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TMI Blog2018 (1) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-2 order rendered on 26.10.2007, had confirmed the said conviction and modified the substantive sentence of imprisonment for 3 months by reducing the same till the raising of the court and had directed the petitioner to pay compensation of ₹ 5,50,000/- directly to the complainant and in default thereof, to suffer simple imprisonment for 3 months. It is clear from Ext.P-3 order dated 13.2.2009 passed by the trial court concerned that as a matter of fact, the petitioner had undergone simple imprisonment for the period from 6.9.2003 till 6.2.2004 (5 months) in execution of the impugned sentence. It was only later that this Court had rendered Ext.P-2 revisional order dated 26.10.2007 directing reduction of the substantive sentence to imprisonment till rising of the court, wherein also, the default sentence for simple imprisonment was for 3 months. It is the case of the petitioner that due to his financial difficulties, he was not in a position to pay the compensation amount of ₹ 5,50,000/- to the complainant. In view of the directions issued by this Court in Ext.P-2 revisional order dated 26.10.2007, the petitioner was to suffer substantive sentence of imprisonment till th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te directions are necessary, except to direct the trial court to ensure that the non-bailable warrant is not issued against the petitioner in respect of the present case, as he has already suffered the requisite sentence. 6. The subsisting grievance of the petitioner is that neither the original complainant during his life time, nor his legal representatives have at any point of time, had filed any application before the trial court for issuance of distress warrant so as to proceed against the properties of the petitioner to recover the compensation amount of ₹ 5,50,000/- and that since what has been imposed by this Court as per Ext.P-2 is compensation of ₹ 5,50,000/- as per Sec. 357(3) of the Cr.P.C. and not a fine amount, the trial court is not having power to take steps for issuance of distress warrant so as to recover the said compensation amount from the assets of the petitioner, more particularly because the deceased complainant or his legal representatives have not till date filed any application before the trial court for recovery of the said amount. From a reading of Ext.P-7 proceedings sheet of the trial court it can be seen that distress warrant has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. Sec.68: Sec.68. Imprisonment to terminate on payment of fine .- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law. Sec.70: Sec.70. Fine leviable within six years, or during imprisonment Death not to discharge property from liability .- The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and 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 the death of the offender does not discharge from the liability any property which would, after his death, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 construed as if in the proviso to sub-section (1) of Section 421, after the words and figures under Section 357 , the words and figures or an order for payment of costs under Section 359 had been inserted.' Sec. 386(1) of the (Old) Cr.P.C., 1898 provides as follows: Sec.386.Warrant for levy of fine: ( 1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- ( a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; ( b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing 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 Commission is category by itself which applies to compensation payable out of a fine under Sec. 357(1) and by applying the fiction contained in Sec.431, to compensation payable under Sec. 357(3). 11. It will be profitable to refer paras 23 to 30 of the aforecited decision of the Apex Court in Kumaran's case supra, reported in AIR 2017 SC 2433, p.p.2440-2443, which read as follows: '23. A conspectus of the aforesaid judgments would show that compensation under the old CrPC was always recoverable as a part of fine, and that even after default imprisonment having been undergone, a fine could still be collected in the manner provided by Section 386. The requirement of special reasons was introduced by the amending Act of 1923. The special reasons outlined in the Bombay High Court judgment of 1934 as well as in the Mysore High Court jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: (AIR 2009 SC (supp) 1435), this Court held: (SCC p. 659, paras 29-31) 29. To appreciate the said legal position, the provisions of Section 431 are set out hereinbelow: 431. Money ordered to be paid recoverable as 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 construed as if in the proviso to sub-section (1) of Section 421, after the words and figures under Section 357 , the words and figures or an order for payment of costs under Section 359 had been inserted. Section 431 makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357(3). 28. As is well known, a legal fiction is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. For example, see Prakash H. Jain v. Marie Fernandes [2003) 8 SCC 431 at 438: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions contained in Sec.70 of the I.P.C. The Travancore Cochin High Court in the decision State v. Krishna Pillai , reported in AIR 1953 T.C. 233, has held as follows: The jurisdiction of the trial court to impose a sentence of imprisonment in default of payment of fine is merely permissive. It is not imperative to award a term of imprisonment in default of payment of a fine. Section 64, Penal Code (S. 53, Travancore Code) only states that it shall be competent to the court to impose a sentence of imprisonment for non-payment of fine. Further, imprisonment in default of payment of fine does not liberate an accused person from his liability to pay the fine imposed on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 collect and what is meant is that within six years, the State must commence proceedings for realisation, not necessarily complete it and that it is beyond the State's power to complete the realisation proceedings, but it is within its power to initiate such proceedings and what is contemplated in Sec.70 of the I.P.C. is that the State shall commence the recovery proceedings and once such steps are taken, the plea of limitation is out of bounds for the sentence and Sec.70 of the I.P.C. 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, etc. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the petitioner even after he has suffered the full sentence is clearly without jurisdiction and the same is illegal and ultra vires. As the said non-bailable warrant issued previously, has already been recalled by the trial court, there is no necessity to issue order for recalling and rescinding such proceedings. However, it is ordered that the trial court should ensure that nonbailable warrant is not issued in future against the petitioner for execution of the impugned sentence in this case as he has already suffered the full sentence as stated herein above. ( ii) The trial court is having jurisdiction and the competence to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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