-4-2006; in default ofpayment of the amount of compensation Accused 2 shall sufferfurther SI for 2 months.”

C18. An appeal was preferred against the conviction order. TheAppellate Court while admitting the appeal directed the accused to deposita sum of Rs.5 lakh each within four weeks from the said date. Writpetition was filed questioning the legality of the said order of the AppellateCourt which was dismissed and thereafter the matter was taken to thisCourt. A submission was raised before this Court that having regard toDthe provisions of Section 357(2) of the Code, the impugned judgment iswholly unsustainable inasmuch as in terms thereof the amount of fineimposed would automatically be suspended.

19. In the above case this Court considered sub-Sections (1), (2)and (3) of Section 357 of the Code and observed that sub-Section (2)Eshall be applicable both in regard to compensation as well as directionunder sub-Section (3). In paragraphs 43, 44 and 45 following has beenlaid down:

“43. It does not appeal to us that although a compensationpayable out of the quantum of fine would remain stayed underFsub-section (2) of Section 357 of the Code, if a compensation isdirected to be paid under sub-section (3) thereof, the same wouldnot attract the said provision. (See P. Suresh Kumar v. R.Shankar, [(2007) 4 SCC 752].)

44. Magistrates cannot award compensation in addition toGfine. When a fine is imposed, however, the private party has noright to insist that compensation may be awarded to him out ofthe amount of fine. The power to award compensation underSection 357(3) is not an ancillary power. It is an additional power.(See Balraj v. State of U.P., [(1994) 4 SCC 29].)

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45. Clause (b) of sub-section (1) of Section 357 and sub-section (1) of Section 357 and sub-section (3) of Section 357seek to achieve the same purpose. What is necessary is to findout the intention of the lawmaker and the object sought to beachieved. Sub-section (2) of Section 357 uses the word “fine”.It does not say that what would be stayed i.e. application of fine.Sub-section (2) of Section 357, in our opinion, does notcontemplate any other interpretation. Even assuming that MrLalit was correct in his submission, still then sub-section (3) wouldbe squarely attracted.”

20. Referring to Section 389 Cr. P.C., this Court noticed thatsuspension of a sentence and enlarging an appellant on bail, who isconvicted and realisation of fine has been dealt with by Parliament underdifferent provisions of the Code. In paragraph 51 following has been laiddown:

“51. Section 389 does not deal with exactly a similarsituation. Section 389 of the Code is to be read with Section387 thereof. Suspension of a sentence and enlarging anappellant on bail, who is convicted and realisation of finehas been dealt with by Parliament under different provisionsof the Code. The power of the court, thus, to suspend asentence in regard to realisation of compensation may bedifferent from that of a direction in realisation of fine.”

21. This Court in the aforesaid case has noted the distinctionbetween fine of Rs.25,000/- which was imposed on the Company andcompensation of Rs.15 lakh which was directed to be paid by theChairman of the Company. In paragraph 71 the aforesaid was mentionedto the following effect:

“71. We are prima facie of the opinion (without goinginto the merit of the appeal) that the direction of the learnedtrial Judge appears to be somewhat unreasonable. Theappellant herein has been sentenced to imprisonment. Onlyfine has been imposed on the Company. Thus, for all intentand purpose, the learned trial Judge has invoked both sub-sections (1) and (3) of Section 357 of the Code. The liabilityof the appellant herein was a vicarious one in terms ofSection 141 of the Negotiable Instruments Act. The question AB

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Amay also have to be considered from the angle that the learnedtrial Judge thought it fit to impose a fine of Rs 25,000 onlyupon the Company. If that be so, a question would arise asto whether an amount of compensation for a sum of Rs 15lakhs should have been directed to be paid by the Chairmanof the Company. We feel that it is not.”B

22. This Court ultimately directed the appellant to deposit rupeesone lakh towards the compensation and recorded its conclusion inparagraph 72 which is to the following effect:

“72. We, therefore, are of the opinion:

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(i) in a case of this nature, sub-section (2) of Section 357 of theCode of Criminal Procedure would be attracted even when theappellant was directed to pay compensation;

(ii) the appellate court, however, while suspending the sentence,was entitled to put the appellant on terms. However, no suchDterm could be put as a condition precedent for entertaining theappeal which is a constitutional and statutory right;

(iii) the amount of compensation must be a reasonable sum;

(iv) the court, while fixing such amount, must have regard to allrelevant factors including the one referred to in sub-section (5)Eof Section 357 of the Code of Criminal Procedure;

(v) no unreasonable amount of compensation can be directed tobe paid.”

23. This Court, in the above case, was dealing with the questionFof payment of compensation which was awarded by the Court undersub-Section (3) of Section 357 Cr.P.C. The Court was not dealing withfine which was part of the sentence. The Court, thus, had no occasion toconsider the issue which has arisen in the present case. We, in the presentcase, are not concerned with payment of any compensation or applicabilityof Section 357(2) Cr.P.C. with regard to payment of any suchGcompensation.

24. We also need to notice the judgment of this Court in StannyFelix Pinto (supra). In the above case along with sentence ofimprisonment, fine was also imposed under Section 138 of the NegotiableInstruments Act. The High Court while entertaining the revision grantedH

suspension of the sentence by imposing a condition that part of the fineshall be remitted in court within a specified time which direction waschallenged in this Court. This Court upheld the said direction. Followingwas held in paragraph 2:

“2. When a person was convicted under Section 138 ofthe Negotiable Instruments Act and sentenced toimprisonment and fine he moved the superior court forsuspension of the sentence. The High Court whileentertaining his revision granted suspension of the sentenceby imposing a condition that part of the fine shall be remittedin court within a specified time. It is against the said directionthat this petition has been filed. In our view the High Courthas done it correctly and in the interest of justice. We feelthat while suspending the sentence for the offence underSection 138 of the Negotiable Instruments Act it is advisablethat the court imposes a condition that the fine part is remittedwithin a certain period. If the fine amount is heavy, the courtcan direct at least a portion thereof to be remitted as theconvicted person wants the sentence to be suspended duringthe pendency of the appeal. In this case the grievance of theappellant is that he is required by the High Court to remit ahuge amount of rupees four lakhs as a condition to suspendthe sentence. When considering the total amount of fineimposed by the trial court (twenty lakhs of rupees) there isnothing unjust or unconscionable in imposing such acondition. Hence, there is no need to interfere with theimpugned order. As such no notice need be issued to therespondent. Appeal is accordingly dismissed.”

25. It is true that this Court while deciding the said case did notconsider Section 357(2) Cr.P.C. Learned counsel for the appellant isright in his submission that the above judgment cannot be held to belaying down any ratio on applicability of Section 357(2) Cr.P.C.

26. We may also refer to a judgment of Karnataka High Court inIrrigation Engineering Company (India) Private Limited and Anr.vs. The Small-Scale Industrial Development Bank of India (SIDBI),2003 (6) KarLJ 387, where while interpreting Section 357(2) Cr.P.C.,Karnataka High Court had observed that word “payment” found in Section357(2) Cr.P.C. does not refer to the ‘deposit’ of compensation or fine

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Aamount by the accused. In the case before the High Court appellantwas convicted with sentence of fine. In appeal the High Court directedsuspension of sentence on the condition that the appellant shall deposit20% of the total fine which was challenged before the High Court onthe ground that in view of Section 357(2) Cr.P.C., Appellate Court wasnot right in asking them to deposit 20% of the total fine. In paragraphsB8,9 and 10 following was stated:

“8. What Section 357(2) of the Cr. P.C. says is as under:

“If the fine is imposed in a case which is subject to appeal,no such payment shall be made before the period allowedfor presenting the appeal has elapsed, or, if an appeal bepresented, before the decision of the appeal”.

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Nowhere it says that the Court of Appeal, while suspendingsentence imposed on an accused, cannot impose a conditionof depositing a part of fine amount. It is true that as per thedecision relied on for the petitioners, stay engrafted underthe said provision of law equally applies to the compensationgranted under Sub-section (3) of Section 357 of the Code,but it cannot be taken to hold or read that the AppellateCourt cannot pass a conditional order for suspending asentence.

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9. According to me, the word “payment” found in Section357(2) of the Cr. P.C., does not refer to the ‘deposit’ ofcompensation or fine amount by an accused in pursuanceof an order passed by Appellate Court while suspendingsentence imposed on an accused since, to my mind, the word“payment” refers to payment to be made to the person, whois ordered to be paid compensation and not the fine amount,inclusive of compensation amount to be ‘deposited’ byaccused. The stay engrafted into the said provision of law iswith reference to the ‘payment’ of such amount earlier to theexpiry of the appeal period or, where appeal has beenpreferred, during the pendency of such appeal. So, Section357 need not and cannot be read with Section 389 of the Cr.P.C. In fact, neither the petitioners/appellants applied for,nor the Appellate Court ordered suspension of the sentencerelating to compensation of Rs. 16 lakhs only. On the other F

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hand, when the suspension of impugned sentence passedagainst them is seen with the power given to the AppellateCourt under Section 389 of the Cr. P.C., besides the ambitor scope of Section 357 of the Cr. P.C., there will not be anydifficulty in holding that there is no error of record orinfirmity or irregularity or illegality in the impugned orderpassed by the Court of Sessions suspending the sentence oncondition of depositing 20% of the total fine amount imposedon them (petitioners).

10. In this view of the matter, neither Section 357(2) of theCr. P.C. nor the decision relied on for the petitioners is ofany help to the petitioners.”

27. Learned Counsel for the appellant has relied on threejudgments of High Courts, one of Punjab and Haryana High Court andtwo judgments of Patna High Court in support of his submissions. Weneed to refer to above judgments relied by the learned counsel for theappellant. The first judgment is judgment of Punjab and Haryana HighCourt reported in 2006 (3) PLR 194, Kedar Nath versus State ofHaryana. In the above case, the petitioner was convicted for offenceunder Section 138 of the Negotiable Instruments Act, 1881 for dishonourof several cheques amounting to Rs.1,50,000/-. The petitioner wassentenced to undergo rigorous imprisonment for period of one year andto pay a fine of Rs.3,00,000/-. It was also ordered that out of fine ofRs.3,00,000/-, a sum of Rs.2,50,000/-be given to the complainant ascompensation. An appeal was filed where Appellate Court suspendedthe sentence on the condition that petitioner will deposit an amount ofRs.1,50,000/- before the trial court. The aforesaid condition waschallenged by the petitioner in the High Court. It was submitted that inaccordance with Section 357 sub-section (2) Cr.P.C. petitioner was notliable to pay any amount of fine. The High Court accepted the submissionrelying on Section 357 sub-section (2) Cr.P.C.. In paragraph 8 of thejudgment, following was held:

“8. Against the judgment of conviction and order to sentence,an appeal was preferred by the petitioner, which was admittedfor hearing. While suspending the sentence, the AppellateCourt imposed a condition for depositing an amount ofRs.1,50,000/- out of the amount of fine of Rs.3 lacs imposedby the trial Court. In my opinion, by imposing the said A

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condition, the petitioner was compelled to pay the amountof fine, which according to sub-section (2) of Section 357Cr.P.C., the accused is not liable to pay till the finaladjudication of the appeal. Merely because out of theamount of fine of Rs.3 lacs, Rs.2,50,000/- was ordered to bepaid to the complainant as compensation, in my opinion,does not change the nature of fine. The judgment of the trialcourt is very clear that a fine of Rs.3 lacs was imposed alongwith the sentence of one year. The facts of this case aresquarely covered by the decision of the this Court in SabitaBehl’s case(supra). Thus, in my opinion, the Appellate Courtwas not justified while imposing the impugned conditiondirecting the petitioner to deposit an amount of Rs.1,50,000/- before the trial Court at the time of furnishing the bailbonds in view of the order of suspension of sentence passedby the Appellate Court.”

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28. The above case is clearly distinguishable from the presentcase. In the above case, there was direction within the meaning of Section357 sub-section (1) (b) Cr.P.C. for payment of compensation. HenceSection 357 sub-section (2) Cr.P.C. was relied by the Court. Present isnot a case of payment of any compensation out of fine imposed onappellant. Thus, the above case in no manner helps the appellant.

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29. Now we come to the second case relied by the appellant i.e.Division Bench Judgment of Patna High court in Bharat Mandal sonof Sitaram Mandal & Ors. Vs. The State of Bihar, 2012 (2) PLJR855. In the above case accused were convicted under Section 307/149IPC and Section 27 of the Arms Act. They were sentenced for lifeFimprisonment and further directed to pay a fine of Rs.20,000/- each.The appeal was filed in which the Appellate Court declined to stay thepayment of fine. The appellant pressed for stay of payment of fine whichwas considered by the High Court. High Court relied on Section 357sub-section (2) Cr.P.C. and accepted the submission of the appellantGthat the fine was not to be paid. Following was held in paragraph 7:

“7. The argument of Mr. Yogesh Chandra Verma, learnedcounsel for the appellant is based squarely upon the literalinterpretation from the Section. In our view, the submissionas made by Sri Verma has to be accepted. On the plainreading of sub-section (2) of Section 357 of the Code of H

Criminal Procedure we find that there is absolutely noambiguity in the provision as engrafted by the legislature, itclearly stipulates firstly, that no such payment shall be madebefore the period allowed for presenting the appeal haselapsed. Thus, this stops any court from enforcing payment,for the period in which appeal could be filed. It then secondlyprovides that the stay of action of realization or paymentwould continue if an appeal is presented till the decision ofthe appeal. “Decision of the Appeal” would only mean thefinal judgment in the appeal and not any order at anyinterlocutory stage because that would not be the decisionof the appeal. Thus, on the plain reading of Section 357(2)of the Code of Criminal Procedure a fine imposed, wouldautomatically get stayed firstly for the period which isavailable to file appeal and once the appeal is filed then tillthe decision of the appeal. That is the mandate of thelegislature itself, clear and unambiguous. The situationwould be different, if instead of awarding fine, in terms ofSection 357(3) of the Code of Criminal Procedurecompensation only is awarded. In such a case, the appellatecourt has judicial discretion to stay or, not to stay thecompensation so awarded depending upon the facts of thecase under consideration.”

30. From the facts noticed by the High Court it is not clear as towhether the amount of fine Rs.20,000/- was directed to be paid to thevictim. No such facts have been noticed in the judgment. If there wasno direction to pay any compensation out of the fine imposed the factsof the said case are similar to the case in hand. We have taken the viewthat if there is no direction to pay any compensation out of fine imposed,Section 357(2) Cr.P.C. is not attracted. We are of the view that the HighCourt’s observation that in view of Section 357 sub-section (2) of Cr.P.C.the realisation of fine would automatically get stayed does not take intoconsideration the distinction in a case where fine is part of sentence andthere is direction to pay compensation and in a case where there is nodirection to pay any compensation.

31. The third case relied by the learned Counsel for the appellantis again a Division Bench Judgment of Patna High Court in CriminalAppeal (DB) No.529 of 2012, Naresh Yadav@ Naresh Mahto &

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AOrs. Vs. The State of Bihar, decided on 26.06.2012. The Judgmentof Patna High Court has been placed on record along with the shortsubmissions of learned counsel for the appellant. A perusal of the judgmentindicate that Patna High Court has not noticed the facts of the case andthe nature of Order passed by the trial Court regarding imposition offine. The applicant prayed for modification of Order of the High CourtBby which the direction was issued for depositing the fine. Section 357sub-section (2) Cr.P.C. was relied and the Division Bench relying onearlier judgment of Patna High Court in Bharat Mandal & Ors. (Supra)modified the last paragraph of the Order dated 04.06.2012 providingthat the fine imposed shall remain stayed till the decision of the case.CThe above judgment relies only on Bharat Mandal & Ors. which hasalready been noted above by us hence this judgment also does not helpthe appellant.

32. The object and purpose of Section 357 Cr.P.C. was consideredby this Court in Hari Singh vs. Sukhbir Singh and others, (1988) 4DSCC 551. This Court held that the power given to the Court to direct forpayment of compensation is intended to do something for the victim.The provision was held to be a step forward in our criminal justicesystem. Following were the observations made in paragraph 10:

“10...It empowers the court to award compensation to victimsEwhile passing judgment of conviction. In addition toconviction, the court may order the accused to pay someamount by way of compensation to victim who has sufferedby the action of accused. It may be noted that this power ofcourts to award compensation is not ancillary to othersentences but it is in addition thereto. This power wasFintended to do something to reassure the victim that he orshe is not forgotten in the criminal justice system. It is ameasure of responding appropriately to crime as well ofreconciling the victim with the offender. It is, to some extent,a constructive approach to crimes. It is indeed a step forwardGin our criminal justice system. We, therefore, recommend toall courts to exercise this power liberally so as to meet theends of justice in a better way.”

33. What is the purpose and object of sub-Section (2) of section357 Cr.P.C.? Section 357(1) Cr.P.C. contemplated utilisation of fine H

imposed in certain circumstances as compensation to be paid to victim.Sub-section (2) engrafted an embargo that such payment shall not bemade till the period allowed for appeal has elapsed or if the appeal isfiled, till the same is decided. Legislature was conscious that compensationpaid if utilised, there may not be appropriate measures to recover thesaid amount utilised from victim to whom the compensation is paid henceembargo in payment has been engrafted in sub-section (2). Thus at bestsub-section (2) of Section 357 Cr.P.C. is a provision which differs orwithholds the utilisation of the amount of compensation awarded till thelimitation of appeal elapses or if filed till it is decided. The provision inno manner stays the sentence of fine during the pendency of the appeal.The purpose for which sub-section (2) of Section 357 Cr.P.C. has beenenacted is different as noted above and it never contemplates as stay ofsentence of fine imposed on accused.

34. We, however, make it clear that Appellate Court whileexercising power under Section 389 Cr.P.C. can suspend the sentenceof imprisonment as well as of fine without any condition or with conditions.There are no fetters on the power of the Appellate Court while exercisingjurisdiction under Section 389 Cr.P.C.. The Appellate Court could havesuspended the sentence and fine both or could have directed for depositof fine or part of fine.

35. Learned counsel for the appellant has also relied on thejudgment of this Court in K.C. Sareen vs. C.B.I. Chandigarh, (2001)6 SCC 584, where this Court has made the following observation:

“No doubt when the appellate court admits the appealfiled in challenge of the conviction and sentence for theoffence under the PC Act, the superior court should normallysuspend the sentence of imprisonment until disposal of theappeal, because refusal thereof would render the very appealotiose unless such appeal could be heard soon after the filingof the appeal.”

36. The above observation was made by this Court in the contextof suspension of sentence of imprisonment. The present is not a casewhere question of suspension of sentence of imprisonment is involvedrather Appellate Court has already suspended the sentence ofimprisonment. The above case also thus does not help the appellant inthe facts of the present case.

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A37. In view of the foregoing discussion, we are of the view thatSection 357(2) Cr.P.C. was not attracted in the present case since therewas no direction of payment of any compensation out of the fine imposedby the trial court as part of sentence. Section 357 Cr.P.C.(2) comes intoplay only where any order of payment of compensation utilising the fineimposed as sentence under Section 357(1) Cr.P.C. or compensation asBdirected under Section 357(3) Cr.P.C. is made. Present being neither acase of Section 357(1) Cr.P.C. nor Section 357(3), sub-section(2) ofSection 357 Cr.P.C. is clearly not applicable and the submissions raisedby the learned counsel for the appellant are without any substance. We,thus, do not find any infirmity in the impugned order of the High CourtCwhere the High Court has directed the appellant to deposit the fineawarded by the trial court. In the result, the appeal is dismissed.

Ankit Gyan Appeal dismissed.

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