C. Dinesan v. V.C.V. Kutty and State of Kerala (CRL.M.C. 4347/2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Crl.MC.No. 4347 of 2005 ------------------------CC.214/1989 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... ## PETITIONER: ACCUSED. -------------------- C.DINESAN, S/O.APPUKUTTY, CHIPPILIKAT HOUSE, P.O.MAKKADA VIA, KAKKODI, KOZHIKODE DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENTS: COMPLAINANT AND STATE. ----------------------------------- 1. V.C.V. KUTTY, S/O.MADHAVAN NAIR, CHERUKKANCHERI HOUSE, P.O. NELLICODE, KOZHIKODE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## CRL.M.A. NO. 15651/2005 IN CR.M.C.NO. 4347/2005 ## DISMISSED. 7-8-2008 SD/- M.C. HARI RANI, JUDGE TRUE COPY P.S.TO JUDGE ## M.C. HARI RANI, J. ====================== ## CRL.M.C.NO. 4347 OF 2005 ========================= Dated this the 7TH AUGUST 2008 ## ORDER The petitioner is the accused in C.C.No. 214/1989 on the file of the Chief Judicial Magistrate Court, Kozhikode. The first respondent herein was the complainant in that case filed under Section 138 of the Negotiable Instruments Act. The petitioner was convicted and sentenced to pay a fine of Rs.25,000/- and in default to suffer simple imprisonment for three months. It was also ordered that out of the fine, if collected, to pay a sum of Rs.20,000/- to PW1 as compensation. Annexure-A is copy of the judgment in C.C.No.214/1989 dated 6-4-1991. The petitioner filed Crl.A.No. 83/1991 before the Sessions Court, Kozhikode. That appeal was dismissed as per judgment dated 12-1-1995 as stated by the petitioner in paragraph 4 of this petition. No further revision has been preferred. The petitioner has surrendered before the trial court and suffered the sentence of CRL.M.C.NO. 4347/2005 -2- simple imprisonment for three months, which according to the petitioner was due to his incapacity to pay the fine amount. Thereafter, the trial court, the Chief Judicial Magistrate, Kozhikode, issued a distress warrant against the petitioner under Section 421(1)(a) of the Code of Criminal Procedure. Then, the petitioner has filed C.M.P.No.2916/2004 before the Court of Chief Judicial Magistrate, Kozhikode, which is produced as Annexure-B to recall the warrant for the reason that he had already undergone simple imprisonment in default of payment of fine and contended that no further proceedings shall be taken against him. That petition has been dismissed by the learned Chief Judicial Magistrate as per Annexure-C order dated 25-4-2005. Therefore, this petition is filed under Section 482 of the Code of Criminal Procedure before this Court to quash Annexcure-C order and all further proceedings against the petitioner in C.C.No.214/1989. 2. Several adjournments were given after 31-7-2008 by this Court for hearing of this matter. In spite of the same, no representation was made on behalf of the petitioner. Counsel also absent. Heard the learned counsel appearing for the first CRL.M.C.NO. 4347/2005 -3- respondent and the learned Public Prosecutor. 3. It is alleged in this petition that Annexure-C order is illegal and contrary to Section 421 of Cr.P.C. It is also contended that since the petitioner has suffered imprisonment and even after the imprisonment, proceedings for recovery of the fine amount by resort to the provision of Section 421(1)(b) and its proviso initiated against the petitioner amounts to double jeopardy and violates the fundamental rights of the petitioner under Article 20(2) of the Constitution of India. 4. The learned counsel for the first respondent has relied on a decision of this Court in Saji Kumar v. Soman Pillai, 2006(3) K.L.T.679 wherein the point is specifically covered. Importance of proviso to Section 421(1)Cr.P.C. has also been dealt with as follows:- “It incorporates certain rules relating to recovery of fine. If there is a sentence of fine and a default sentence, and if the person has already undergone the sentence of imprisonment in default, no court should issue a warrant for recovery of the fine amount under clauses (a) & (b) of S.421 Cr.P.C. This is the normal rule. But this is not a rule which does CRL.M.C.NO. 4347/2005 -4- not admit exceptions. Two exceptions are specified in the proviso. They are: 1) if the court for special reasons to be recorded in writing, considers such recovery necessary and 2) if the court has issued an order for payment of expenses or compensation out of the fine amount under S.357 Cr.P.C. These are cases where the Court is invested with powers to deviate from the normal rule that when the indictee has undergone the default sentence for non payment of fine, he cannot be proceeded against for recovery of fine. The exceptions seem to have very sound and rational basis. The purpose of imposing default sentence is to ensure compliance. A person cannot frustrate the attempt of the law to recover the fine amount by merely opting to undergo the sentence in default. If a court is satisfied that any indictee is resorting to such a deviant course to avoid payment of fine, certainly courts are left with the discretion under the first part of the proviso. In an appropriate case, the property can be proceeded against for recovery of the fine amount notwithstanding the fact that the default sentence has been undergone. That discretion is retained with the court. xx xx xx CRL.M.C.NO. 4347/2005 -5- If out of the fine amount, compensation has been directed to be paid, such direction is with the primary object of compensating the victim. Principles of victimology come into play. The legislature zealously wants to ensure that the victim is not deprived of the compensation awarded if recovery is possible under clauses (a) & (b) of Section 421. Therefore in a case where there is a direction to apply the fine amount as compensation to the victim, proceedings for recovery under the clauses (a) & (b) of S.421(1)Cr.P.C. shall(must) continue notwithstanding the fact that the accused has undergone the default sentence.” 5. In the light of the dictum laid down in the above decision and considering the facts and circumstances of this case also, I find that the fact that the default sentence was undergone by the petitioner is no immunity against the subsequent attempts for recovery of the fine amount for compensating the victim as already ordered, by issuing distress warrant as ordered by the learned Chief Judicial Magistrate, Kozhikode as per Annexure-C order. Therefore, there is no illegality or impropriety in the order and the prayer in this petition is devoid of merit and it is CRL.M.C.NO. 4347/2005 -6- liable to be dismissed. In the result, the Crl.M.C.is dismissed. ks. M.C. HARI RANI JUDGE