- (1.) G. P. Mathur, J. This petition under Section 482, Cr. P. C. has been filed for quashing the condition implored in the bail order passed by ACJM, Lucknowon 19-4-1989 in a case under Sections 406/420, IPC whereby the applicant was directed to pay Rs. 5,000/- to the complainant by 30-4-1989 and Rs. 15,000/- within three months. It was further directed that in case the aforesaid condition is not complied with, bail granted to the applicant would stand automatically cancelled.
(2.) JAGAT Narain Roy-opposite party No. 2 lodged an F. I. R. against the applicant-Mahendra Nath Roy at P. S. Maha Nagar, Lucknow on 11-4-1989 alleging that he had given two bank drafts of Rs. 10,000/- each to the accused-applicant for depositing the same in the L. D. A. but in stead of depositing the drafts in the ac count of the complainant, the accused deposited the same in his own account and also in the account of his wife, as both of them had been allotted some property by the development authority. On the basis of the aforesaid F. I. R. a case was registered as Crime No. 159 of 1989 under Sections 406/420, IPC against the applicant at P. S. Maha Nagar, Lucknow. The applicant sur rendered in the Court of learned Magistrate and moved an application for bail. The 2nd ACJM, Lucknow by his order dated 19-4-1989 granted bail to the ap plicant. However, he imposed a condition in the bail order which has been impugned in the present petition. I have heard learned Counsel for the applicant learned Counsel for Op posite Party No. 2 and have perused the record. The bail order dated 19-4-1989 passed by learned Magistrate shows that while granting bail to the applicant, he has directed that the entire amount of Rs. 20,000/-, which according to the com plainant has been misappropriated by the applicant, has been directed to be paid to the complainant-Opposite Party No. 2. The question which requires considera tion is whether such a condition while granting bail could be imposed. Section 437 (3), Cr. PC. provides that a condition may be imposed by the Court while grant ing bail to a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more if the offence is under Chap ter 17 of the IPC. The condition can be imposed provided the requirements of sub-clauses (a), (b) or (c) of sub-section (3) of Section 437 are satisfied. The im pugned order shows that condition has not been imposed having regard to sub-clauses (a) or (b) of sub-section (3) of Section 437, Cr. PC. The case may at best be covered by sub-clause (o) which provides that a condi tion can be imposed which the Court con siders otherwise in the interest of justice. The allegation of the complainant is that he handed over two bank drafts of total amount of Rs. 20,000/- to the applicant for being deposited in the Lucknow Develop ment Authority but instead of doing so, he deposited the same in his own account and thereby caused a loss of Rs. 20,000/- to him. The result of the condition imposed in the bail order is that the applicant will have to pay the whole amount of Rs. 20,000/- to the complainant, otherwise his bail would be automatically cancelled. In my opinion, on the facts and circumstances of the case, the condition imposed by the learned Magistrate is wholly illegal. The com plainant has yet to lead evidence to estab lish his case. Even before the parties have adduced any evidence, a direction by which the entire disputed amount will have to be paid by the accused to the complainant will be highly unjust. One important fea ture which has been ignored by learned Magistrate is that in case the trial ends in acquittal, there is no legal method avail able for the accused to recover the amount from the complainant. Any direction for payment of money to the complainant by the accused prior to the decision of the case, is therefore, wholly illegal. The purpose of criminal prosecu tion is basically to punish an accused for the offence which he has committed. Its purpose is not to monitorily compensate the complainant. Section 357, Cr. P. C. provides that the Court while imposing a sentence of fine or order the whole or any part of the fine recovered for the payment to any person of compensation for any loss or injury caused by the offence, when com pensation is, in the opinion of the Court, recoverable by such person in a Civil Court. Therefore, while imposing a sen tence of fine, the Court can direct that certain amount out of fine be paid as com pensation to the complaint. Sub-section (2) of Section 357 lays down that where fine is imposed in a case which is subject to appeal no such compensation shall be paid to the complainant before the period allowed for presenting the appeal has elapsed or if an appeal has been presented, before the decision of appeal. The legisla tive intent, therefore, is that the compen sation should not be paid to the com plainant till the final decision of the case. The reason for such a provision is obvious. If the amount is paid to the complainant before the final decision of the case and if ultimately the accused is acquitted, it may not be possible for him to recover the amount from the complainant. The learned Magistrate has pre-judged the issue by directing payment of the amount to the complainant even before the trial had commenced and the complainant had not led any evidence whatever to establish his case. Therefore, the impugned direc tion for payment of amount by way of a condition in the bail order is wholly illegal and cannot be sustained.
(3.) IN the result, the petition succeeds and is hereby allowed. The direction issued for payment of amount of Rs. 20,000/- by the applicant to the complainant is hereby quashed. The remaining part of the bail order shall stand and the applicant shall continue to be on bail provided he has furnished bail bonds in accordance with law. Petition allowed. .;