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2006 DIGILAW 186 (KAR)

Y. VISHNU v. S. VENKATESH

2006-02-21

A.C.KABIN

body2006
A. C. KABBIN, J, J. ( 1 ) THIS revision petition preferred by the complainant in C. C. No. 29290/99 involves a question of law i. e. , where fine has been imposed by the Trial Court for the offence punishable u/s. 138 of n. I. Act and compensation has also been awarded in favour of the complainant, whether recovered amount has to be first applied for crediting the fine to the Govt. , or for payment of compensation to the complainant. ( 2 ) THE accused in that case (respondent before this Court) was convicted by the Trial Court for the offence punishable u/s. 138 of N. I. Act and was sentenced to pay a fine of Rs. 1,00,000. 00 in default to undergo S. I. for one year. It was further directed that out of the said fine amount, an amount of Rs. 55,000. 00 be paid to the complainant as compensation. The conviction and sentence were confirmed in the appeal in Crl. A. No. 164/01 and later by the High Court in order dated 10. 6. 04 passed in Crl. R. P. No. 293/04. However, the accused was granted six weeks time from 10. 6. 04 to pay the fine, failing which to undergo the default sentence. ( 3 ) IN the Trial Court, an amount of Rs. 2,500. 00 had been deposited on 20. 3. 01 and later on an amount of Rs. 47,500. 00 was deposited on 29. 5. 04. When the complainant/revision petitioner sought for payment of the said amount, the Trial Court holding that since out of the fine amount, an amount of Rs. 45,060. 00 was required to be credited to the Government towards fine, directed that unless full amount of fine was recovered, the complainant was not entitled to any amount. It is that order which has been challenged in the present revision petition. ( 4 ) SRI A. Nagaraj, Learned Counsel for the revision petitioner submits that the compensation awarded gets precedence over the fine required to be credited to the Government out of the total fine amount imposed and that therefore the Learned Trial Judge was not right in rejecting the prayer of the complainant. He submits that when default sentence has been stipulated, the accused is liable to undergo the default sentence if he fails to pay the portion of fine required to be credited to Govt. He submits that when default sentence has been stipulated, the accused is liable to undergo the default sentence if he fails to pay the portion of fine required to be credited to Govt. , but that the amount which was liable to be paid to the complainant as compensation cannot be withheld. ( 5 ) NOTICE of this petition had been given to the respondent and though he is represented by Sri rasheed Khan and Sri K. Narayanappa, advocates, they are not present. Since the question of crediting the fine amount to Govt. is also in the matter, I have heard Sri Satish R. Girji, Learned hcgp as amicus curie. ( 6 ) SRI Satish R. Girji, Learned HCGP argues dig fine is imposed for the offence and compensation if it is out of the fine amount that is liable to be paid to the complainant or victim, if any amount out of the received amount remains after crediting the portion of the fine to Govt. I have considered both the pleas. ( 7 ) SECTION 421 of Cr. P. C. provides for recovery of fine by one of the two ways or by both of them. One way of recovery is to issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender. The second mode of recovery is to issue a warrant to the Deputy Commissioner of the District, authorizing him to realise the amount as arrears of land revenue. Where the offender undergoes the whole of the imprisonment in default of payment of fine, before recovery or before issuance of warrant for recovery, no such warrant can be issued, unless the Court assigns special reasons as to how despite the accused undergoing default sentence, there is necessity of recovering fine. However, there is an exception to this rule that is, if the recovery is for realising expenses of the complainant or the compensation awarded u/s. 357 of Cr. P. C. , the power of the Court to issue warrant for recovery of that amount, continues even after the accused undergoes the default sentence in full. ( 8 ) TAKING into consideration the necessity of recovery of compensation from the accused where he has been convicted for the offence punishable u/s. 138 of N. I. Act, Supreme Court in the case of Hari Singh Vs Sukhbir Singh. ( 8 ) TAKING into consideration the necessity of recovery of compensation from the accused where he has been convicted for the offence punishable u/s. 138 of N. I. Act, Supreme Court in the case of Hari Singh Vs Sukhbir Singh. AIR 1988 SC 2127 provided for imposition of default sentence on the failure of the accused to pay the compensation awarded u/s 357 of Cr. PC. That decision has been later affirmed by the Supreme Court in the case of Suganthi Sureshkumar Vs jagdeeshan ( 2002 (2) SCC 420 ) wherein it has been directed that what the Supreme Court held in Hari Singh's case, shall be followed by all Courts in India. From the discussion made above, the following position of law emerges. ( 9 ) WHEN compensation is awarded u/s. 357 of Cr. P. C. , either as part of the fine or independently, the recovery of the same gets precedence over the recovery of fine to be credited to the Government. Where compensation forms part of fine, the fine or portion of the fine has to be first applied for the payment of compensation u/s. 357 of Cr. P. C. , wherever there is an award of compensation and for the remaining amount of fine, if not paid or recovered, the accused has to be sent to prison to undergo the default sentence apart from the Court taking steps to recover the fine. ( 10 ) IT may be noted that under the proviso to Section 421 (1) of Cr. P. C. , the requirement on the court to recover the amount of compensation by attachment and sale of accused's property does not cease merely because the accused has undergone the whole of the imprisonment in default of payment of fine, by then. ( 11 ) IN the light of these principles, it is held that the order of the Trial Court in refusing to pay the deposited amount to the complainant was not correct. Therefore, setting aside the order dated 22. 9. 04 passed by the Learned 12th Addl. C. M. M. , Bangalore, in C. C. No. 29290/99, it is directed that the deposited amount of Rs. 50,000. 00 shall be paid to the complainant as part of the compensation of Rs. 55,000. 00 awarded by the Trial Court. Therefore, setting aside the order dated 22. 9. 04 passed by the Learned 12th Addl. C. M. M. , Bangalore, in C. C. No. 29290/99, it is directed that the deposited amount of Rs. 50,000. 00 shall be paid to the complainant as part of the compensation of Rs. 55,000. 00 awarded by the Trial Court. The Trial Court shall take coercive steps for recovery of the remaining amount of fine and if recovery, the balance of compensation be paid to the complainant. The Trail Court shall also take steps to get the accused arrested and to send him to prison to undergo imprisonment in default of payment of fine. --- *** --- .