Whether complainant can seek compensation in cheque dishonour case even though accused has undergone default sentence?

The proviso shows that if the accused has undergone sentence of imprisonment in default, then before passing order under section 421 Cr. P.C. special reasons are required to be recorded by the Criminal Court in writing to show that it has become necessary to take steps for recovery of the compensation/fine amount. Thus, no right as such is given to the complainant who was entitled to recover the compensation amount by using procedure given under section 421 of Cr. P.C., if the accused has undergone sentence in default. In the present case, there was a cheque of Rs. 34,000/-. The High Court convicted the accused with imprisonment of 7 days and he was directed to pay compensation of Rs. 34,000/-. In default of payment of compensation, the accused was to undergo simple imprisonment for a period of 3 months. Accordingly, the accused has undergone the substantive sentence and also the imprisonment in default of the payment of compensation. In view of the spirit behind the provision of section 421 of Cr. P.C. and the fact that the Court is expected to give special reasons in such a case, for starting of the proceeding for recovery under section 421, this Court holds that the learned J.M.F.C. has not committed any error in rejecting the application made by the complainant.

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)

Criminal Writ Petition Nos. 42 & 43 of 2012

Decided On: 05.02.2014

Appellants: Milagres Sales Coutinho
Vs.
Respondent: Shivaji P. Gawande

Hon'ble Judges/Coram:T.V. Nalawade, J.

Citation;Citation: 2014(2)BomCR(Cri)643,2014 ALLMR(CRI) 2995

1. Both the matters are being decided together as they have arisen out of the same proceeding viz. Private Complaint filed by the petitioner for offence punishable under section 138 of the Negotiable Instruments Act. The case was bearing Criminal Case No. 783/NI/2003/Addl. III, Margao, which was pending in the Court of J.M.F.C. Margao. The learned JMFC acquitted the accused and the matter was taken to High Court and in Criminal Appeal No. 16/2006, the High Court convicted the respondent. The sentence of imprisonment of 7 days was given and the compensation of Rs. 34,000/- was awarded in favour of the complainant. In default of payment of compensation, the sentence of imprisonment of 3 months was given. The respondent/accused has undergone the substantive sentence and also the sentence given in default of payment of compensation. The original complainant filed application No. 32-D in the aforesaid criminal case in the year 2010 and he requested the Court to take steps for recovery of the compensation amount. He also filed application under section 340 of Cr. P.C. which was given No. 59-D. In this application, the complainant contended that the accused had produced another person in place of the person who was to be examined as witness and that way, by impersonation the offence of perjury has been committed by the accused.

2. After hearing both sides, the learned J.M.F.C. has rejected both the applications. In the first proceeding, the learned J.M.F.C. has observed that as the accused has undergone sentence in default of payment of compensation, it is not desirable to make the order of recovery of the amount as provided in section 421 of Cr. P.C. The second proceeding is dismissed by observing that there is no need to take such steps, in view of the fact that the accused is convicted and he has undergone the sentence.

3. The learned Counsel for the complainant/petitioner is heard in both the proceedings. The other side did not turn up. The learned Counsel placed reliance on two reported cases like (i) MANU/SC/0520/2012 : 2012(3) Bom. C.R. (Cri.) 307 (S.C.) : (2012)8 S.C.C. 721 (R. Mohan Vs. A.K. Vijaya Kumar), and (ii) MANU/SC/0373/2010 : (2010)6 S.C.C. 230 (K.A. Abbas H.S.A. Vs. Sabu Joseph and another).

4. This Court has gone through the observations made in both the matters by the Apex Court. In these cases the Apex Court has discussed the provisions of section 64 of I.P.C. and sections 421 and 431 of Cr. P.C. The Apex Court has interpreted these provisions and has laid down that the compensation made be payable under section 357(3) of Cr. P.C. needs to be treated at par with the fine amount. It is further laid down that if the compensation is not paid, imprisonment in default of payment of compensation can be given in view of these provisions. The Apex Court has observed that the mode of recovery given in section 421 Cr. P.C. can be followed in such a case. The Apex Court has also observed that the provision is made in favour of the complainant for enabling him to recover the compensation.

5. This Court has carefully gone through the provision of section 421 of Cr. P.C. The proviso to section 421 runs as under:

(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 movable 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 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, 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.

(2) The State Government may make rules regulating the manner In which warrants under Clause (a) of sub-section (1) are to be executed. and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1). the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

6. The proviso shows that if the accused has undergone sentence of imprisonment in default, then before passing order under section 421 Cr. P.C. special reasons are required to be recorded by the Criminal Court in writing to show that it has become necessary to take steps for recovery of the compensation/fine amount. Thus, no right as such is given to the complainant who was entitled to recover the compensation amount by using procedure given under section 421 of Cr. P.C., if the accused has undergone sentence in default. In the present case, there was a cheque of Rs. 34,000/-. The High Court convicted the accused with imprisonment of 7 days and he was directed to pay compensation of Rs. 34,000/-. In default of payment of compensation, the accused was to undergo simple imprisonment for a period of 3 months. Accordingly, the accused has undergone the substantive sentence and also the imprisonment in default of the payment of compensation. In view of the spirit behind the provision of section 421 of Cr. P.C. and the fact that the Court is expected to give special reasons in such a case, for starting of the proceeding for recovery under section 421, this Court holds that the learned J.M.F.C. has not committed any error in rejecting the application made by the complainant. As there was such power with the learned J.M.F.C. this Court holds that it is not desirable to use extra ordinary jurisdiction. So far as the second proceeding is concerned, it can be said that conviction was given by this Court and not by J.M.F.C. It was not brought to the notice of this Court and no submission was made in this Court during arguments advanced in the appeal with regard to the contention which was subsequently made before the J.M.F.C. in respect of perjury. In any case, if the provision of section 340 of Cr. P.C. is considered, it can be said that under this section also, it is up to the Court to decide as to whether the action needs to be taken. Only if the Court finds that it is just and proper, the Court can take such action. Learned J.M.F.C. has observed that as the accused is convicted by High Court and he has undergone aforesaid sentence, it is not desirable to start the proceeding under section 340 of Cr. P.C. This order is also challenged in the writ petition. The learned J.M.F.C. had discretion either to proceed or not to proceed against such person. The learned J.M.F.C. has observed that it is not necessary to proceed in respect of allegation of perjury. This Court holds that it is not desirable to use extra ordinary jurisdiction in this matter also. In the result both the petitions are dismissed.

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