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2017 DIGILAW 1523 (KER)

K. Narayanan v. R. Radahakrishnan

2017-12-20

B.SUDHEENDRA KUMAR

body2017
JUDGMENT : 1. The petitioner is the accused in S.T.1999/1994 on the files of the Court of the Judicial Magistrate of First Class-I, Manjeri. 2. The trial court convicted the petitioner under Section 138 of the Negotiable Instruments Act and sentenced him thereunder to simple imprisonment for eight months. In the appeal filed against the said conviction and sentence, the Sessions Court, Manjeri confirmed the conviction and modified the sentence to simple imprisonment for three months. Aggrieved by the judgment of the appellate court, the revision petitioner filed Crl.R.P.946/2001 before this Court. As per Annexure- A4 order in Crl.R.P.946/2001, this Court confirmed the conviction and modified the sentence to imprisonment till the rising of the court and to pay a compensation of Rs.22,500/- to the complainant with a default clause for simple imprisonment for 3 months. The trial court thereafter resorted to coercive steps to execute the sentence awarded by this Court as per Annexure-A4 order. 3. In the said circumstances, the petitioner has approached this Court praying for quashing the coercive steps initiated against the petitioner by the trial court in the above case contending that if the period of imprisonment from 31.12.2001 to 30.03.2002 undergone by the petitioner is treated as set off against the default sentence, then the petitioner had already suffered the default sentence and consequently, the steps initiated by the trial court cannot be sustained. 4. Heard. 5. It is borne out from Annexure-A3 that this Court as per order dated 23.08.2001 in Crl.M.A.4516/2001 in Crl.R.P.946/2001 suspended the execution of sentence awarded by the appellate court on condition of the petitioner executing a bond for Rs.15,000/- with two solvents sureties each for the like sum to the sanctification of the trial court and on depositing Rs.10,000/-, simultaneously at the time of executing the bond. Since the petitioner was not in a position to deposit the above said amount, the petitioner was committed to the District Jail, Kozhikode by the trial court on 31.12.2001 in execution of the sentence awarded by the Sessions Court in Crl. Appeal No.120/1997. Thereafter, the petitioner was released from the jail on 30.03.2002 on the expiry of the term of sentence. The above aspect is revealed from the report dated 10.07.2015 received from the learned Magistrate. 6. Appeal No.120/1997. Thereafter, the petitioner was released from the jail on 30.03.2002 on the expiry of the term of sentence. The above aspect is revealed from the report dated 10.07.2015 received from the learned Magistrate. 6. Now the question to be considered is as to whether the period of sentence suffered by the petitioner from 31.12.2001 to 30.03.2002 can be treated as set off against the default sentence awarded by this Court as per Annexure-A4 order. 7. At this juncture, it is relevant to understand Section 428 Cr.P.C., which is extracted hereunder:- “428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him: Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.” 8. It is clear from a bare reading of Section 428 Cr.P.C. that the period of detention undergone by the accused during the investigation, inquiry or trial of the same case and before the date of conviction, shall be set off against the term of imprisonment other than the imprisonment in default of payment of fine. It is clear from Section 428 Cr.P.C. that the detention underdone by the accused during the investigation, enquiry or trial of the case and before the date of conviction, shall not be set off against the term of imprisonment in default of payment of fine. It is also clear that the provisions of Section 428 Cr.P.C. are applicable only in respect of detention undergone by an accused upto the date of conviction. In other words, any detention undergone by the accused subsequent to the date of conviction can only be a detention in execution of the sentence awarded by the court pursuant to the conviction. It is also clear that the provisions of Section 428 Cr.P.C. are applicable only in respect of detention undergone by an accused upto the date of conviction. In other words, any detention undergone by the accused subsequent to the date of conviction can only be a detention in execution of the sentence awarded by the court pursuant to the conviction. Therefore, the rider under Section 428 Cr.P.C. in respect of default sentence is not applicable in respect of the detention pursuant to the conviction. The above discussion would make it clear that the period of detention undergone by the accused after the date of conviction in a particular case, shall be set off against the term of imprisonment including imprisonment in default of fine imposed on him in the said case. If the sentence is subsequently modified to a lesser term of imprisonment and the accused had already underdone imprisonment for a term exceeding the modified sentence of imprisonment after the conviction by the trial court, then the period of imprisonment undergone by the accused in excess of the period of modified sentence of imprisonment shall be set off against the imprisonment in default of fine. 9. In the present case, this Court as per Annexure- A4 order modified the sentence to imprisonment till the rising of the court and to pay a compensation of Rs.22,500/- with a default clause for simple imprisonment for three months. It is clear from the facts of this case that the petitioner was convicted by the trial court as per Annexure-A1 judgment dated 22.08.1997. The petitioner in this case had undergone detention from 31.12.2001 to 30.03.2002. Therefore, there can be no doubt that the detention undergone by the petitioner in this case was pursuant to conviction and hence the said detention cannot be treated as a detention for the purpose of Section 428 Cr.P.C. The sentence awarded in the above said case by the courts below was modified and reduced by this Court to imprisonment till the rising of the court and to pay a compensation of Rs.22,500/- with a default clause for simple imprisonment for three months. Since the detention undergone by the petitioner in this case was in execution of the sentence, the said period of detention must be set off against the default sentence awarded by this Court. 10. Since the detention undergone by the petitioner in this case was in execution of the sentence, the said period of detention must be set off against the default sentence awarded by this Court. 10. In view of the above reasons, the coercive steps taken by the trial court against the petitioner in S.T.1999/1994 stand quashed as the petitioner had already suffered the sentence. I make it clear that this order will not stand in the way of the court below in taking steps to recover the amount of compensation from the petitioner in accordance with law. In the result, this Crl.M.C. stands allowed.