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2007 (4) Bankmann 376
KERALA HIGH COURT
R. Basant, J.
K.S. Saji Kumar —Petitioner
versus
K. Soman Pillai —Respondent
Criminal Revision Petition No. 2030 of 2006
Decided on 13-7-2006
Counsel for the Parties:
For the Petitioner:Mr. D. Kishore, Advocate.
For the Respondent: Mr. K. Ravikumar, PP.
IMPORTANT POINT
Fact that default sentence was undergone is no immunity against subsequent attempt for recovery of fine amount if such amount is to be applied for compensating of the victim.
Headnote:Criminal Procedure Code, 1973—Section 357(3), 421 and 431—Default sentence—If undergone does it extinguish liability to pay compensation ordered to be paid under Section 357(3) CrPC? No—Petitioner was convicted under Section 138 Negotiable Instruments Act and trial Court imposed sentence to six months imprisonment and direction to pay Rs. 4,75,410 (cheque amount) as compensation to complainant—Sessions Court in appeal accepting plea of petitioner-appellant awarded default sentence of 2 months but ordered further that default sentence undergone will not absolve petitioner of his liability to be proceeded against for recovery of amount under Section 421 CrPC—Revision—Fact that default sentence was undergone was no immunity against subsequent attempt for recovery of fine amount if such amount was to be applied for compensating the victim.
Held: 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 victimology 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) and (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) and (b) of Section 421(1), CrPC shall (must) continue notwithstanding the fact that the accused has undergone the default sentence. (Para 13)
The deeming fiction under Section 431, Cr.PC must necessarily continue until the recovery is affected. A fine as well as deemed fine are both taken into account by the proviso to Section 421(1), Cr.PC. I am unable to accept the contention that the proviso to Section 421 (1), Cr.PC can apply only to fines imposed and compensation directed to be paid under Section 357(1), CrPC and cannot apply to a direction to pay compensation under Section 357(3), Cr.PC which becomes a deemed fine under Section 421, Cr.PC. 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.PC which is a deemed fine under Section 431, Cr.PC 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.PC. Such a clarification was, unnecessary so far as compensation under Section 357(3), Cr.PC was concerned as the proviso to Section 421, Cr.PC did already cover all payments directed under Section 357, Cr.PC and not the ones under Section 357(1), Cr.PC alone. (Para 14)
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, if such amount is to be applied for compensating the victim. (Para 15)
Result: Revision disposed of accordingly.
R. Basant, J.— If a default sentence imposed is undergone, does that extinguish the liability to pay compensation ordered to be paid under Section 357(3), CrPC? Are efforts to recover the amount liable to be continued under the proviso to Section 421, CrPC even after the accused undergoes the default sentence? There 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 is 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 guilt and conviction are absolutely justified and unexcep-tionable.
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 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), CrPC. 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 property will not be proceeded against for recovery of the compensation amount under Section 421, CrPC. 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, CrPC. The petitioner in these circumstances has come to this Court to challenge the sentence imposed on him 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 NI Act in the decision reported in Anil Kumar v. Shammi.1 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 compensati
