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2012 DIGILAW 506 (KER)

Sivankutty v. John Thomas

2012-06-08

M.SASIDHARAN NAMBIAR, P.BHAVADASAN

body2012
ORDER : 1. Crl. M. Cs filed by two convicted accused, were referred by learned Single Judge doubting the correctness of the decision in Beena Vs. The Union of India (UOI) and The Central Bank of India, (2010) 2 KLT 1017 . In that case conviction for the offence under S. 138 of Negotiable Instruments Act was challenged in Crl.R.P. 1820/2009. The revision was disposed confirming the conviction but modifying the sentence to imprisonment till rising of court and payment of fine. The accused thereafter filed an application seeking a direction to the Magistrate to compound the case contending that the matter has been settled with the complainant after disposal of the revision. The learned Single Judge by the said decision reported in Beena's case (supra) found that after the disposal of the Revision Petition, composition cannot be allowed even under S. 482 of Code of Criminal Procedure. It was then considered whether the payment of compensation and realisation of fine could be recorded based on the payment. Learned Single Judge found that proper procedure for the accused was to deposit the fine in court and thereafter for the court to pay the amount to the complainant as the compensation is payable under S. 357(1)(b) of the Code, after making necessary entries in the fine register of the Court. But on the facts of that case the learned Single Judge noted that the accused had already paid the amount to the complainant to his satisfaction and in such circumstances, directed the Magistrate to accept the statement to be filed by the complainant through his lawyer acknowledging the receipt of the amount of fine and directed to make necessary entries in the fine register that the fine is realised and paid to the complainant. Crl. M. C. 2202/2011 was filed by the accused in S.T. 1211/2005 of Judicial First Class Magistrate, Nedumkandam who was convicted and sentenced to simple imprisonment for one year and compensation of Rs. 1,50,000/- to be paid to the first respondent complainant and in default simple imprisonment for three months. That conviction was confirmed by the Sessions Court in Crl.A. 97/2008. But sentence was modified to imprisonment till rising of the court and compensation of Rs. 1,50,000/- with a default sentence of simple imprisonment for three months under S. 357(3) of Code of Criminal Procedure. That conviction was confirmed by the Sessions Court in Crl.A. 97/2008. But sentence was modified to imprisonment till rising of the court and compensation of Rs. 1,50,000/- with a default sentence of simple imprisonment for three months under S. 357(3) of Code of Criminal Procedure. Though appellant filed Crl.R.P. 3015/2009, the revision was dismissed, granting six months time to the petitioner to pay compensation provided he executes a bond for Rs. 15,000/- before the Magistrate. Petitioner did not appear before the learned Magistrate to undergo the imprisonment till rising of the Court and sought extension of time which was granted twice. But petitioner failed to pay the compensation or appear before the learned Magistrate within that period. Crl. M. C. No. 2202/2011 was thereafter filed with a prayer "to direct the learned Judicial First Class Magistrate, Nedumkandam to permit the petitioner and first respondent to record their statement of settlement and make necessary entries in the fine register in connection with S.T. No. 1211/2005 and close the case forthwith". 2. Petitioner in Crl. M. C. 529/2012 was convicted for the offence under S. 138 of Negotiable Instruments Act by the Judicial First Class Magistrate-I, Punalur in C.C. 785/2003. He was convicted and sentenced to simple imprisonment for five months and compensation of Rs. 80,000/- to the complainant. Though petitioner challenged that conviction and sentence in criminal appeal, it was dismissed confirming the conviction and sentence. Petitioner challenged it before this court in Crl.R.P. 2413/2008. This Court disposed the revision on 18/7/2008, confirming the conviction but modifying the sentence to a fine of Rs. 80,000/- with a direction to pay the same on realisation, as compensation under S. 357(1) of Code of Criminal Procedure to the complainant. This Court specifically permitted the revision petitioner either to deposit the said fine before the trial court or to pay the compensation directly to the complainant within five months and produce a memo to that effect before the trial court in case of direct payment. The accused then filed Crl. M. C. 529/2012 for a direction to the learned Magistrate to "allow Annexure-C application and set aside the order dated 6/11/2011 passed in that application filed by the complainant reporting the receipt of amount due to him stating that he had received it from the petitioner by the Magistrate". 3. The accused then filed Crl. M. C. 529/2012 for a direction to the learned Magistrate to "allow Annexure-C application and set aside the order dated 6/11/2011 passed in that application filed by the complainant reporting the receipt of amount due to him stating that he had received it from the petitioner by the Magistrate". 3. When these petitions came up before the learned Single Judge, by separate orders reference was made to the Division Bench doubting the correctness of the decision in Beena's case (supra). According to the learned Single Judge R. 191 of Criminal Rules of Practice mandates maintaining a fine register in Form No. 20 and R. 192 mandates that every fine as soon as it is imposed shall be recorded in the said register and the entry shall at once be initialed by the Judge or Magistrate in the appropriate column. Holding that R. 193 mandates that payment towards fine shall be received by the clerk authorised for the purpose in the presence of the Judge or Magistrate and acquittance receipts in Administrative Form No. 42 signed by the Judge or Magistrate himself shall be granted who, when signing them shall initial the record of payment in the appropriate column of the fine register, it was found that if the procedure provided in Beena's case (supra) is to be followed in every case, it may lead to a further judicial enquiry regarding the payment and there is a possibility to make shadow entries in the fine register. According to the learned Single Judge this may lead to spending additional judicial time for conducting enquiry and some times further disputes may arise and every time such petition stating payment of fine/compensation direct to the complainant and to record payment is filed, the court has to initiate proceedings and notice may have to be issued to the complainant and enquiry may have to be conducted which would result in waste of judicial time. Hence according to the learned Single Judge, the decision in Beena's case (supra) is to be reconsidered or clarified. 4. We have heard the learned counsel appearing for the petitioners. We find that in Crl. Hence according to the learned Single Judge, the decision in Beena's case (supra) is to be reconsidered or clarified. 4. We have heard the learned counsel appearing for the petitioners. We find that in Crl. M. C. 2202/2011 the prayer is to direct the Magistrate to record the statement which even according to the petitioner was subsequent to the disposal of the revision and it is not permissible in view of final decision in revision as held by the Division Bench of this Court in Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168). More over, we find that the sentence awarded in S.T. 1211/2005 enables the petitioner accused to pay the compensation directly to the complainant and produce the receipt before the learned Magistrate. Hence it is not a case where sentence awarded is fine with a direction to pay either whole or part of the fine as compensation to the complainant. Instead the sentence is imprisonment till rising of court and payment of compensation directly to the complainant and in default simple imprisonment. As long as sentence does not include fine or a direction to deposit the compensation in court, if the complainant admits receipt of compensation or the accused establishes that compensation was paid directly to the complainant as provided in the judgment, we do not find any impediment in recording that fact. In such circumstances, we find no need to decide the correctness of the decision in Beena's case (supra) in Crl. M. C. 2202/2011. 5. In Crl. M. C. 529/2012 the order of this court itself provides for payment of the fine directly to the complainant. Operative portion of the order in Crl.R.P. 2413/2008 reads. Accordingly, for the conviction under S. 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 80,000/- (Rupees eighty thousand only). The said fine shall be paid as compensation under S. 357(1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within five months from today and produce a memo to that effect before the trial court in case of direct payment. Therefore, order of this court provides for payment of compensation directly to the complainant and produce a memo to that effect before the trial court. Therefore, order of this court provides for payment of compensation directly to the complainant and produce a memo to that effect before the trial court. The only defect is that he did not pay or deposit the amount within the time provided under the said judgment. But that does not mean that the sentence will be altered. The sentence will continue to be a sentence of fine, which could be paid either to the court or directly to the complainant and in default to undergo simple imprisonment for three months. When the revisional order itself permits the petitioner to pay the amount directly to the complainant, we do not find any reason to doubt the correctness of Beena's case in Crl. M. C. 529/2012. 6. Still as the question was referred to the Division Bench, we consider it necessary to answer the question, R. 191 of Criminal Rules of Practice provides for maintenance of register of fines. Under the Rule the account of fine imposed, levied and refunded shall be kept in Administrative Form No. 20. R. 192 provides that every fine as soon as it is imposed shall be recorded in the register and the entry shall at once be initialed by the Judge or Magistrate in the appropriate column. R. 193 provides for receiving the amount. Under the Rule, payment towards fine shall be received by the clerk authorised for the purpose, in the presence of the Judge or Magistrate. Acquittance receipts Administrative Form No. 42 signed by the Judge or Magistrate himself shall be granted and, when signing them he shall initial the record of payment in the appropriate column of the fine register. R. 194 provides for remittance of the fine received by the courts to the treasury. R. 195 provides for crediting the fine so remitted to the treasury. Under the Rule all fines recovered by courts shall immediately be credited to Government. Any payment out of the fine so realised required to be made by any order of court or under any law for the time being in force, shall be made in accordance with the rules or instruction issued in that behalf. R. 197 provides for writing off fines. Under sub-r. (1) case in which sanction to write off irrecoverable fines is required shall be entered in Administrative Form No. 33 to be printed on the back of Form No. 32. R. 197 provides for writing off fines. Under sub-r. (1) case in which sanction to write off irrecoverable fines is required shall be entered in Administrative Form No. 33 to be printed on the back of Form No. 32. Under sub-r. (2) when any fine remains uncollected for three months, details thereof shall be given below the statement of fines (Administrative Form No. 32) with an explanation why it remains uncollected and why it is not proposed to treat it as irrecoverable. R. 202 provides for details of deposit of compensation in treasury and payment of compensation amount. We are not concerned with R. 202 as it does not deal with the compensation provided under S. 357 of the Code. 7. Rule 203 provides that compensation under Sections 250, 357 or 358 of the Code and compensation and all other sums recoverable like fines which cannot be entered in columns 4 and 5 of the fine register (Administrative Form No. 20) shall be entered in column 7 thereof and the collection of such amount shall be entered in column 15. Under sub-r. (2) the amounts mentioned in sub-r. (1) shall be retained in deposit in the treasury, subject to the order of the court awarding compensation or of the court of appeal or revision. Sub-r. (3) provides that the amount retained in deposit under sub-r. (2) shall be paid to the party entitled to the compensation or other sum, on such party producing before the Treasury officer an order for payment issued under Rule 200. 8. Form No. 20 is the register of fine imposed, levied and refunded as provided under R. 191. First column is for recording the date of imposition of the fine. The second column is for the number of the case. Third column is for the name of the accused. Column Nos. 4 to 8 are in respect of the demands. That is balance uncollected in case of previous months or fine imposed in case of current month. Column No. 4 is to enter the details of the amount, fines to be credited to the Government and column No. 5 the amount and column No. 6 the name of the Body or Association concerned and the provisions of law under which the fine is imposed. Column No. 4 is to enter the details of the amount, fines to be credited to the Government and column No. 5 the amount and column No. 6 the name of the Body or Association concerned and the provisions of law under which the fine is imposed. Column No. 7 is for compensation awarded under Sections 250, 357 or 358 of Code of Criminal Procedure and compensation and all other sums recoverable like fines which cannot be entered in columns 4 or 5. Column No. 8 is for the initials of Judge or Magistrate. Column No. 9 and 10 are for entering the details of collections. Column No. 9 is for entering the details of the amount collected. Column No. 10 is for entering the date of collection and column No. 11 for entering the initials of Judge or the Magistrate concerned. Column No. 12 to 17 are for entering the details of the amount credited to the Sub Treasury. As provided under R. 195, all fines recovered by the courts shall immediately be credited to Government. Column No. 12 is to enter the details of the amount credited to the Government. Column No. 13 deals with the amount credited. Column No. 14 is for entering name of the body or association concerned and the provision of law under which the fine is imposed. Column No. 15 is to enter the details of compensation and other amount, described in column No. 7 referred to earlier. Column No. 16 is to enter, the date of credit in Sub Treasury and column No. 17 for the initial of Judge or the Magistrate. Column Nos. 18 to 21 deal with entries for irrecoverable amounts and remissions with which we are not concerned. Column Nos. 21 and 22 are also for entering the details of refund which also we are not concerned. Column No. 23 is for entering the remarks in each case. The compensation is payable either under S. 357(1) or 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, it could only be under S. 357(1) of Code of Criminal Procedure. If compensation is awarded separately and does not form part or whole of the fine, it could only be under S. 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, it could only be under S. 357(1) of Code of Criminal Procedure. If compensation is awarded separately and does not form part or whole of the fine, it could only be under S. 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, either whole or part, as the sentence is fine procedure for its payment provided under R. 192 of Criminal Rules of Practice and the fine is to be paid in court and when payment is made it shall be entered in the Register and the fine shall be credited to the Sub Treasury as provided under R. 195. If any part of the fine is to be paid, either in whole or in part as compensation it shall be as provided under R. 203 and shall be entered in the register of fine imposed and refunded in Form No. 20 as provided earlier. On the other hand, if compensation is payable under S. 357(3) of Code of Criminal Procedure and court directs either to deposit in court or permits the appellant to pay it directly to the complainant, question of depositing the compensation amount in court under R. 203 will not arise. In such a case, if a memo is filed to record the payment of compensation, it could only be entered in the register of fine imposed, levied or refunded with reference to the memo submitted, with the necessary details in the remarks column with the initial of the Judge or the Magistrate concerned. Similarly, if compensation is payable under S. 357(1) of Code of Criminal Procedure and there is a direction to pay whole of the fine realised, as compensation to the complainant or to the party, as and when fine is deposited in court and entries are made in the register and fine is credited to Sub Treasury, it is to be paid to the complainant as compensation as and when he applies for the same. But if the Court permits payment of fine as compensation to the complainant directly, it enables the accused to pay the entire fine as compensation directly to the complainant, as is the case with the sentence in C.C. 785/2003, the Magistrate cannot insist that fine is to be paid in Court and it cannot be paid directly to the complainant and is to be paid to the complainant only after making necessary entries in Form No. 20. In such a case when the statement is filed by the complainant regarding satisfaction of the compensation, the Magistrate has to make necessary entry in Form No. 20, based on that statement, as in the case of compensation payable under S. 357(3) of Code of Criminal Procedure. When the compensation directed to be paid to the complainant is not the whole fine but only part of fine, necessarily the entire fine is to be deposited before the Court. Even in such a case, if court, which sentenced him specifically permits to pay that part of the fine which is to be paid as compensation, directly to the complainant, Magistrate is competent to receive the balance of fine deducting the compensation so payable and make necessary entries in Form No. 20. In that case based on the statement filed by the complainant acknowledging receipt of the compensation, necessary entries of the payment of compensation and receipt are to be recorded as in the case of deposit of fine and payment of compensation under S. 357(1)(b) of Code of Criminal Procedure. We also find that there is no general direction in Beena's case (supra) and the direction to the Magistrate was on the peculiar facts and circumstance of that case. Having satisfied that compensation was paid to the complainant, the learned Single Judge directed the Magistrate to make necessary entries in the fine register. We do not find any error or defect in the directions given in the decision. The references are answered accordingly. Send back the files to the learned Single Judge to pass appropriate orders in the petition.