Kerala High Court
Unknown vs By Advs.Sri.C.R.Vijayakumaran Pillai on 2 December, 2015
Author: B. Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939
WP(C).No. 2987 of 2016
PETITIONER(S)
SUGUNAN
S/O.SANKU, VIJAYA NIVAS, KURUMANDAL B WARD, PARAVUR, PIN
691 301.
BY ADVS.SRI.C.R.VIJAYAKUMARAN PILLAI
SRI.A.CHANDRA BABU
SRI.R.SANTHOSH (VARKALA)
SMT.S.V.HARITHA
RESPONDENT(S):
1. STATE OF KERALA
REP. BY THE PRINCIPAL SECRETARY, REVENUE, GOVT. OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. DISTRICT COLLECTOR
CIVIL STATION, KOLLAM 691 001.
3. THE DEPUTY TAHSILDAR
OFFICE OF THE TAHSILDAR (R.R.KOLLAM),
CIVIL STATION, KOLLAM 691 001.
BY GOVERNMENT PLEADER SRI.B.JAYASURYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 2987 of 2016 (W)
APPENDIX
PETITIONER(S)' EXHIBITS
P1- TRUE COPY OF THE DEMAND NOTICE NO.2015/590165/2 IN TALUK FILE NO.D4
6135/2015 DATED 2.12.2015
P2- THE TRUE COPY OF THE NOTICE NO.D4 6135/15 DATED 21.12.2015 ISSUED BY THE 3RD
RESPONDENT
P3- THE CERTIFIED COPY OF THE ORDER DATED 29.10.2015 PASSED BY THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR IN CMP NO.3402/2015
P4- THE CERTIFIED COPY OF THE ORDER DATED 28.11.2015 IN CMP NO.34502/2015 PASSED
BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR
P5- TRUE COPY OF THE JUDGMENT DATED 10.11.2014 OF THE HON'BLE HIGH COURT OF
KERALA IN CRIMINAL APPEAL NO.1033/2014
P6- THE TRUE COPY OF THE OBJECTION DATED 21.12.2015 SUBMITTED BY TE PETITIONER
BEFORE THE DISTRICT COLLECTOR, KOLLAM
RESPONDENT'S EXHIBITS: NIL
----------------------
TRUE COPY
PA TO JUDGE
Scl.
B. SUDHEENDRA KUMAR, J.
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W.P.(C) No. 2987 of 2016
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Dated this the 26th day of February, 2018
JUDGMENT
The prayers in this writ petition are extracted hereunder:
"(i) To pass a writ of mandamus or any other appropriate writ or order declaring that the Exhibit P1 & P2 notices are erroneous, ultravires, illegal, unconstitutional and liable to be set aside.
(ii) To pass a writ of mandamus or any other appropriate writ or order declaring that the Exhibit P3 & P4 orders are erroneous, ultravires, illegal, unconstitutional and liable to be set aside.
(iii) To pass a writ of mandamus or any other appropriate writ or order to stop all further proceedings under Exhibit P1 Demand Notice No.2015/59165/2 in Taluk File No.D4 6135/2015 dated 2.12.2015 & Exhibit P2 notice No.D4 6135/15 dated 21.12.2015 issued by the 3rd respondent in this case."
2. Heard both sides.
3. The petitioner was convicted and sentenced by the trial court under Section 138 of the N.I.Act. The appeal filed against the said conviction and sentence was dismissed, against which the petitioner filed revision W.P.(C) No. 2987 of 2016 -2- petition before this Court. As per Ext.P5 order, this Court confirmed the conviction and modified the sentence to imprisonment till the rising of the court and a fine of Rs.3,20,000/- with a default clause for simple imprisonment for two months. This Court further directed that in the event of realisation of the fine, the entire amount shall be given to the complainant as compensation under Section 357 (1) (b) Cr.P.C. The petitioner was granted time till 5.5.2015 to pay the amount.
4. It is not disputed that the petitioner did not pay the amount. However, the learned counsel for the petitioner has submitted that the petitioner had already undergone the default sentence and in the said circumstances, the recovery ordered by the court below cannot be sustained.
5. Proviso to Section 421 Cr.P.C. provides that, if W.P.(C) No. 2987 of 2016 -3- 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 warrant for the recovery of the fine 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 Cr.P.C. It is clear from proviso to Section 421 Cr.P.C that the warrant can be issued for the recovery of the fine if the court has made an order for the payment of expenses or compensation, even if the accused had undergone the whole of default sentence.
6. In this case, the compensation was ordered by the Court as per Ext.P5 order. Therefore, the court below was justified in issuing Exts.P3 and P4 distress warrant to recover the amount of fine. In the said circumstances, W.P.(C) No. 2987 of 2016 -4- I find no reason to interfere with Exts.P3 and P4 orders passed by the court below. Pursuant to Exts.P3 and P4 orders, the second respondent issued Ext.P1 demand notice and Ext.P2 attachment order. Since Exts.P1 and P2 were issued on the basis of Exts.P3 and P4 orders issued by the court below for the recovery of the compensation amount as directed by this Court as per Ext.P5 order, Exts.P1 and P2 cannot be said to be illegal, improper or incorrect, warranting interference by this Court.
In the result, this writ petition stands dismissed.
Sd/-
B. SUDHEENDRA KUMAR JUDGE Scl/26.02.18