Kerala High Court
K.C.Augustine vs P.N.Rajasekharan on 9 June, 2017
Equivalent citations: 2017 ACD 828 (KER), (2018) 181 ALLINDCAS 713 (KER), (2017) 3 KER LJ 701, (2017) 3 KER LT 893, (2018) 2 NIJ 243
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939
Crl.Rev.Pet.No. 680 of 2013
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AGAINST THE JUDGMENT IN CRL.A.NO. 235/2012 OF THE SESSIONS COURT,
ALAPPUZHA
AGAINST THE JUDGMENT IN C.C.NO. 66/2008 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, CHERTHALA
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REVISION PETITIONER(S)/APPELLANT/ACCUSED :
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K.C.AUGUSTINE,
S/O. CHACKO, AGED 61 YEARS, THOTTUVELLIL,
CULLEN ROAD, H.P.O,ALAPPUZHA - 688 001.
BY ADV. SRI.R.AZAD BABU
RESPONDENT(S)/RESPONDENTS/COMPLAINANT :
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1. P.N.RAJASEKHARAN, AGED 60 YEARS,
S/O. LATE KRISHNA IYER, PALLIPATTU HOUSE,
THANNEERMUKKOM P.O., CHERTHALA,
ALAPPUZHA DISTRICT - 688 527.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.JOSON MANAVALAN
R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 09-06-2017, ALONG WITH Crl.Rev.Pet.No. 840 OF 2014, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
ALEXANDER THOMAS, J.
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Crl.R.P.Nos.680/2013 & 840/2014
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Dated this the 9th day of June, 2017
O R D E R
The factual transactions in these two matters are connected. The complainant is the same person in both these matters. The sole accused in Crl.R.P.No.680/2013 is the 2nd petitioner (A-1) in Crl.R.P.No. 840/2014 and the 1st petitioner in Crl.R.P.No. 840/2014 (A-2) is his wife. The two cheques involved in these two matters are arising out of the very same transaction, by which, the petitioners had owed a total liability of Rs.36.10 lakhs to the complainant and they had issued the two cheques in question each coming to Rs. 18.05 lakhs. In the light of these aspects, both these matters are disposed of by this common order.
2. The petitioner in Crl.R.P.No.680/2013 is the accused in C.C.No.66/2008 on the file of the Judicial First Class Magistrate's Court-I, Cherthala, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent (complainant). The trial court as per the impugned judgment dated 18.6.2012 had convicted the petitioner and had sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs.18,05,000/- to the complainant under Sec.357(3) of the Cr.P.C and in Crl.R.P.680/13 & c.c - : 2 :-
default thereof, to undergo simple imprisonment for 2 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.235/2012 before the appellate Sessions Court concerned (Court of Sessions Judge, Alappuzha). The appellate court as per the impugned appellate judgment dated 12.12.2012 has upheld the conviction, but modified and reduced the substantive sentence of from six months to one month's simple imprisonment and maintained the compensation amount of Rs. 18.05 lakhs. It is aggrieved by the said findings of both the courts below that the petitioner in Crl.R.P.No. 680/2013 has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C.
3. The petitioners in Crl.R.P.No.840/2014, who are husband and wife, are the accused in C.C.No.67/2008 on the file of the Judicial First Class Magistrate's Court-I, Cherthala, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent (complainant). The trial court as per the impugned judgment dated 28.10.2011 had convicted the petitioners and had sentenced them to undergo simple imprisonment for one year and to pay compensation of Rs. 18,05,000/- to the complainant, in default of payment of, the petitioners were sentenced to undergo simple imprisonment for a further period of 6 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.533/2011 before the appellate Crl.R.P.680/13 & c.c - : 3 :-
Sessions Court concerned (Court of Addl. Sessions Judge, Alappuzha). The appellate court as per the impugned appellate judgment dated 11.9.2013 had upheld the conviction, but modified the substantive sentence from one year to three months' simple imprisonment and maintained the compensation amount of Rs.18.05 lakhs. It is aggrieved by the said findings of both the courts below that the petitioners in Crl.R.P.No.840/2014 have preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C.
4. Heard Sri.R.Azad Babu, learned counsel appearing for the revision petitioners (accused) appearing in both these cases, Sri.M.Gopikrishnan Nambiar, learned counsel appearing for R-1 (complainant) in these cases and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
5. Sri.R.Azad Babu, learned counsel appearing for the revision petitioners (accused) submits on the basis of the instructions of his parties that the revision petitioners are not challenging the legality of the impugned conviction in these cases and would limit their prayers only for setting aside the substantive sentence imposed in these cases and confine the sentence to fine with the default sentence clauses. Further it is also pointed out that in compliance with this Court's earlier interim order dated 2.4.2013 passed in Crl.R.P.No.680/2013 the petitioner Crl.R.P.680/13 & c.c - : 4 :-
therein has already deposited Rs.9,00,250/- (50% of the fine/ compensation amount of Rs.18.05 lakhs) before the trial court in relation to that case and that the two petitioners in Crl.R.P.No.680/2013 have also deposited Rs.1 lakh each, (thus totalling to Rs. 2 lakhs) before the trial court in relation to that case, in compliance with this Court's interim order dated 5.6.2014. It is also pointed out that the petitioners would require at least 9 months' time to pay the balance compensation/fine amount in Crl.R.P.No. 680/2013 and would require at least another 9 months' time therefrom to pay off the compensation/fine amount in Crl.R.P.No.840/2014 and that unless such time is granted, the petitioners will not be in a position to immediately pay off the huge amount within a short time. Sri.M.Gopikrishnan Nambiar, learned counsel appearing for the 1st respondent complainant in these cases submits that despite diligent efforts, he could not secure instructions either from the complainant or his power of attorney, as the complainant is now abroad and that this Court may pass appropriate orders in the interest of justice safeguarding the interests of the complainant.
6. The substantive sentence in the matter in relation to Crl.R.P.No. 680/2013 is for one month, as modified by the appellate court and the default clause is simple imprisonment for 2 months. The substantive sentence involved in the matter in relation to Crl.R.P.No. 840/2014 is simple imprisonment for 3 months as modified by the Crl.R.P.680/13 & c.c - : 5 :-
appellate court and default sentence in that case is 6 months. The fine/compensation amount in both these cases comes to Rs.18.05 lakhs in each of the cases.
7. The Apex Court in the case judgment in Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong, which has been given criminal overtones by the Parliamentary intervention through the amendment of the N.I. Act and that the gravity of such a complaint cannot be equated with an offence under IPC and, instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. Further, their Lordships of the Supreme Court have also held in the case in Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SC 1907 that in case of dishonour of cheques, it is the compensatory aspect of the remedy, which should be given utmost priority over the punitive aspects. The nature the transactions between the parties is arising out of agreement for sale of immovable property. Even the complainant is more interested to ensure that the fine/compensation amounts ordered by the courts below are paid to the complainant without any further delay, rather than making the accused persons suffer jail sentence. The learned counsel appearing for the complainant has also pointed out to this Court that though a civil suit was filed by the complainant for recovery of money in respect of the Crl.R.P.680/13 & c.c - : 6 :-
same transaction, as against the accused persons herein, the complainant /plaintiff could not proceed further to get any attachment orders through the civil court, as to his best of the inquiry, it was revealed that the accused are not having any immovable properties. Since the revision petitioners have volunteered to make the payments, without contesting the matter on merits, this Court is under a duty to prudently and wisely issue directions to ensure that necessary deterrence is put on the accused to pay the amounts, but at the same time, to avoid substantive jail sentence, in the light of the abovesaid legal principles laid down by the Apex Court. If the substantive sentence imposed on the petitioners is confirmed, they would have to suffer jail sentence and they may not be in a position to raise the requisite money to pay off the amounts due to the complainant. Therefore, wisdom and prudence demand that this Court may set aside the impugned substantive sentence and sentence the petitioners to pay the fine of the amounts already ordered by the courts below. But at the same time, sufficient time should also be granted to the petitioners. The petitioners now state that they have already paid Rs.11 lakhs out of the total Rs. 36.10 lakhs. Time could also be granted to the petitioners so as to raise money to pay it to the complainant within the time limit stipulated by this Court. But at the same sufficient deterrence should be put on the accused by way of prudent sentencing policy to ensure that the petitioners are constrained to pay the amounts to the Crl.R.P.680/13 & c.c - : 7 :-
complainant within the time that may be granted by this Court. So this Court is inclined to set aside the substantive sentence and confine the sentence only to fine of Rs.18.05 lakhs each in these two cases, but the deterrence on the accused should be put by awarding appropriate default sentence in both these cases so that in case the petitioners fail to pay the abovesaid amount, the ends of justice should also be met in the operation of the default clause. Such default clause should be one which would also to put necessary deterrence on the petitioners so as to pay the money.
8. In this regard, it would be appropriate refer to the provisions contained in Sec.138 of the Negotiable Instruments Act, which deals with the punishment for that offence. The operative portion of Sec. 138 of the N.I. Act stipulates that the accused on conviction be punished with imprisonment for a term, which may be extended to two years or with fine, which may extend to twice the amount of the cheque, or with both. The said operative portion of Sec. 138 of the N.I. Act reads as follows:
"Sec.138: Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Crl.R.P.680/13 & c.c - : 8 :-
xxx xxx xxx"
9. Sec.30 of the Cr.P.C. 1973 which deals with sentence of imprisonment in default of fine, reads as follows:
Court of"Sec.30. Sentence of imprisonment in default of fine.-- (1) The payment aofMagistrateauthorised by law:
may award such term of imprisonment in default of fine as is Provided that the term--
(a) is not in excess of the powers of the Magistrate under Section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29."
10. It is settled position that in view of the provisions contained in Sec. 4(2) of the Cr.P.C. 1973, the provisions of that Code would apply even for regulating the inquiries and trials of offences under special statutes like the N.I. Act, so long as there are no specific provisions in the special enactment covering the situation at hand. Clause (b) of the proviso to sub-section (1) to Sec.30 of Cr.P.C. 1973 stipulates that the term shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment, which the Magistrate is competent to inflict as punishment for the offence punishable otherwise than as imprisonment in default of payment of the fine. Therefore, in an offence like one under Sec.138 of the Negotiable Instruments Act, where the trial court could have imposed substantive sentence of term, which may extend upto two years or with Crl.R.P.680/13 & c.c - : 9 :-
fine or with both and where the criminal court imposes a substantive sentence and a fine, then in such a case, the default sentence clause for non payment of fine shall not exceed one-fourth of the term of imprisonment, which the Magistrate is competent to inflict as punishment for the offence. This Court has dealt with that issue in the judgment in Anil Babu v. State of Kerala & Anr. reported in 2017 (2) KHC 639, paras 8 and 9 of which read as follows:
'8. Sri.D.Kishore, learned counsel for the revision petitioner/accused submits that the said default sentence imposed by both the courts below that the accused should undergo simple imprisonment for the maximum period of simple imprisonment for 2 years on default to pay the compensation of Rs.2 lakhs is clearly ultra vires under proviso (b) to Sec.30(1) of the Cr.P.C. The learned Public Prosecutor was also asked to assist this Court on this issue. Both the learned counsel appearing for the revision petitioner/accused as well as the learned Public Prosecutor has pointed out before this Court that the maximum sentence that could be imposed on accused on conviction for the offence under Sec.138 is one that could be extended upto 2 years simple imprisonment. Sec.30 of the Cr.P.C. has also been brought to the notice of this Court which reads as follows:
"Sec.30:- Sentence of imprisonment in default of fine.-(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law Provided that the term--
(a) is not in excess of the powers of the Magistrate under section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29."
9. Accordingly it is submitted by the revision petitioner as well as by the prosecutor that since the maximum punishment that could have been imposed by the learned Magistrate for conviction for an offence under Sec.138 of the Negotiable Instruments Act is one that to the extend upto two years, the default sentence could not have exceeded <th of the said two years, which is 6 months. On consideration of the provisions Crl.R.P.680/13 & c.c - : 10 :-
contained under Sec.138 of the Negotiable Instruments Act as well as under Sec.30 of the Cr.P.C., this Court is of the view that the said submission made by the revision petitioner as well as by the prosecutor are correct. The trial court, appellate court and revisional court, while considering the question of sentence under Sec.138 of the Negotiable Instruments Act is also bound by the restriction imposed by Sec.30 of the Cr.P.C., more particularly, the one imposed by Clause (b) of proviso (2) Sub Section (I) of Sec.30 of the Cr.P.C. In that view of the matter this Court is of the considered opinion that the default sentence of 2 years imposed by the learned Magistrate and as affirmed by the appellate court is clearly illegal and ultravires and the same will stand set aside. Taking into account the various aspects of the matter, this Court is of the view that the default sentence clause could be limited to 3 months."
11. Sec. 25 of the General Clauses Act, 1897 (Central Act 10 of 1897) deals with recovery of fines and stipulates as follows:
"Sec.25: Recovery of fines.- Sections 63 of 70 of the Indian Penal Code (45 of 1860) and the provisions of the Code of Criminal Procedure (5 of 1898)] for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law unless the Act, Regulation, rule, or bye-law contains an express provisions to the contrary."
12. It is well established by various rulings as the one rendered by the Bombay High Court, reported in 2007(1) AIR Bom. R(NOC), etc. that the words, "authorised by law", appearing in Sec. 30 (1) of the Cr.P.C. 1973 mean authorised by all provisions of law taken together and these provisions are to be found Secs.63 to 70 of the Indian Penal Code, which by the mandate of Sec. 25 of the General Clauses Act, 1897 are made applicable to all fines imposed under the authority of any act, unless such act contains an express provision to the contrary. Provisions as in Sec. 29, 30, etc. of the Code come under Chapter III of the Cr.P.C. which deals with "Power of Courts". The provisions as in Secs.63 to 70 of the I.P.C. come under Chapter III of that Code, coming under the caption, "Of Crl.R.P.680/13 & c.c - : 11 :-
Punishments". It will be relevant to note that Chapter III of the I.P.C. is with the caption, "OF PUNISHMENTS" and Sec.53 thereof provides as follows:
"Sec.53. Punishments.--The punishments to which offenders are liable under the provisions of this Code are--
First.- Death;
Secondly.--Imprisonment for life;
2[***] Fourthly.- Imprisonment, which is of two descriptions, namely:--
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly - Forfeiture of property;
Sixthly.-Fine."
(emphasis supplied)
It has been held by the Division Bench of the Bombay High Court in Daulat Raghunath Derale v. State of Maharashtra reported in 1991 Crl.L.J.817, p.820 = 1991 (1) Crimes 855, p.859, that a sentence of imprisonment can be awarded in default of payment of fine even though no such imprisonment in default of payment of fine is provided for by a local law or special statute concerned. It has been held in the judgment of this Court in K.Narayanan Nambiar vs. A.M.Mathew, reported in 2009 Crl.L.J.30, p.33, (Ker) = 2008 (4) KLT 76, that a default sentence is not punishment or sentence stricto sensu and the imposition of default sentence is only a mode of enforcement, etc. It has been held by the Madras High Court in P.Balaram v. Madras, reported in 1991 Crl.L.J.166 (mad) = 1990 Mad. L.J. (Cri) 534 that a term of imprisonment in default Crl.R.P.680/13 & c.c - : 12 :-
of payment of fine cannot be deemed to be a sentence and is essentially a penalty, which is incurred on account of non payment of fine. That a sentence is something which must necessarily be undergone unless it is remitted in part or in whole, etc. and that However a term of imprisonment is imposed in default of payment of fine, the accused may always avoid it by paying the fine. Therefore, the imprisonment sentence in default of payment of fine is merely a penalty for non payment of fine and so the imprisonment awarded in the event of default of payment of fine cannot be added up to the substantive sentence of imprisonment to negative the competence of the magistrate/judge. It has been held that in various judgments that a sentence imposed in default in payment of fine cannot be directed to run concurrently with substantive sentence as the two are distinct. (see Sukumaran v. State, reported in 1993 Crl.L.J.3228, p.3229 (Ker.), State v. Raman reported in 1970 KLT 1018, State of Kerala v. Sreedharan reported in 1967 KLT 1014, etc.). It has been held by the Apex Court in Joseph Moolayil v. V.A.Chacko & Anr. reported in (2006) 9 SCC 165 = (2006) 2 SCC (Cri.) 352 that there is no distinction made in case a fine is not paid in relation to the offence under the I.P.C. vis-a-vis offence under Sec. 138 of the N.I. Act and that therefore, invocation of fine and imprisonment in default of fine for offence under Sec. 138 of N.I. Act could be proper. Sec.65 of the I.P.C. fixes the maximum period of imprisonment, which may be awarded in Crl.R.P.680/13 & c.c - : 13 :-
default of payment of fine and Sec.30 of the Cr.P.C., 1973 (corresponding to Sec.33 of Cr.P.C., 1898) governs specifically the powers of the magistrate. There is no conflict between Sec.33 of the Cr.P.C. 1973 and Sec. 65 of the I.P.C. and both are to be harmoneously effectuated as held by the Apex Court in Chhajulal v. State of Rajasthan, reported in (1972) 3 SCC 411= AIR 1972 Sc 1809. Under Sec.65 of the I.P.C., the term of imprisonment that may be awarded in default of payment of fine may not exceed one fourth of the term of imprisonment, which is the maximum fixed for the offence. (see Donatus Tony Ikwanusi v. Investigating Officer, reported in 2013 Crl.L.J.1938, (Mad) (FB)]. The Apex Court in Shantilal v. State of M.P. reported in (2007) 11 SCC 243 has considered the question of imprisonment in default of payment of fine with reference to various provisions under the I.P.C. and Cr.P.C., 1973, and held as follows:
"31. The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstancesand committed, considerationsthe position of the offender under whichrelevant it was other before ordering the offender to suffer imprisonment in default of payment of fine."
The Apex Court in Shahejadkhan Mahebubkhan Pathan v. State of Crl.R.P.680/13 & c.c - : 14 :-
Gujarat, (2013) 1 SCC 570 has reiterated the same view and held as follows:
"12. It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 IPC make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.
13. While taking note of the above principles, we are conscious of the fact that the present case is under the NDPS Act and for certain offences, the statute has provided minimum sentence as well as minimum fine amount. In the earlier part of our judgment, taking note of the fact that the appellants being the first-time offenders, we imposed the minimum sentence i.e. 10 years instead of 15 years as ordered by the trial court. In other words, the appellants have been ordered to undergo substantive sentence of RI for 10 years which is minimum."
13. Sec.67 of the I.P.C. deals with imprisonment for non payment of fine when offence is punishable with fine only and it reads as follows:
"Sec. 67: Imprisonment for non-payment of fine when offence punishable with fine only.- If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any terms not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any terms not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case."
Sec. 66 of the I.P.C. envisages the description for imprisonment for non Crl.R.P.680/13 & c.c - : 15 :-
payment of fine and it provides as follows:
"Sec. 66: Description of imprisonment for non-payment of fine.- The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence."
Sec.64 of the I.P.C. deals with sentence of imprisonment for non payment of fine and it reads as follows:
"Sec. 64: Sentence of imprisonment for non-payment of fine.- In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence."
Sec. 65 of the I.P.C. speaks of the limit to imprisonment for non payment of fine, when imprisonment and fine are awardable and it stipulates as follows:
"Sec. 65: Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.- The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine."
14. The inter play and inter relationship between the provisions in Sec. 33 of the Old Code (Cr.P.C. 1898) (which corresponds to Sec. 30 of the Cr.P.C. 1973), on the one hand and Sec. 65 of the I.P.C., 1860 arose for consideration before the Apex Court in the judgment dated Crl.R.P.680/13 & c.c - : 16 :-
17.3.1972 in Chhajulal v. State of Rajasthan, reported in (1972) 3 SCC 411 reported in 1972 (3) SCC 411 = AIR 1972 SC 1809. In the said judgment their Lordships of the Supreme Court by placing reliance on the Full Bench judgment of the Madras High Court in Reg. v. Muhammed Saib, reported in ILR (1) Mad. 277 (FB), held that Sec. 33 of the Cr.P.C.
1898 (which now corresponds to Sec. 30 of the Cr.P.C. 1973) would override Sec. 65 of the I.P.C. 1860 or that to be more accurate, apply specifically to magistrates. However, it has also been held by the Apex Court in that judgment in Chhajulal''s case supra that Sec.33 of the Cr.P.C. 1898 does not authorise a magistrate to pass a sentence in default of payment of fine in excess of the term prescribed by Sec. 65 of the I.P.C. and that the said sections in the I.P.C. and Cr.P.C. must be harmonised and that while a magistrate's powers are specially limited by Sec. 33 Cr.P.C. 1898, they must also be exercised so as not to contravene Sec. 65 of the I.P.C. It will be profitable to refer to the text of the said judgment in Chhajulal v. State of Rajasthan, reported in (1972) 3 SCC 411 = AIR 1972 SC 1809, which reads as follows:
" The appellant was convicted under Section 406 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and a fine of Rs 500, and, in default of payment of fine, to three months further rigorous imprisonment, by the Munsif Magistrate of Karoli, District Bharatpur, Rajasthan. On an appeal by him to the Court of Sessions, his conviction was set aside, but the trial court was directed to proceed with the case afresh from the stage at which the appellant should have been properly examined under Section 342 of the Criminal Procedure Code. The appellant was then given a full opportunity, under Section 342 of the Criminal Procedure Code, to explain the facts and circumstances appearing against him in the case. Thereafter, he also produced five witnesses in defence. He was however, convicted again and sentenced to two years rigorous imprisonment and to pay fine of Rs 2000, and, in default, to undergo one year's further rigorous imprisonment. The appellant again appealed to the Court of Crl.R.P.680/13 & c.c - : 17 :-
Sessions which dismissed his appeal. The appellant then filed a revision application which was dismissed summarily by the High Court of Rajasthan. Soon after that, the appellant made another attempt to invoke the inherent jurisdiction of the High Court, by applying under Section 561-A of the Criminal Procedure Code, to get at least an illegality in the sentence corrected, but this also failed. A prayer for a certificate of fitness of the case to appeal to this Court was also rejected by the High Court. The appellant then applied under Article 136 of the Constitution to this Court. That application was admitted only on the question of the period of imprisonment awarded in default of payment of fine. It is this question only which has been argued before us.
2. Section 33 of the Criminal Procedure Code runs as follows:
"33. (1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as it authorised by law in case of such default:
Provided that--
(a) the term is not in excess of the Magistrate's powers under this Code;
(b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 32."
3. The Munsif Magistrate who convicted the appellant had the powers of a Magistrate 1st Class which are restricted, by Section 32, sub-section (1)(a), to imposing imprisonment for a term not exceeding two years and fines not exceeding Rs 2000. Reading Sections 32 and 33 together, it was clear that, in the case before us, the Munsif Magistrate could not award more than six months imprisonment in default of payment of fine.
4. In answer to the appellant's contention, based on Section 33 of the Criminal Procedure Code, learned counsel for the State of Rajasthan placed Section 65 of the Indian Penal Code before us. This section reads as follows:
"65. The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine."
5. It will be seen that even where Section 65 of the Indian Penal Code is applied by a court the term of imprisonment in default of payment of fine cannot exceed one-fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted. An offence under Section 406 of the Indian Penal Code, is punishable with imprisonment which can extend to only three years rigorous imprisonment and a fine. Thus even if Section 65 of the Indian Penal Code, could be applied, the period of imprisonment in default of payment of fine could not exceed nine months.
6. It is clear that Section 65 only fixes a maximum period of imprisonment which can be awarded for default of payment of fine whenever any court convicts. On the other hand, Section 33 of the Criminal Procedure Code governs specifically the powers of 1st Class Magistrates on this matter. Section 33 of the Criminal Procedure Code also contains the principle embodied in Section 65 of the Indian Penal Code in its application to Magistrates. Just as a 1st Class Magistrate trying an offence punishable under Section 406 of the Indian Penal Code, cannot impose the maximum amount of imprisonment prescribed by this section, because his powers of awarding imprisonment are specifically limited to those conferred by Section 32 of the Criminal Procedure Code, so also he cannot, by resorting to Section 65 of the Indian Penal Code, award a period of imprisonment in default of payment of fine on the erroneous assumption that he has the power to award the maximum sentence prescribed by Section 406 of the Indian Penal Code.
7. Section 65 of the Indian Penal Code was enacted in 1860. In 1872, Section 309 of the Criminal Procedure Code, 1872, enacted: "where a person is sentenced to fine only the Crl.R.P.680/13 & c.c - : 18 :-
Magistrate may award such terms of imprisonment in default of payment of fine as is allowed by law provided that the amount does not exceed the Magistrate's powers under this Act."
8. It was held in Reg. v. Muhammed Saib [ILR 1 Mad.277 (FB)] that Section 309 of the Code of 1872, overruled the provisions of Section 65 of the Indian Penal Code. On a parity of reasoning, Section 33 of the Criminal Procedure Code of 1898, with which we are concerned here, would override Section 65 of the Indian Penal Code, or, to be more accurate, apply more specifically to Magistrates.
9. In Queen-Empress v. Venkatesagadu and Others [ILR 10 Mad 165] it was held that Section 33 of the Criminal Procedure Code of 1882, did not authorise a Magistrate to pass sentence in default of payment of fine in excess of the term prescribed by Section 65 of the Indian Penal Code. Here, reliance was placed upon a decision of Full Bench of the Allahabad High Court in the Empress of India v. Darba [ILR 1 All 461]. No case has been cited before us in which an attempt was made to justify an order of a Magistrate, whose jurisdiction to punish is limited by Section 33 of the Criminal Procedure Code, by applying Section 65 of the Indian Penal Code. It is obvious that the two sections must be harmonised. This means that, while a Magistrate's powers are specifically limited by Section 33 of the Criminal Procedure Code, they must also be so exercised as not to contravene, Section 65 of the Indian Penal Code.
10. As the sentence of one year's rigorous imprisonment in default of payment of fine passed by the Munsif Magistrate was in excess of his powers, we allow this appeal to the extent that we reduce only the sentence of one year's rigorous imprisonment awarded in default of payment of fine to six months' rigorous imprisonment. The rest of the sentence, which is quite legal, must stand. We may observe here that it would have been better if this obvious illegality and excess of power could have been corrected by the High Court when the matter was brought to its notice by means of an application under Section 561-A of the Criminal Procedure Code."
15. Incidentally it is also relevant to note that the applicability of provision contained in Sec. 65 of the I.P.C. has also been considered in an earlier judgment (dated 11.9.1970) of the Apex Court in Ram Jas v. State of U.P. reported in 1970 (2) SCC 740 = AIR 1974 SC 1811. Para 5 of that judgment (see SCC report) reads as follows:
"5. We may, in this connection, take note of another error committed by the High Court, though it is not material to the result of this appeal. The High Court upheld the sentence of fine of Rs 3000 awarded by the trial court to the appellant. The trial court had directed that, in default of payment of fine, the appellant was to undergo two years' rigorous imprisonment. The High Court made no order with regard to imprisonment in default; but by upholding the fine awarded by the trial court, the High Court impliedly also affirmed the imprisonment to be undergone in default of payment of fine. In affirming this sentence of imprisonment in default of payment of fine, the High Court failed to notice that the sentence of imprisonment in default became illegal when the conviction was altered to one under Section 419, read with Section 109 IPC. Under that section, the maximum sentence of imprisonment that can be awarded is three years Crl.R.P.680/13 & c.c - : 19 :-
and, consequently, under Section 65 IPC, the maximum term of imprisonment in default of payment of fine that could be prescribed was nine months, being one-fourth of three years. In approving the sentence of two years' imprisonment in default of payment of fine, the High Court, thus, made an order which was clearly illegal and in contravention of Section 65 IPC. The trial court had, of course, committed no error in awarding the sentence of two years' rigorous imprisonment in default of payment of fine, because that Court had recorded conviction for five different offences, each punishable with imprisonment for seven years and the fine of Rs 3000 was a part of the cumulative sentence for commission of those five offences. We have only pointed out that this error occurred, because the High Court adopted the extraordinary course of convicting the appellant for an offence with which he had never been charged, for which he had never been tried, and without examining whether the ingredients of that offence were established and what was the maximum punishment that could be awarded for it. In adopting this course, the High Court, as we have indicated earlier, failed to record a clear finding whether the offences, for which the appellant had been convicted by the trial court, were proved or not."
But it is to be noted that the inter play between Sec. 65 of the I.P.C. and Sec. 33 of the Cr.P.C. 1898 had not arisen for consideration in the said earlier judgment of the Apex Court in Ram Jas's case supra.
16. At first blush, it may appear from the wordings of clause (b) of the proviso to sub section (1) of Sec.30 of the Cr.P.C., 1973 that the limitation therein not to exceed one fourth of the maximum term of imprisonment, may be applicable only in cases, where imprisonment and fine could have been awarded, but where actually substantive prison sentence alone is actually imposed. But the provisions in Sec.65 of the I.P.C., mandate that term, for which court directs the offender to be imprisoned in default of payment of fine shall not exceed one fourth of the term of imprisonment, which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. Sec.65 of Crl.R.P.680/13 & c.c - : 20 :-
the I.P.C. applies to all cases, where the offence is punishable with imprisonment as well as fine, ie., cases where fine and imprisonment can be awarded and also those where the punishment may be either fine or imprisonment, but not both and the only cases that does not apply are those dealt with in Sec. 67 of the I.P.C., where fine only can be awarded. When both these provisions are harmoneously effectuated, the result is that the prescription that the default clause cannot exceed the one fourth of the imprisonment term, which is the maximum fixed for the offence, would come into play. This is irrespective as to whether, the sentence actually awarded is only fine, even in cases where both prison term and fine could have been awarded. The upshot of the above discussion is that the maximum default sentence that can be awarded in offences under Sec. 138 of the N.I. Act cannot exceed one fourth of the maximum term of two years, and so the maximum limit of the default clause cannot exceed six months. Such default sentence should be with due regard to the nature of the proved allegations and should be proportionate to the amount of fine. But it is also well established that imprisonment in default of fine should, however be long enough to induce the accused to pay the fine rather than suffer the imprisonment. In the light of these aspects, this Court is inclined to impose default clause sentence of six months' simple imprisonment to the petitioner in Crl.R.P.No. 680/2013 and the 2nd petitioner in Crl.R.P.No. 840/2013, having regard to the facts Crl.R.P.680/13 & c.c - : 21 :-
and circumstances of these cases. However, considering the fact that the 1st petitioner in Crl.R.P.No. 840/2013 is lady, the default sentence of 4 months' simple imprisonment could be imposed on her.
17. Accordingly, the following directions and orders are passed in Crl.R.P.No.680/2013 arising out of C.C.No.66/2008 on the file of the Judicial First Class Magistrate's Court-I, Cherthala.
(i) The impugned conviction imposed on the petitioner in this case for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed.
(ii) The impugned substantive sentence of imprisonment ordered against the petitioner by both the courts below will stand set aside. Instead, the petitioner is sentenced to pay a fine of Rs.18.05 lakhs. Since the petitioner states that he has already paid Rs.9 lakhs out of the total Rs.18.05 lakhs in respect of Crl.R.P.No. 680/2013, this Court is inclined to award default sentence of 6 months in that case.
(iii) In supersession of the orders passed by the courts below, the petitioners are sentenced to pay fine of Rs. 18.05 lakhs. In case the petitioner has deposited Rs.9 lakhs or such other amounts in relation to C.C.No.66/2008 before the trial court, then the trial court will take steps to release the said amount forthwith on an application in that regard made by the complainant or by his power of attorney holder. If such amounts have already been deposited, then those amounts will be deducted from the total amount payable by the petitioner and the petitioner need only the balance amount. The petitioner will deposit the entire balance amount in that regard in various instalments before the trial court in relation to this case and the entire amounts in that regard should be deposited within an outer time limit of 9 months from 15.6.2017.
(iv) The petitioner shall personally appear before the trial court at 11 a.m. on 17.3.2018 to satisfy the trial court about the payment of the entire amount of Rs. 18.05 lakhs. On default of the petitioner to pay the said fine amount, in full, he will have to undergo simple imprisonment for 6 months. As and when such amounts are deposited by the petitioner, the trial court will release those amounts to the complainant or his power of attorney on an application so made.
(v) Until 17.3.2018 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned sentence in this case will stand deferred.
(vi) On default of the petitioner either to appear before the trial court on 17.3.2018 or in paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioner, in accordance with law.
Crl.R.P.680/13 & c.c - : 22 :-
18. The following orders and directions are passed in relation to Crl.R.P.No.840/2014 arising out of C.C.No.67/2008 (wherein there are two accused):
(i) The impugned conviction imposed on the petitioners in this case for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed.
(ii) The impugned substantive sentence imposed in this case against the petitioners will stand set aside. Since the two petitioners in Crl.R.P.No. 840/2014 have paid only Rs.2 lakhs out of the total amount of Rs.18.05 lakhs, this Court is inclined to award default clause sentence of 6 months in that case.
(iii) In supersession of the orders passed by the courts below, the petitioners are sentenced to pay fine of Rs. 18.05 lakhs. In case the two petitioners herein have already deposited Rs.2 lakhs, then the trial court will take immediate steps to release those amounts to the complainant or his power of attorney on an application in that regard so made. In case the petitioners have deposited any amounts as mentioned herein above, then such amounts will be deducted from the total amount of Rs. 18.05 lakhs payable by them as fine, and they need to pay only the balance amount in that regard.
(iv) The petitioners arefine.
due by way of given The upto 15.12.2018 to remit the balance amount so timepetitioners may remit such amounts in various instalments. Any such amount so deposited in relation to this case shall be released by the trial court to the complainant or his power of attorney on application in that regard so made. The petitioners will personally appear before the trial court at 11 a.m. on 15.12.2018 to satisfy the trial court about the payment of the total fine amount of Rs. 18.05 lakhs in that case. On default to pay the abovesaid amount, the 1st petitioner will have to suffer simple imprisonment for 4 months and the 2nd petitioner will have to suffer simple imprisonment for six months.
(v) Until 15.12.2018 all further coercive steps taken against the petitioners in pursuance of the execution of the impugned sentence in this case will stand deferred.
(vi) On default of the petitioners either to appear before the trial court on 15.12.2018 or in paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioners, in accordance with law.
19. The learned counsel for the petitioners would submit that this Court may clarify that whatever amounts paid by the petitioners in these two cases, may be given due credit to in respect of the execution of the decree in the civil suit filed by the complainant for recovery of the Crl.R.P.680/13 & c.c - : 23 :-
money in respect of the very same subject matter. The learned counsel appearing for the complainant has no serious objections to the abovesaid suggestion and has submitted that the complainant would seek enforcement of the civil decree only in respect of the amounts over and above those paid by the petitioners in these two cases. The abovesaid submissions of both sides in that regard are also recorded.
With these observations and directions, the aforecaptioned Criminal Revision Petitions stand finally disposed of.
sdk+ ALEXANDERSd/-
THOMAS, JUDGE
///True Copy///
P.S. to Judge