Can a criminal court issue a warrant under Section 421 Cr.P.C. for recovery of the fine/compensation imposed without and before executing the default sentence imposed on an accused? This is the question that is raised before me.

2. The petitioner is the complainant in a prosecution under Section 138 of the N.I. Act. The accused was found guilty, convicted and sentenced by the trial court. The petitioners appeal was dismissed by the learned Sessions Judge. In revision another Bench of this Court upheld the verdict of guilty and conviction, but the sentence imposed was modified. He was sentenced to pay a fine of Rs.1,00,000/- within a period of five months from 210.2007 and in default to undergo S.I. for a period of three months. It was further directed that the entire fine amount shall be paid as compensation under Section 57(1) Cr.P.C.

3. The accused has not been apprehended so far. He has not paid the fine amount also till now. Non-bailable warrants issued against the accused have not been executed by now. The petitioner/complainant in these circumstances approached the learned Magistrate with an application under section 421 Cr.P.C. to issue warrant to attach an item of property belonging to the accused and to attempt recovery of the fine amount by attachment and sale of that property. That application was dismissed by the learned Magistrate by the impugned order, which reads as follows:

"Heard. The compensation u/s. 357(3) Cr.P.C. has been modified as fine and in default to imprisonment and compensations ordered u/s. 357(1) Cr.P.C. NBW already issued against the accused. A warrant u/w. 421 Cr.P.C. cannot be issued. Petition is rejected."

4. The respondent/accused is not available. Warrants of arrest issued against him have not succeeded in procuring his presence. It is therefore unnecessary to wait for issue and return of notice to him. The learned counsel for the petitioner contends that there is nothing in law which obliges a Magistrate, who has the duty to execute a sentence of fine and a default sentence, to wait until the default sentence is executed before taking steps under Section 421 Cr.P.C. to recover the fine amount. The petitioner apprehends that the accused may dispose of the property which stands in his name before he is apprehended in which event the petitioner will be left with no effective method to get compensation which is directed to be paid out of the fine amount under Section 357(1) Cr.P.C.

5. The crucial question to be decided is hence whether in the case of sentence of fine coupled with default sentence, it is permissible for the Magistrate to take steps under Section 421 Cr.P.C. to recover the amount even when the default sentence is not executed.

6. A look at the fundamentals appears to be necessary. It has been repeated time and again that default sentence imposed for non- payment of fine/compensation is not a punishment imposed on the accused under Section 53 I.P.C. Default sentence imposed is only a mode of enforcement of the sentence of fine. The Supreme Court in Shantilal v. State of M.P. (2008 (1) KLT 503 (SC) Kuldip Kaur v. Surinder Singh (1989) 1 SCC 405) and this Court following those precedents in the decision Ganga v. Lakshmi Ammal (2008(2) KLT 306) has clearly held that a default sentence is not a punishment in the strict sense and is only a method of enforcement of a sentence of fine imposed on an accused.

7. It will next be appropriate to consider whether a default sentence would wipe out the liability to pay the fine amount. That aspect of the matter was considered in detail in the decision in Sajikumar v. Soman Pillai (2006 (3) KLT 679). That was of course a case, where it was a default sentence imposed for non- payment of compensation and not fine. It will be apposite in this context to refer to Section 421(1) Cr.P.C., including its proviso, which I extract below:

S.421: Warrant for levy of fine - (1) When an offender has been sentenced to pay a fine, the Court passing th