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Bankmann 2004(2) 106
KERALA HIGH COURT
Cyriac Joseph and K. Padmanabhan Nair, JJ.
State of Kerala and
others — Petitioners
versus
Mrs. Soma Thomas — Respondent
W.A. No. 1948 of 2003(E).
Decided 15-1-2004
Held: According to sub-section (7) of Section 432 of the Code, the expression ‘appropriate Government’ means (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government and (b) in other cases the Government of the State within which the offender is sentenced or the said order is passed. Thus if the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate Government and in other cases the State Government is the appropriate Government. Therefore the question is whether the respondent’s husband was sentenced for an offence against any law relating to a matter to which the executive power of the Union extends. Admittedly the respondent’s husband was convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act, 1881. Hence it has to be examined whether the law contained in Section 138 of the said Act relates to a matter to which the executive power of the Union extends. (Para 4)
Held further: The executive power of the Union extends to the matters with respect to which the Parliament has power to make laws. According to Article 246 the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule which is referred to as the Union List Entry 46 of the said Union list relates to Bill of Exchange, Cheque, Promissory Notes and other like instruments. There is no provision in the Constitution of India which indicates that the legislature of the State also has power to make laws relating to Bill of Exchange, Cheques, Promissory Notes and other like instruments. Those matters are not included either in List II (State List) or in List III (Concurrent List). Therefore the Parliament has exclusive power to make laws with respect to cheques.
(Para 5)
Held consequently: The Negotiable Instruments Act, 1881 is admittedly a law made by the Parliament. The offence under Section 138 of the Negotiable Instruments Act, 1881 relates to dishonour of cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that amount for the discharge in whole or in part of any debt or other liability. Thus the law contained in section 138 of the Negotiable Instruments Act, 1881 relates to cheque which is a matter to which executive power of the Union extends. Therefore in the light of the provision contained in Section 432(7) of the Code and Articles 73 and 246 of the Constitution of India, the appropriate Government competent to exercise the power under Section 432 of the Code in the case of the respondent husband is the Central Government and not the State Government. Hence the impugned judgment is liable to be set aside. (Paras 6 & 7)
Result: Appeal allowed.
Cyriac Joseph, J.—This appeal filed by the State of Kerala and others is against the Judgment dated 30th June, 2003 in W.P. (c) No. 17452/2003 which was filed by Mrs. Soma Thomas, the respondent herein. The appellants were the respondents in the said writ petition.
2. The respondent—Mrs. Soma Thomas is the wife of Sri P.T. Thomas who is under going imprisonment in Central Prison, Viyyur as he was convicted and sentenced for offences under Section 138 of the Negotiable Instruments Act, 1881. She filed Ext. P. 1 application dated 19.11.2002 before the State Government under Section 432 of the Code of Criminal Procedure praying for remission of the sentence of her husband. Alleging that there was delay on part of the Government in considering Ext. P. 1 application, she filed the writ petition praying for a direction to the first respondent State of Kerala to consider and dispose of Ext. P. 1 application without delay. The learned single Judge disposed of the writ petition at the admission stage directing the first respondent to consider the Ext. P.1 and to dispose of the same in accordance with law within a period of three months from the date of receipt of a copy of the Judgment. While issuing such a direction the learned single Judge proceeded on the assumption that the appropriate Government to consider the request for remission of sentence under Section 432 of the Code of Criminal Procedure in the case of the respondent’s husband is the State Government. However, according to the appellants, the appropriate Government is the Central Government and hence this writ appeal has been filed.
3. We heard Sri M. Retna Singh, learned Advocate-General for the appellants and Sri V.N. Mohanandasan for the respondent.
4. The question arising for consideration is whether the Government of Kerala has got power to grant remission to the respondent’s husband in exercise of the power under Section 432 of the Code of Criminal Procedure, 1973. According to sub-section (1) of Section 432 of the Code of Criminal Procedure, 1973, (hereinafter referred to as “the Code”) when any person has been sentenced to punishment for an offence , the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment
to which he has been sentenced.
According to sub-section (7) of Section 432 of the Code, the expression ‘appropriate Government’ means (a) in cases where the sentence is for an offence against, or the Order referred to in sub-section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government and (b) in other cases the Government of the State within which the offender is sentenced or the said Order is passed. Thus if the
sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate Government and in other cases the State Government is the appropriate Government. Therefore the question is whether the respondent’s husband was sentenced for an offence against any law relat-ing to a matter to which the execu-tive power of the U nion extends.
Admittedly the respondent’s husband was convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act, 1881. Hence it has to be examined whether the law contained in Section 138 of the said Act relates to a matter to which the executive power of the Union extends.
5. Article 73 of the Constitution of India reads thus:
“73.Extent of executive power of the Union—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extent—
(a)to the matters with respect to which Parliament has power to make laws , and
(b)to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.
Provided
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