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2018 (1) TMI 772 - HC - Indian LawsRecovery of Compensation fines - Sec.357(1)(b) of the Cr.P.C. - Issuance of non-bailable warrant - grievance of the petitioner is that the trial court had subsequently taken up steps for execution of the impugned sentence and had issued, not only distress warrant for recovery of the compensation amount but had also issued nonbailable warrant against the petitioner, even though the petitioner had suffered more than the required substantive sentence and default sentence, in terms of Ext.P-2 revisional order passed by this Court. Held that - In case like the one involved in 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). The matter in issue involved in this case is fully covered against the petitioner by virtue of the dictum laid down by the Apex Court in the decision in Kumaran v. State of Kerala, 2017 (5) TMI 372 - SUPREME COURT OF INDIA , where it has been held by their Lordships of the Supreme Court that in case the accused is convicted for offence under Sec.138 of the Negotiable Instruments Act and sentence of imprisonment with compensation is imposed and there is a default sentence clause for non-payment of compensation and even if the accused has undergone the default sentence, the compensation could still be recoverable in the manner provided in Sec.421(1) of the Cr.P.C., 1973 and that this would be without necessity for recording of any special reasons, as provided in Sec.386(1) of the old Code. Sec.421 deals with warrant for levy of fine. Time limitation - Held that - In the instant case Ext.P-2 revisional order was passed on 26.10.2007. A perusal of Ext.P-7 proceedings sheet would disclose that distress warrant was issued by the trial court as early as on 13.2.2009. Therefore, the issuance of the distress warrant by the trial court for recovery of the due compensation amount payable by the accused, is legally correct and proper and the trial court has necessary jurisdiction in that regard going by the abovesaid legal position and the action for issuance of distress warrant has been taken within the permissible time limit envisaged in Sec.70 of the I.P.C. Petition disposed off.
Issues Involved:
1. Legality of the non-bailable warrant (NBW) issued against the petitioner. 2. Competence of the trial court to issue a distress warrant for recovery of compensation. 3. Applicability of Sections 421 and 431 of the Code of Criminal Procedure (Cr.P.C.) and Sections 63 to 70 of the Indian Penal Code (IPC) for recovery of compensation. 4. Recovery of compensation in the absence of an application by the complainant or their legal representatives. Issue-wise Detailed Analysis: 1. Legality of the Non-Bailable Warrant (NBW) Issued Against the Petitioner: The petitioner was convicted under Sec.138 of the Negotiable Instruments Act and sentenced to imprisonment and a fine. Despite serving the default sentence, the trial court issued an NBW against the petitioner. The court found this action "clearly illegal and ultra vires" since the petitioner had already served the required sentence. The trial court later recalled the NBW, but it was erroneously reissued. The court directed that no further NBW should be issued against the petitioner for this case. 2. Competence of the Trial Court to Issue a Distress Warrant for Recovery of Compensation: The petitioner argued that neither the complainant nor their legal representatives applied for recovery of the compensation amount. The court clarified that under Sec.357(3) Cr.P.C., compensation can be recovered as if it were a fine, per Sec.431 Cr.P.C. and Sec.421 Cr.P.C. The trial court has the jurisdiction to issue a distress warrant for recovery of compensation, even in the absence of an application by the complainant or their legal representatives. 3. Applicability of Sections 421 and 431 of the Code of Criminal Procedure (Cr.P.C.) and Sections 63 to 70 of the Indian Penal Code (IPC) for Recovery of Compensation: The court referred to Sec.25 of the General Clauses Act, which mandates that provisions of Secs.63 to 70 IPC apply to the recovery of fines unless otherwise specified. The court cited the Supreme Court's decision in Kumaran v. State of Kerala, which held that compensation under Sec.357(3) Cr.P.C. is recoverable as a fine, even if the default sentence has been served. The court emphasized that this recovery does not require special reasons, as the legal fiction in Sec.431 Cr.P.C. extends to Sec.421 Cr.P.C. and Sec.70 IPC. 4. Recovery of Compensation in the Absence of an Application by the Complainant or Their Legal Representatives: The court noted that the legal representatives of the deceased complainant had not applied for recovery of the compensation. However, the court held that the trial court could proceed with the distress warrant for recovery of compensation. The District Collector and the Tahsildar were directed to identify the legal representatives of the deceased complainant and report to the trial court. The trial court was instructed to notify the legal representatives about the recovery proceedings and ensure that any recovered compensation is disbursed to them. Final Directions: 1. The trial court's issuance of the NBW was declared illegal, and no further NBW should be issued. 2. The trial court is competent to proceed with the distress warrant for recovery of compensation. 3. Authorities should expedite the recovery process. 4. The District Collector/Tahsildar should identify and report the legal representatives of the deceased complainant. 5. The trial court should notify the legal representatives and disburse any recovered compensation to them. 6. The recovery proceedings should be completed expeditiously. The Original Petition (Criminal) was finally disposed of with these observations and directions.
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