2020 (9) TMI 109 - HC - Indian Laws

Grant of anticipatory bail - guilty and convicted under Section 138 r/w.142 of Negotiable Instruments Act - HELD THAT - A perusal of the case records indicates that after suffering conviction at the hands of the trial Court and the same being confirmed by the appellate Court the petitioner herein preferred Crl.R.C.No. 2012 of 2002. On 19.12.2006 Hon'ble Justice A.Selvam (as he then was) after discussing the facts of the case, has expressed his opinion that the sentence of imprisonment in default of payment of fine cannot be imposed since the conviction is under Section 138 of the N.I, Act, which does not provided Sentence of imprisonment in default of payment of fine. So taking into consideration the provisions under the Criminal Procedure Code, particularly Section 30, the learned Single Judge has requested the Registry to place the papers before the Honourable Chief Justice to post the matter before the larger bench to decide the case. It is absolutely correct that there is no revision pending before the High Court on the day when the complainant filed miscellaneous petition in Crl.M.P.No. 4295 of 2018 seeking to issue Non Bailable Warrant to secure the convict - Since the criminal prosecution has crossed the stage of trial, appeal and revision and reached the finality, the person who is found guilty have no right to file anticipatory bail petition for modification invoking 438 of Cr.P.C, the representation made across the bar and in the anticipatory bail petition that Crl.R.C is pending before this Court is factually not correct. The anticipatory bail petition is liable to be dismissed.

Summary

Issues:
1. Anticipatory bail petition filed due to misrepresentation by the complainant about the pendency of a criminal revision.
2. Legal interpretation regarding the imposition of default sentence for non-payment of fine in summary trial cases.
3. Finality of criminal prosecution stages and the right to file anticipatory bail.

Analysis:

1. The petitioner filed an anticipatory bail petition after the complainant sought a Non Bailable Warrant based on misleading information regarding the pendency of a criminal revision. The Court noted that the representation made by the petitioner was incorrect, as the criminal revision had been disposed of by a Division Bench on 06.02.2007, confirming the conviction and sentence except for the default sentence of the fine.

2. The legal issue centered around the imposition of a default sentence for non-payment of fine in summary trial cases under the Negotiable Instruments Act. The Division Bench, in its order dated 06.02.2007, emphasized that the Act itself prescribed the procedure for trial and punishment, making Section 30 of the Cr.P.C inapplicable. Referring to a Supreme Court judgment, the Bench clarified that imprisonment in default of fine was not permissible under Section 138 of the Act, leading to the setting aside of the three months' imprisonment in default of payment of a fine of ?5000.

3. The Court highlighted that since the criminal prosecution had concluded all stages and reached finality, the petitioner had no right to file an anticipatory bail petition for modification. The misrepresentation regarding the pendency of the criminal revision was deemed a crucial reason for dismissing the anticipatory bail petition.

4. Notably, the legal position established by the Division Bench in 2007 was revisited by the Apex Court in 2017, which held that default sentences could be imposed even for failure to pay compensation. However, the Court affirmed the finality of the Division Bench's finding in 2007, emphasizing that subsequent legal interpretations would not affect the earlier judgment.

5. The petitioner's counsel requested time to settle the claim, leading to the deferral of the execution of the Non Bailable Warrant until a specified date. The Court, while acknowledging the subsequent legal developments, upheld the Division Bench's decision from 2007 as conclusive in the present case.