Crl. M.C. No. 2083 of 2011. Case: Raveendran Vs State of Kerala. High Court of Kerala (India)
| Case Number | Crl. M.C. No. 2083 of 2011 |
| Counsel | For Appellant: Hanson P. Mathew & Smitha George, K. Ramakumar, Sr. Adv. and P.V. Kunhikrishnan, Advs. and For Respondents: Public Prosecutor K.K. Rajeev, Adv. |
| Judges | Mr. M. Sasidharan Nambiar and Mr. P. Bhavadasan, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 138, 357, 357(1), 357(3), 358, 359, 386, 386(1), 421, 421(1), 431, 482, 53, 64; Indian Penal Code (45 of 1860) (IPC) - Sections 279, 337, 338, 53, 64, 68, 69; Negotiable Instruments Act, 1881 - Section 138 |
| Citation | 2012 (4) KLJ 85, 2012 (4) KLT 178, 2013 (1) RCR 73 (Cri) |
| Judgement Date | August 08, 2012 |
| Court | High Court of Kerala (India) |
Order:
M. Sasidharan Nambiar, J.
1. When the sentence awarded includes payment of compensation under S. 357(3) of Code of Criminal Procedure, with a default sentence and the accused undergoes the default sentence, whether the compensation awarded could be recovered by issuing a distress warrant under S. 421 of Code of Criminal Procedure? Crl. M.C. No. 2083 of 2011 was filed by an accused who was convicted and sentenced to simple imprisonment for three months each for the offences under Ss. 279, 337 and 338 of Indian Penal Code. In Crl. R.P. No. 1445 of 2001 filed by the petitioner, while confirming the conviction, this court modified the sentence to imprisonment till rising of court in addition to compensation under S. 357(3) of Code of Criminal Procedure, to the injured at the rate of ` 10,000/- each to Pws. 1 and 2 and ` 8000/- to PW 3 and ` 5000/- each to Pws. 4 and 6 with a default sentence of imprisonment for one month each. Petitioner did undergo the substantive sentence but did not pay the compensation and had undergone the default sentence. When the learned Magistrate issued a distress warrant for realisation of the compensation, as provided under S. 421 of Code of Criminal Procedure, petitioner filed Annexure D petition before the learned Magistrate to recall the distress warrant contending that as he has already undergone the default sentence, no distress warrant could be issued. By Annexure E order, learned Magistrate dismissed the petition. It is challenging that order Crl. M.C.2083 of 2011 was filed under S. 482 of Code of Criminal Procedure, to quash Annexure E order and to allow his prayer in Annexure D petition filed before the learned Magistrate.
2. When the matter was heard by the Single Judge and the decision of a learned Single Judge of this court in Saji Kumar v. Soman Pillai (2006 (3) KLT 679) was pointed out and submitted that the view taken therein is to be reconsidered, in view of the ambit of the proviso to S. 421(1) of Code of Criminal Procedure, the Crl. M.C was referred to the Division Bench for an authoritative pronouncement on the question whether the proviso to S. 421 of Code of Criminal Procedure will take in sub-s.(1) of S. 357 of Code of Criminal Procedure alone or sub-s.(3) of S. 357 also.
3. Crl. R.P. No. 2397 of 2011 and Crl. R.P. No. 2398 of 2011 were filed by the same accused who was convicted and sentenced for the offence under S. 138 of Negotiable Instruments Act in C.C.200 of 2003, by Judicial First Class Magistrate, Adimaly. In that case the revision petitioner was sentenced to imprisonment for four months and was directed to pay a compensation of ` 2,75,000/-. In appeal, the sentence was modified, by the Sessions Court, to imprisonment till rising of court maintaining the compensation, with the default sentence of simple imprisonment for one month. Petitioner appeared before the Magistrate. As compensation awarded was not paid he had undergone the default sentence also. The complainant in that case filed C.M.P. No. 2018 of 2008 for attaching ` 15,000/- which was deposited by the revision petitioner earlier and also to take further steps to realise the balance of the compensation awarded. By order dated 19.7.2008, learned Magistrate allowed the application and issued distress warrant against the revision petitioner under S. 421 of Code of Criminal Procedure. The revision petitioner thereafter filed C.M.P. No. 667 of 2011, a petition to recall the distress warrant issued pursuant to the order dated 19.7.2008, contending that as he has already undergone the default sentence, the distress warrant cannot be issued. By order dated 29.3.2011, that petition was dismissed. Crl. R.P. No. 2397 of 2011 is filed challenging the said order. Crl. R.P. No. 2398 of 2011 is filed challenging the order dated 19.7.2008. When the revision petitions came before the learned Single Judge, as similar question was referred to the Division Bench in Crl. M.C. No. 2083 of 2011, the revision petitions were also referred to the Division Bench.
4. Though notices were served on the respondents/complainant and the injured in the respective cases, they did not appear.
5. Learned senior counsel appearing for the revision petitioner and the learned counsel appearing for the petitioner in the Crl. M.C were heard.
6. The argument of the learned senior counsel is that though there was a difference of opinion on the question whether a default sentence could be awarded for the payment of compensation awarded under S. 357(3) of Code of Criminal Procedure, the question has been finally settled by the Honourable Supreme Court in R. Mohan v. A. K. Vijaya Kumar (2012 (3) KLTSN 46 (C. No. 47) SC: 2012 (6) SCALE 113) and therefore there could be a sentence for payment of compensation with a default sentence and when the accused has already undergone the default sentence, the compensation cannot be recovered by recourse to S. 421 of Code of Criminal Procedure. The argument is that only if a fine is available to be recovered, S. 421 of Code of Criminal Procedure applies and when for non payment of the fine, an accused has already undergone default sentence, S. 421 of Code of Criminal Procedure as such has no application and therefore when an accused has undergone the default sentence, even if there is a direction to pay compensation, the compensation cannot be recovered thereafter. The learned senior counsel pointed out that though the revision petitioner was convicted for the offences under S. 138 of Negotiable Instruments Act, the sentence does not include fine and compensation was awarded only under S. 357(3) of Code of Criminal Procedure and in view of the decision of the Supreme Court, the default sentence is legal and the revision petitioner had undergone the sentence. The argument is that if the compensation is to be recovered under S. 421 of Code of Criminal Procedure, in spite of undergoing the default sentence, it would amount to a third sentence as he has already undergone the default sentence. The argument is that payment of compensation is the sentence and the default sentence is the alternative sentence and when for non payment of the compensation he has already undergone the default sentence and thus the sentence is undergone. If compensation is again to be realised under S. 421 of Code of Criminal Procedure, it would amount to a third sentence which is not contemplated under the Code of Criminal Procedure or the Negotiable Instruments Act and therefore, the order of the learned Magistrate issuing distress warrant is not sustainable. The learned senior counsel pointed out that though in Siby v. Vilasini (1998 (2) KLT 462), a learned Single Judge of this court held that there cannot be a default sentence for payment of compensation for an offence under S. 138 of Negotiable Instruments Act, another Single Judge in Aboobacker v. Ismail (2005 (1) KLT 663) held otherwise and by the decision in R. Mohan's case (supra), it is now settled that a compensation could be awarded with a default sentence and therefore, when the revision petitioner had undergone the default sentence, the compensation cannot be realised thereafter. Learned senior counsel argued that compensation is recovered by recourse to S. 421 of Code of Criminal Procedure in view of S. 431 of Code of Criminal Procedure and when the compensation directed to be paid is followed by a default sentence and the default sentence was undergone, the said, amount cannot be realised again under S. 421 of Code of Criminal Procedure as by undergoing the default sentence, the sentence is unexecutable. The learned senior counsel argued that the learned Magistrate did not properly appreciate the decision of learned Single Judge in Saji Kumar's case as in that case, though there was a direction to pay compensation, there was no default sentence and the said decision cannot be applied to a case where the accused has undergone the default sentence and compensation is again sought to be realised. Reliance was placed on the following decisions, Vijayan v. Sadanandan (2009 (2) KLT 618 (SC)), Surendran v. Preman (2011 (1) KLT 751), Alex Mathew v. George John (2008 (2) KLT 131), Abbas v. Sabu Joseph (2010 (2) KLT 943 (SC)), Ahammedkutty v. Abdullakoya (2008 (1) KLT 851 (SC)) and Shantilal v. State of M.P. (2008 (1) KLT 503 (SC): (2007) 11 SCC 243).
7. The learned counsel appearing for the petitioner in Crl.M.C. pointed out that though the petitioner was originally convicted and sentenced to undergo imprisonment for three months each, in the revision, the sentence was modified to imprisonment till rising of court and compensation and in such circumstances, the petitioner had to undergo imprisonment for three months if this court had not modified the sentence in the criminal revision petition and this court in the criminal revision petition, modified the sentence to imprisonment till rising of court and payment of compensation with a default sentence of simple imprisonment for one month each and for non payment of the compensation, revision petitioner had already undergone the original period of imprisonment which he would have undergone, if he had not preferred a revision petition and in such circumstances, when the revision petitioner had already undergone the sentence, learned Magistrate...
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