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2018 (1) TMI 772

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.... as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;" 2. Heard Sri.Brijesh Mohan, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondents 1 to 4 (State authorities). 3. The petitioner herein was convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act as per Ext.P-1 judgment dated 6.2.1998 rendered by the Chief Judicial Magistrate's Court, Kasargod, in C.C.No.270/1996 and he was sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs. 5,50,000/- and in default thereof, to undergo simple imprisonment for a further period of 3 months. Out of the said fine amount of Rs. 5,50,000/-, Rs. 5 lakhs was directed to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. The said conviction and sentence imposed by the trial court was affirmed by the appellate Sessions Court and thereafter, the petitioner had taken up the matter in revision by filing Crl.R.P.No.384/2000. This Court as per Ext.P-2 order rendered on 26.10.2007, had confirmed the said conviction and modified the substantive sentence of imprisonment for 3 mo....

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....The action taken by the trial court in issuing non-bailable warrant against the petitioner even after he had suffered the sentence for the abovesaid period, was thus clearly illegal and ultra vires. The trial court realising its mistake, in issuing nonbailable warrant against the petitioner had later recalled the non-bailable warrant. But later it appears that non-bailable warrant was again issued against the petitioner and as per the present report filed by the trial court, the said non-bailable warrant was erroneously issued and the same has been already recalled, etc. 5. In the light of the abovesaid aspects and taking into consideration the report in that regard submitted by the trial court, it is only to be ordered that the action taken by the trial court in issuing nonbailable warrant against the petitioner in respect of the present case even after he has suffered the sentence for the abovesaid period from 6.9.2003 to 6.2.2004 is clearly illegal and ultra vires. As the trial court has recalled the said N.B.W. proceedings, no separate directions are necessary, except to direct the trial court to ensure that the non-bailable warrant is not issued against the petitioner in resp....

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....er any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule, or bye-law contains an express provision to the contrary. The offence in question involved in this case is created by a special enactment (viz., Negotiable Instruments Act). There are no provisions in the Negotiable Instruments Act, which regulates the manner and methodology for recovery of fines, etc. Therefore, going by the mandate of Sec.25 of the General Clauses Act, the provisions contained in Secs.63 to 70 of the Indian Penal Code will also regulate the matters regarding the recovery of fine, etc. in respect of offence punishable under Sec. 138 of the N.I. Act. 8. Secs.64, 68 and 70 of the Indian Penal Code, read as follows: Sec. 64: "Sec.64: Sentence of imprisonment for non-payment of fine.- In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of pay....

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....ssary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." Sec. 431: 'Sec. 431: Money ordered to be paid recoverable as a fine.- Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construe....

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....y the Apex Court in Kumaran's case supra that the deeming provision in Sec.431 of the Cr.P.C. will be applicable to Sec.421(1) as well and despite the fact that last proviso to Sec.421(1) makes a reference only to an order for payment of expenses or compensation out of fine, which would necessarily refer only to Sec. 357(1) and not Sec.357(3) of the Cr.P.C. Despite this being so, so long as compensation has been directed to be paid, albeit under Sec. 357(3), Sec. 431 of the Cr.P.C. Sec. 70 I.P.C. and Sec. 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided in Sec.421 (1) of the Cr.P.C. That this would be without any necessity for recording any special reasons. This is because Sec.421(1) proviso contains disjunctive "or" following the recommendations of the Law Commission, that proviso to old Sec. 386(1) should not be a bar to issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. That the last part inserted into proviso to Sec.421(1) Cr.P.C. as a result of the abovesaid recommendation of the Law Commissi....

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....uld be recoverable when compensation has been ordered.-We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under Section 545 has been passed for payment of expenses or compensation out of the fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to Section 386(1) should make this clear." 24. Following Para 28.10, the words "or unless it made an order for the payment of expenses or compensation out of the fine under Section 357" was added to the proviso which was contained in old Section 386(1) and continued in Section 421(1). 25. At this juncture, it is important to note that in Vijayan v. Sadanandan K. [(2009) 6 SCC 652....

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....ot only to Section 421, but also to Section 64 of the Penal Code. This being the case, Section 70 IPC, which is the last in the group of sections dealing with sentence of imprisonment for non-payment of fine must also be included as applying directly to compensation under Section 357(3) as well. The position in law now becomes clear. The deeming provision in Section 431 will apply to Section 421(1) as well, despite the fact that the last part of the proviso to Section 421(1) makes a reference only to an order for payment of expenses or compensation out of a fine, which would necessarily refer only to Section 357(1) and not Section 357(3). Despite this being so, so long as compensation has been directed to be paid, albeit under Section 357(3), Section 431, Section 70 IPC and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1). This would, however, be without the necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the pr....

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.... the instant case, where the accused has already suffered the default sentence for offence punishable under Sec.138 of the Negotiable Instruments Act and he has not paid the compensation amount payable in terms of Sec.357(3)of the Cr.P.C., then the same is recoverable as if it were a fine in terms of the deeming provision contained in Sec.431(1) of the Cr.P.C., by taking recourse to the procedure for recovery of fine contained in Sec. 421 (1). 13. Sec.70 of the I.P.C. stipulates that fine or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and that if under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period and that the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts. Since the maximum sentence that can be imposed for the offence under Sec.138 of the Negotiable Instruments Act is 2 years, the fine or any part thereof, if remains unpaid may be levied at any point within a period of 6 years after passing of the sentence, going by the p....

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.... been held in para 8 of the aforesaid decision in Mehtab Singh's case supra as follows: "8. Section 70 says that the State shall levy fine within six years from the date of the sentence. To levy is to realise or to collect. It is clear that what is meant is that within six years the State must commence proceedings for realisation, not complete it. It is beyond the State's power to complete the realisation proceedings, but it is within its power to initiate such proceedings. What is contemplated is that the State shall commence recovery proceedings. Once such steps are taken, the plea of limitation is out of bounds for the sentencee. Section 70 has to be read in a common sense way and, therefore, when the provision speaks of levying fine it postulates that the fine is leviable otherwise. If, however, on account of an order of a higher court, the fine has ceased to be leviable, thanks to the suspension of the levy of the fine, the period of limitation does not start to run under Section 70 of the IPC." So it is clear that Sec.70 of the I.P.C. lays down that the State should levy fine within six years from the passing of the sentence, etc. and that to levy is to realise or to c....

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....istrict Collector, Kasargod, will ensure that a proper and effective inquiry is conducted through the Tahsildar of the area concerned so as to ascertain the names and addresses of the legal representatives of the deceased original complainant (Sri.F.J.Rodrigus, S/o.Joseph Rodrigus, Fort Road, Kasargod). A report in that regard should be submitted by the District Collector/Tahsildar concerned before the trial court concerned (Court of Chief Judicial Magistrate, Kasargod) who is dealing with the distress warrant in C.C.No.270/1996 in order to enable the said court to ensure that the monies recovered are paid to the legal representatives of the deceased complainant. The office of the Advocate General, Kerala will forward a copy of this order to the District Collector, Kasargod. After receiving such report, the trial court will issue necessary notice of intimation to the legal representative/s of the deceased complainant about the pendency of the distress warrant for recovery of the unpaid compensation amount in this case. Accordingly, the following directions and orders are passed: (i) It is declared that the action taken by the trial court in issuing non-bailable warrant against th....