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2004 DIGILAW 39 (AP)

State of Kerala v. Soma Thomas

2004-01-15

CYRIAC JOSEPH, K.PADMANABHAN NAIR

body2004
CYRIAC JOSEPH, J. ( 1 ) 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 undergoing imprisonment in Central Prison, Viyyur as he was convicted and sentenced for offences under Sec. 138 of the Negotiable Instruments act, 1881. She filed Ext. P-1 application dated 19-11-2002 before the State Government under Sec. 432 of the Code of Criminal procedure praying for remission of the sentence of her husband. Alleging that there was delay on the 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 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. Mohanadasan 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 sec. 432 of the Code of Criminal Procedure, 1973. According to sub-sec. ( 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 sec. 432 of the Code of Criminal Procedure, 1973. According to sub-sec. (1) of Sec. 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 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-sec. (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 Sec. 138 of the negotiable Instruments Act, 1881. Hence it has to be examined whether the law contained in Sec. 38 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. Hence it has to be examined whether the law contained in Sec. 38 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 exefcisable by the Government of India by virtue of any treaty or agreement: provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this constitution or in any law made by parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the state or officer or authority thereof could exercise immediately before the commencement of this Constitution". Hence the executive power of the Union extends to the matters with respect to which the Parliament has power to make laws. According to Art. 246 the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule which is referred to as the Union List. Entry 46 of the said Union list relates to Bill of Exchange, Cheques, 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 powers to make laws with respect to "cheques". ( 6 ) THE Negotiable Instruments Act, 1881 is admittedly a law made by the Parliament. Those matters are not included either in List II (State List) or in List III (Concurrent List ). Therefore the parliament has exclusive powers to make laws with respect to "cheques". ( 6 ) THE Negotiable Instruments Act, 1881 is admittedly a law made by the Parliament. The offence under Sec. 138 of the Negotiable instruments Act, 1881 relates to dishonour of cheque drawn by a persons on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part of any debt or other liability. Thus the law contained in Sec. 138 of the negotiable Instruments Act, 1881 relates to cheque which is a matter to which executive power of the Union extends. Hence in the case of a person who is convicted and sentenced for an offence under Sec. 138 of the negotiable Instruments Act, 1881, the appropriate Government for the purpose of sec. 132 of the Code is the Central government and not the State Government. ( 7 ) THEREFORE in the light of the provision contained in Sec. 432 (7) of the Code and arts. 73 and 246 of the Constitution of India, the appropriate Government competent to exercise the power under Sec. 132 of the code in the case of the respondent s husband is the Central Government and not the State government. Hence the impugned judgment is liable to be set aside. ( 8 ) FOR the reasons stated above the Writ appeal is allowed and the impugned judgment is set aside.