\IPC SEC 70 application thereof
kamal krishan
(Querist) 08 July 2011
This query is : Resolved
US 138 of NIA against the dishonored cheque I was awarded compansation . The accused was also sentenced for three month imprisionment . The accussed is in imprision , but he the compasation so ordered is not recoverable from him . So pl send your opinion that sec 70 of IPC, for the unpaid amount , will work to procecute the accused for his defiance to the order of court ???????????????????????????????????????
WILL ACTION INTHIS SEC WOULD BE MORE EFFECTIVE AND EASY THAN TO SEC 421 OF CRPC & EXECUTION PETION //////?????????????????
dev kapoor
(Expert) 10 July 2011
Any money ordered by a criminal court(in a non-cognizable offence) is recoverable as 'fine' u/s.431 read with S.421/ 357( 3)Cr.P.C
dev kapoor
(Expert) 10 July 2011
Hi Kamal Krishan, See if this Judgment can be of any help to ypour proposition:
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Kerala High Court (2007 CriLJ 2992)
K.S. Saji Kumar vs K. Soman Pillai And Anr. on 13 July, 2006
Equivalent citations: III (2007) BC 588,
Author: R Basant
Bench: R Basant
ORDER
R. Basant, J.
1. If a default sentence imposed is undergone, does that extinguish the liability to pay compensation ordered to be paid under Section 357(3) Cr.P.C.? Are efforts to recover the amount liable to be continued under the proviso to Section 421, Cr.P.C. even after the accused undergone the default sentence? These are the interesting questions that arise in this Revision Petition which arises from a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act. The sentence imposed by the trial Court was modified by the appellate Court in that a default sentence was imposed if the compensation amount were not paid.
2. There is no challenge against verdict of guilty and conviction. In these circumstances it is unnecessary for me to advert in detail to the relevant facts. Suffice it to say that I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable.
3. The cheque is for an amount of Rs. 4,74,145.50. The trial Court imposed a sentence of simple imprisonment for a period of 6 months. There was a further direction to pay an amount of Rs. 4,75,140/- (only the actual cheque amount) as compensation. The trial Court did not impose any default sentence.
4. Before the appellate Court, it would appear that the petitioner bargained and invited a default sentence under Section 357(3) Cr.P.C. The petitioner/accused has already undergone the substantive sentence of simple imprisonment for a period of 6 months, it is submitted at the bar. The petitioner prayed that a default sentence may be imposed if there was non payment of the compensation. The learned Sessions Judge appears to have obliged the petitioner. The default sentence of simple imprisonment for a period of 2 months was imposed.
5. Evidently, the petitioner had sought such a default sentence under the impression that if he undergoes the default sentence, his properly will not be proceeded against for recovery of the compensation amount under Section 421. Cr.P.C. The learned Sessions Judge who accepted the request of the petitioner for a default sentence proceeded to observe that the fact that the default sentence was undergone will not in any way absolve the petitioner of his liability to be proceeded against for recovery of the amount under Section 421, Cr.P.C. The petitioner in these circumstances has come to this Court to challenge the sentence imposed on his including the observations made by the learned Sessions Judge.
6. I have already adverted to the principles governing imposition of a sentence in a prosecution under Section 138 of the N.I. Act in the decision reported in Anilkumar v. Shammi 2002 (3) KLT 852. In the facts and circumstances of this case, I do not find any compelling reasons which can persuade me to insist on imposition of any deterrent substantive sentence of imprisonment. But the petitioner has already undergone the substantive sentence of imprisonment for 6 months, it is submitted at the Bar by the learned Counsel for the petitioner. I am however satisfied that the sentence can be modified and a deterrent substantive sentence of imprisonment can be avoided. In doing so, I note that the petitioner will be entitled to claim set off of the period already undergone to the default sentence imposed by the learned Sessions Judge. Set off is not of period in custody prior to the conviction. It is set off of sentence undergone subsequent to the conviction. So the period undergone already can certainly be set off towards the default sentence to be undergone.
7. The problem does not end there. The learned Counsel for the petitioner contends that he is willing even to undergo the default sentence imposed now in addition to the substantive sentence which has already been undergone. He does not want any further proceedings for recovery of the compensation amount to be initiated against him. He contends that the observations of the learned Sessions Judge that proceedings for recovery of the compensation amount can continue even if default sentence were undergone, deserves and warrants interference.
8. This contention obliges the Court to go through the relevant statutory provisions in detail. It Is trite now that a default sentence can be imposed to enforce compliance with a direction to pay compensation under Section 357(3) Cr.P.C. If there be any doubts on that aspect, it is only sufficient to refer to the decisions of the Supreme Court In Harikishan and State of Haryana v. Sukhbir Singh Sugandhi v. Jagadeeshan 2002 (1) KLT 581 : 2002
Cri LJ 1003 (SC). It is unnecessary now to embark on the unnecessary exercise to locate the precise provisions in the Code which would enable the Courts to impose such default sentence. The law declared by the Supreme Court is binding on all subordinate Courts under Article 141 of the Constitution. It is hence settled law that a direction for payment of compensation under Section 357(3) Cr.P.C. can be enforced by a default sentence.
9. Section 431, Cr.P.C. reads as follows:
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.
(Emphasis supplied)
10. This Section makes it amply clear that a compensation directed to be paid under Section 357(3) Cr.P.C. can also be recovered "as if it were a fine". A fiction is created under Section 431, Cr.P.C. and the fiction is that though such amounts may not be a fine, it shall be recoverable as if it were a fine. For the purpose of recovery the legislature enacts and introduces a legal fiction. According to me, this fiction must be extended logically until its purpose is accomplished. A non fine is deemed to be a fine for the purpose of recovery. Until recovery is completed, the fiction must continue to live and exist. Having introduced and enacted such statutory fiction it will be improper, illogical and irrational to give up or discontinue the fiction at any stage before the purpose of the fiction is accomplished, namely, recovery of the amount. Until recovery is completed, 1 have no hesitation to hold, the deemed fiction must continue. Until then the amount is to be assumed and deemed to be a fine, though actually it is not.
11. We now come to Section 421(1), Cr.P.C. which reads as follows:
Section 421 : (1) When an offender has been sentence 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 moveable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
(Emphass supplied)
12. According to me, proviso to Section 421(1) is important. It incorporates certain rules relating to recovery of fine. If there is a sentence of fine and a default sentence, and if the person has already undergone the sentence of imprisonment in default, no Court should issue a warrant for recovery of the fine amount under Clauses (a) & (b) of Section 421, Cr.P.C. This is the normal rule. But this is not a rule which does not admit exceptions. Two exceptions are specified in the proviso. They are-
(1) if the Court for special reasons to be recorded in writing, considers such recovery necessary; and
(2) if the Court has issued an order for payment of expenses or compensation out of the fine amount under Section 357, Cr.P.C.
These are cases where the Court is invested with powers to deviate from the normal rule that when the indicatee has undergone the default sentence for non payment of fine, he cannot be proceeded against for recovery of fine. The exceptions seem to have very sound and rational basis. The purpose of imposing default sentence is to ensure compliance. A person cannot frustrate the attempt of the law to recover the fine amount by merely opting to undergo the sentence in default. If a Court is satisfied that any indicatee is resorting to such a deviant course to avoid payment of fine, certainly Courts are left with the discretion under the first part of the proviso. In an appropriate case, the property can be proceeded against for recovery of the fine amount notwithstanding the fact that the default sentence has been undergone. That discretion is retained with the Court.
13. The later/the second is a case where it is not a case of recovery of the fine amount (or deemed fine amount) to fill the coffers of the State alone. If out of the fine amount, compensation has been directed to be paid, such direction is with the primary object of compensating the victim. Principles of victimology7 come into play. The legislature zealously wants to ensure that the victim is not deprived of the compensation awarded if recovery is possible under Clauses (a) & (b) of Section 421. Therefore in a case where there is a direction to apply the fine amount as compensation to the victim, proceedings for recovery under the Clauses (a) & (b) of Section 421(1) Cr.P.C. shall (must) continue notwithstanding the fact that the accused has undergone the default sentence.
14. The learned Counsel for the petitioner contends that this may be so in so far as fine stricto sensu is concerned and direction for payment of compensation is issued under Section 357(1), Cr.P.C. It cannot be so in so far as deemed fines under Section 431 are concerned, he urges. I find no principle, precedent or statutory provision which can enable the Court to accept such a construction. The deeming fiction under Section 431, Cr.P.C. must necessarily continue until the recovery is effected. A fine as well as deemed fine are both taken into account by the proviso to Section 421(1), Cr.P.C. I am unable to accept the contention that the proviso to Section 421(1) Cr.P.C. can apply only to fines imposed and compensation directed to be paid under Section 357(1) Cr.P.C. and cannot apply to a direction to pay compensation under Section 357(3) Cr.P.C. which becomes a deemed fine under Section 421, Cr.P.C. It is significant that the proviso refers only to Section 357 and does not limit its application to Section 357(1) alone. The legislative scheme is made clearer when we consider that a direction for payment of costs under Section 359 Cr.P.C. which is a deemed fine under Section 431, Cr.P.C. is, by the proviso to Section 431, brought within the sweep of amounts covered by the latter/second part of the proviso to Section 421, Cr.P.C. Such a clarification was unnecessary so far as compensation under Section 357(3) Cr.P.C. was concerned as the proviso to Section 421, Cr.P.C. did already cover all payments directed under Section 357. Cr.P.C. and not the one under Section 357(1) Cr.P.C. alone.
15. The learned Counsel for the petitioner submits that theoretically this would oblige an accused to undergo a default sentence even after the entire amount is recovered under Section 421, Cr.P.C. I find no merit in this contention. If the entire amount is recovered, even before enforcement of the default sentence, it cannot be said that there is any default and consequently the default sentence will not and cannot be enforced. That hypothetical possibility need not also stand in the way of this Court, accepting the interpretation that the proviso to Section 421(1), Cr.P.C. must apply with equal vigour to fines stricto sensu as also deemed fines under Section 431, Cr.P.C. The default sentence is imposed for not making payment of fine within the stipulated period. The law appears to reasonably assume that a person having resources is unlikely to avoid payment risking imprisonment. Hence normally when such imprisonment is undergone the law does not insist on further steps for recovery to continue. But when the sentence of fine (or deemed fine) has in addition to the content of mere punishment, the content of reparation of the victim, the law wants the effort to recover the amount to continue if possible notwithstanding the fact that the person has undergone the default sentence. That is the clear legislative intent decipherable from the scheme and language of the statutory provisions. The fact that the default sentence was undergone is no immunity against subsequent attempts for recovery of the fine amount or deemed fine amount, if such amount is to be applied for compensating the victim.
16. It follows from the above discussions that there is no merit in the contention that a direction for payment of compensation under Section 357(3) Cr.P.C. coupled with a default sentence which is sought to be recovered as a deemed fine under Section 431, Cr.P.C. cannot be recovered if the default sentence has already been undergone. That contention is tuned down.
17. The learned Counsel for the petitioner submits that the decision is Bargavan Pillai v. Deputy Tehsildar 2000 (1) KLT S.N. 16 lays down a contrary proposition. I am unable to agree. The said decision does not appear to have considered the proviso to Section 421(1) at all or the two exceptions to the general rule that once default sentence is undergone, proceedings for recovery cannot continue.
18. The decision of the Mysore High Court in Mayanna v. State of Mysore 1967 Cri LJ 386 cannot also be of any help to the petitioner in as much as it does not at all consider the exceptions to the general rule. So far as the first exception is concerned, the decision only states that special reasons must be given by the Magistrate under Section 421(1) Cr.P.C. That does not also militate against the reasons which I have chosen to accept. Only when steps for recovery are made as per the first part of the proviso to Section 421(1) need the Court give reasons as insisted by the Code and the two decisions referred above. If the case falls within the 2nd/latter part of the said proviso, no obligation to give special reasons in writing by the Court arises at all.
19. I do not also find any merit in the contention that the 2nd part of the proviso would not apply when the entire fine (or deemed fine) is directed to be paid as compensation and would apply only when fine is imposed and only a portion of such fine is directed Lo be paid as compensation. Semantics apart such a crucial significance, cannot be ascribed to the words "out of the line" used in the proviso. When the entire amount of fine under Section 357(1) (or deemed fine under Section 357(3)) is directed to be paid to the victim also, the second part of the proviso must apply. It would be myopic and irrational to hold otherwise considering the language, scheme, purpose and purport of the statutory provision.
20. No other contentions are raised. In the nature of the relief which I propose to grant in this revision, it is not necessary for me to wait for issue and return of notice to the respondent.
21. In the result:
(a) This Crl RP is allowed in part;
(b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld:
(c) But the sentence is modified and reduced. The substantive sentence of imprisonment imposed on the petitioner by the Courts below is modified and the petitioner is sentenced to undergo imprisonment for one day. The direction for payment of compensation and the default sentence are upheld. Needless to say the period of sentence undergone subsequent to the judgment of the trial Court shall be set off against the default sentence.
22. I place on record my appreciation for the competent assistance rendered to the Court by the young counsel Shri D. Kishore.
