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Bombay High Court · body

2015 DIGILAW 1819 (BOM)

Mohammed Rafic v. Mario H. Fernandes

2015-08-07

C.V.BHADANG

body2015
JUDGMENT : Rule. Rule made returnable forthwith. The learned Counsel for both the respondents waive service for the respondents. Heard finally with consent. 2. By this petition, the petitioner/accused, is challenging the order issuing warrant of attachment of his flat. 3. The brief facts are that the petitioner was prosecuted for an offence punishable under Section 138 of the N. I. Act, on the basis of a complaint lodged by the first respondent. The petitioner came to be convicted by a judgment dated 30/03/2012 and he was sentenced to pay compensation of Rs.4,25,000/-and in default to undergo Simple Imprisonment for a period of one month. This was unsuccessfully challenged by the petitioner in Criminal Appeal No.56/2012 before the learned Sessions Judge. The appeal was dismissed on 26/07/2013. It appears that the petitioner did not pay the amount of compensation as awarded and instead, served the sentence awarded in default. Subsequently, a Criminal Miscellaneous Application came to be filed, seeking issuance of warrant of attachment of a flat of the petitioner, which is more particularly described in the application. The learned Magistrate, by an order dated 20/04/2015, has passed the following operative order : “Hence, the accused is directed to pay the compensation within 15 days from the date of this order, failing which warrant of attachment shall be issued in respect of the flat of the accused, details of which are given in the application.” 4. Feeling aggrieved, the petitioner is before this Court. 5. It is submitted by Shri Rao, the learned Counsel for the petitioner that the first respondent/complainant was aware that the petitioner was holding the flat. The learned Counsel has referred to a communication /reply dated 12/09/2012 received under the Right to Information Act, by which the first respondent was informed that the petitioner is the owner of flat no.8, bearing house No.16/14/13, situated on the third floor of the building, known as Datta Apartment, Bhatlem, Panaji, Goa. This information was supplied by the Corporation of City of Panaji. It is submitted that the first respondent intentionally waited till the petitioner served the sentence in default and thereafter, moved an application for attachment, which is malafide. This information was supplied by the Corporation of City of Panaji. It is submitted that the first respondent intentionally waited till the petitioner served the sentence in default and thereafter, moved an application for attachment, which is malafide. It is submitted that under proviso to Section 421 of Cr.P.C., once the accused has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing, it considers it necessary to do so. It is submitted that such special reasons must indicate the circumstances, which prevented the State/ complainant as to why such application for issuance of warrant was not made earlier. In other words, it is submitted that the complainant in such case, should act with expedition and not wait until the accused suffers the imprisonment in default and then seek attachment for recovery of the amount of fine/ compensation. It is submitted that under Section 431 of the Cr.P.C., compensation is made recoverable as a fine and thus, the provisions of section 421 would apply in the case. The learned Counsel has placed reliance on Digambar Bhavarthi Vs. Emperor, reported in AIR 1935 Bombay 160, Siddappa Vs. State of Mysore, reported in AIR 1957 Mysore 52 and Hari Singh Vs. State, reported in AIR 1963 Rajasthan 80. It is next submitted that the flat in question is the only residential accommodation available to the family of the petitioner. The petitioner is no longer doing business and has taken a job as a Salesman. It is submitted that the financial condition of the petitioner is not sound and the impugned order would bring the petitioner on streets and would cause grave prejudice and the impugned order, therefore, may be set aside. 6. On the contrary, it is submitted by the learned Counsel for the respondent no.1 that the requirement to record special reasons would not apply where warrant is issued for attachment/ sale/ for recovery of compensation. It is submitted that apart from the absence of any requirement to record reasons, the Magistrate has considered the reply filed by the petitioner and has recorded the reasons. He, therefore, submitted that the impugned order does not need any interference. 7. I have considered the rival circumstances and the submissions made. It is submitted that apart from the absence of any requirement to record reasons, the Magistrate has considered the reply filed by the petitioner and has recorded the reasons. He, therefore, submitted that the impugned order does not need any interference. 7. I have considered the rival circumstances and the submissions made. It is not in dispute that the petitioner has been convicted for the offence under Section 138 of the Act and has been sentenced to pay compensation of Rs.4.25 Lakhs and in default to undergo Simple Imprisonment for a period of one month. That order has been confirmed by the learned Sessions Judge and has thus attained finality. It is also undisputed that the petitioner has not paid the compensation and has served the imprisonment in default. The question is whether the impugned order directing attachment of the flat for recovery of the compensation is legal and proper. 8. It was not disputed during the course of the arguments at bar that merely because the accused undergoes the imprisonment in default of the payment of fine/ compensation, the liability to pay said fine or compensation is not wiped off. The main thrust of the challenge is based on the absence of any special reasons being recorded by the learned Magistrate, once it is found that such attachment is sought, after the petitioner/ accused has served the sentence in default. 9. Section 431 of Cr.P.C. Provides that any money (other than fine) payable by virtue of order made by this Court under the Code and the method of recovery of which, is not otherwise expressly provided for, shall be recoverable as if it were a fine. Thus, the compensation awarded, would be recoverable as a fine as provided under Section 421 of the Code. Section 421(1), which is relevant for the purpose, reads thus : “421. Warrant for levy of fine. Thus, the compensation awarded, would be recoverable as a fine as provided under Section 421 of the Code. Section 421(1), which is relevant for the purpose, reads thus : “421. Warrant for levy of fine. -(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the moveable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. 10. We are presently concerned with the proviso appended to Section 421(1) of the Code. A plain reading of the proviso would show that such a requirement of recording special reasons would not apply, when there is an order for payment of expenses or compensation out of fine under Section 357 of Cr.P.C. It is true that in the present case, there is no order in the nature of imposing fine and then directing payment of the part of the fine as compensation under Section 357. The petitioner was convicted and sentenced to pay compensation and there was an order to undergo imprisonment in default. The question is whether the proviso, necessitating recording of special reasons would at all be attracted in such a case. A bare reading of the proviso would show that when there is an order for payment of compensation out of fine, the requirement of recording of special reasons is not applicable. The factual situation obtaining in the present case is on a higher pedestal than that. In the present case, the entire amount, which the petitioner is directed to pay, is in the form of compensation. The factual situation obtaining in the present case is on a higher pedestal than that. In the present case, the entire amount, which the petitioner is directed to pay, is in the form of compensation. The legislature in its wisdom has obviated the necessity to record special reasons when there is an order for payment of compensation out of fine and in my considered view, in the present case, where the petitioner has been sentenced to pay compensation, the requirement of recording the special reasons cannot be imported. Any other interpretation is bound to lead to absurd results. It is inconceivable that when a portion of the fine (which is part of sentence) is directed to be paid as compensation, no special reasons be recorded, however, where the only sentence imposed is in the nature of compensation, special reasons would be required to be recorded. Such an interpretation cannot obviously be countenanced. 11. All the three judgments cited on behalf of the petitioner arise out of the Code of Criminal Procedure, 1898 (Old Code). The corresponding section in the old Code is Section 386(1), which reads thus – “386. Warrant for levy of fine.-(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing is considers it necessary to do so.” 12. There is significant difference in so far as the proviso to subsection (1) of Section 421 of the Code of 1973 is concerned when compared to the proviso to Subsection (1) of Section 386 of the Old Code. There is significant difference in so far as the proviso to subsection (1) of Section 421 of the Code of 1973 is concerned when compared to the proviso to Subsection (1) of Section 386 of the Old Code. The proviso to Section 386(1) of the old Code, is conspicuously silent as to the absence of necessity to record special reasons when, out of the fine amount, compensation is directed to be paid. Thus, it is clear that the proviso to Section 421(1) of the Code of 1973 carves out an exception to the requirement of recording special reasons where there is an order for payment of compensation out of the fine amount, which is not to be found in the proviso to Section 386(1) of the Old Code. I find that the judgments relied upon would not come to the aid of the petitioner. 13. That apart, in the present case, I find that the learned Magistrate has considered the reply filed by the petitioner and recorded some reasons. It was not disputed during the course of arguments at bar that a specific plea as to the necessity of recording special reasons, based on the proviso to Section 421 of the Code, was not raised before the learned Magistrate. Be that as it may, in view of the fact that the warrant is issued for recovery of compensation and that the Magistrate has considered the reply filed by the petitioner and recorded reasons, while passing the impugned order, I do not find that any case for interference is made out. 14. In the result, Criminal Writ Petition is dismissed. Rule is discharged, with no order as to costs.