Crl. Rev. P. No. 5 of 2017

Transcription

1 Crl. Rev. P. No. 5 of 2017 BEFORE HON BLE MR. JUSTICE MANASH RANJAN PATHAK Heard Mr. Pallab Kataki, learned counsel for the petitioner. Also heard Mr. Nava Kumar Kalita, learned Additional Public Prosecutor, Assam for the respondent No. 1 and Mr. AmritLalMandal, learned counsel for the respondent No In N.I. Case No. 30/2014 preferred by the respondent No. 2 as complainant, the Trial Court, i.e. the Additional Chief Judicial Magistrate, Barpeta by judgment dated convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of 30 (thirty) days and also to pay a fine of Rs. 3,90,000/- only, under Section 138 N.I. Act, in default of payment of fine to undergo simple imprisonment for a period of 30 (thirty) days, observing that the amount already paid by the accused petitioner to the complainant shall be deducted from the total fine amount and the remaining fine amount, if realised, shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. for his loss or injury caused by the offence. 3. Against that conviction, the petitioner preferred an appeal before Sessions Judge, Barpeta with a delay condonation petition. After hearing the parties such delay was condoned and said appeal being Criminal Appeal No. 07 of 2016 was admitted for hearing by the appellate Court. However, in said appeal the petitioner by filing a petition bearing No. 342/2016 admitted his liability to pay the fine amount of Rs. 3,90,000/- after deducting the amount already paid and sought for time to make payment of the fine amount and prayed for setting aside the sentence of imprisonment, to which the respondent No.2/complainant did not object in setting aside the said sentence of imprisonment. 4. After hearing the submissions of both the parties, learned Sessions Judge, Barpeta by judgment dated disposed of said Criminal Appeal No. 07 of 2016 of the petitioner by setting aside the sentence of imprisonment upholding the sentence to pay the fine of Rs.3,90,000/-after deducting the amount which is all to be paid by him to the respondent No. 2. Crl. Rev. P. No. 5 of 2017 Page 1 of 8

2 5. Thereafter both the petitioner and the respondent No.2 appeared before the Additional Chief Judicial Magistrate, Barpeta on for compliance of the order passed by the said Magistrate on in said N.I. Case No. 30/2014. However, the petitioner sought some time to make the necessary payment and accordingly the matter was re-fixed on But the petitioner failed to make the payment as such he was remanded to jail custody till and it was extended twice till , when he was released from jail. 6. As the petitioner failed to pay his liability amounting to Rs.3,25,000/- the respondent No. 2 filed a petition bearing No.6259/2016 before the Addl. CJM, Barpeta and the learned Magistrate on came to the finding that if there is an order for payment of compensation out of fine under Section 357 Cr.P.C., even the fact of undergoing the defaulting sentence does not absolve the liabilities of the convict to pay the amount due as provided under Section 421 Cr.P.C. and considering all the aspects, called for a report from the Drawing and Disbursing Officer (DDO) of the petitioner about his salary and status. The concerned DDO (the Commandant of First Assam Forest Protection Force, Basistha, Guwahati) in his report submitted before the Magistrate that the petitioner draws salary of Rs. 23,342/- per month. Finding the same, the Addl. CJM, Barpeta by his Order dated passed in said N.I. Case No. 30/2014 directed the said DDO to deduct Rs.15,000/- per month from the salary of the petitioner and to credit the said amount in favour of the bank Account of the respondent No. 2/complainant, until the recovery of the said amount Rs.3,25,000/- from the convict petitioner observing further that the DDO shall submit his compliance report before the Court forthwith. 7. Being aggrieved with the said order dated and all the subsequent orders, including the order dated , passed by the Addl. CJM, Barpeta in said N.I. Case No. 30/2014, the petitioner has preferred this revision petition. 8. Mr. Kataki on behalf of the petitioner contended that the Magistrate have passed the impugned order without any jurisdiction and without affording any opportunity of hearing to the petitioner. He further contended that salary account of the petitioner may be movable property, but it is not liable for attachment and sale and that the Court is not empowered under Section 421(a) Cr.P.C. to issue warrant for attachment and sale of any property, like the salary, the monetary Crl. Rev. P. No. 5 of 2017 Page 2 of 8

3 benefits of the petitioner, in the present case. It is also stated by him that the Magistrate is not empowered to attach future salary of the petitioner, since it cannot be considered to be a movable property, as it doesn t come into his hand. 9. As such, it is submitted that the impugned order dated and all subsequent orders, passed by learned Addl. CJM, Barpeta in said N.I. Case No. 30/2014, being bad in law, should be set aside and quashed. 10. In this regard the petitioner relied upon two judgments, one from the Calcutta High Court and other from the Mysore High Court, reported in AIR 1956 Calcutta 135 ( Rajendra Nath Ghose -Vs- Brojabala Ghose) and 1965 (2) Crl. L.J. 293 (The State -Vs- Doraiswamy and others) respectively. 11. On the other hand Mr. Mandal appearing for the respondent No. 2/ complainant submits that Section 421 Cr.P.C. provides for recovery of fine/ compensation from the accused and that where out of fine amount imposed, compensation has been directed to be paid and in the present case, attempts to recover the said amount under the said Section 421 Cr.P.C. has to be continued even after the default sentence is undergone by the offender, as his liability to pay the due amount continues. It is also submitted by Mr. Mandal that the Court has the power to grant compensation under Section 357(3) Cr.P.C. and for recovery of the same it is necessary for imposition of a default sentence and the term of imprisonment in default of payment of fine is not the sentence but the penalty which is imposed upon the offender in case of non-payment of fine where the sentence is something which an offender must undergo, unless it is set aside or admitted in part or in whole either in appeal or in revision or in other appropriate judicial proceeding or otherwise and that in case of default sentences in order of enforcing recovery of the amount imposed by way of compensation. Mr. Mandal further submitted that the order for payment of compensation under Section 357 Cr.P.C. is towards the loss caused due to the offence under Section 138 of the N.I. Act and even if fine is not imposed, the compensation can be directed to be paid under Section 357(3) Cr.P.C. for a loss or injury caused to the complainant by reason of commission of offence under Section 138 of the N.I. Act. 12. In support of the impugned order dated as well as the subsequent orders, including the order dated , passed by the Addl. CJM, Crl. Rev. P. No. 5 of 2017 Page 3 of 8

4 Barpeta in said N.I. Case No. 30/2014, placed the following judgments in favour of the respondent No. 2, which are (2007) 6 SCC 528 (Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and another), (2009) 6 SCC 652 (Vijayan vs. Sadanandan K. and another), (2010) 6 SCC 230 (K.A. Abbas HSA vs. Sabu Joseph & another), 1983 Crl. L.J. 479 (Ahmed Pasha -Vs- WajidUnissa and others) and 2009 Crl.L.J. 309 (Shine Varghese -Vs- State of Karnataka and others). 13. Considered the arguments made by the learned counsels on behalf of their parties and the judgments cited by them in their support. 14. In the present case the petitioner was convicted under Section 138 of the Negotiable Instrument Act and was sentenced to undergo simple imprisonment for a period of 30 (thirty) days and further to pay a fine of Rs.3,90,000/- under Section 138 of the N.I. Act and in default of payment of fine, he was to undergo simple imprisonment for a period of 30 (thirty) days. Before the appellate Court, the petitioner by filing petition agreed to pay the fine amount of Rs.3,90,000/- after deducting the amount already paid, with the prayer to set aside the sentence of his imprisonment. As the petitioner admitted his guilt and agreed to pay the fine amount; accordingly, the appellate Court, i.e. the Court of Sessions Judge, Barpeta by its Judgment dated passed in Criminal Appeal No. 07/2016 disposed of the said appeal by partly allowing the same and modified the Judgment and Order dated passed by the Trial Court, i.e. the Court of Additional Chief Judicial Magistrate, Barpeta in the N.I. Case No. 30/2014 by setting aside the sentence of imprisonment for a period of 30 (thirty) days, but upheld the sentence of payment of fine amount of Rs.3,90,000/-, after deducting the amount already paid and directed both the parties to appear before the Addl. CJM, Barpeta on As the petitioner did not pay the fine amount, in default, the said convict was remanded to the jail custody by the Addl. CJM, Barpeta by his order dated Since the petitioner did not comply with the direction of the trial Court that was upheld by the appellate Court and in spite of his own admission, he did not deposit the said fine amount, in that background the Addl. CJM, Barpeta by order dated passed in said N.I. Case No. 30/2014 directed the DDO of the petitioner to deduct Rs.15,000/- per month from his salary and to credit the Crl. Rev. P. No. 5 of 2017 Page 4 of 8

5 said amount in the account of the respondent No. 2/complainant, until the recovery of said Rs. 3,25,000/- from the convict petitioner. 16. The question involves in this case is as to whether fine imposed in a proceeding under Section 138 of the N.I. Act can be realized by attaching salary/future salary of the convict until the recovery of such fine or not as it is contended on behalf of the petitioner that the future salary is not a tangible corporeal property, within the meaning of the term, available for seizure and the same would not belong to the offender because he could not be said to have earned the same and therefore, there could be no attachment of future salary. 17. Section 421 Cr.P.C. provides for warrant for levy of fine and it reads as 421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence make 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, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both of the defaulters; 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 Section 22 of the IPC defines movable property and it reads as 22. Movable Property. "The words "moveable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth." 19. Movable property is not defined in the Cr.P.C. Section 2 of the Cr.P.C. relates to Definitions and Section 2(y) of the Cr.P.C. provides that 2(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code." 20. But Section 2 of the Cr.P.C. starts as follows: 2. Definitions. In this Code, unless the context otherwise requires, Crl. Rev. P. No. 5 of 2017 Page 5 of 8

6 21. In the present case the context is to recover the sentenced fine amount that was admitted by the convict petitioner and assured to repay the same before the appellate Court by filing petition on the basis of which his sentence of conviction (imprisonment) was set aside in his appeal. 22. The Cr.P.C. being Central Legislation, as such its interpretations would be as per the provisions of the General Clauses Act, 1897, where Section 3 of the said 1897 Act relates to definitions. Sub-Section 26 of Section 3 defines immovable property where sub-section 36 of said Section 3 of the 1897 Act defines 'movable property' and both the sub-sections reads as follows: "3(26) moveable property,shall include land, benefits to arise out of land, and things attached to earth, or permanently fastened to anyting attached to the earth. "3(36) moveable property,shall mean property of every description, except immoveable property". 23. Therefore, as per the provisions of the General Clauses Act, 1897, movable property consists of both the tangible corporeal moveable property as well as the intangible moveable property including assets, debts, right to receive the wages and salary from employer, etc. and the same is applicable in case of Section 421 Cr.P.C. in the context of the present case. 24. It is admitted by the parties that money is a movable property. But only grievance of the petitioner is that the fine amount that has been imposed upon him as a part of the sentence, upheld by the appellate Court cannot be recovered by warrant of attachment from his future salary, as directed by the trial Court by the impugned order since his future salary is not a tangible corporeal property. 25. Hon ble Supreme Court in a Full Bench (Five Judges) decision in the case of Chittarmal -Vs- Shah Pannalal Chandulal, reported in AIR 1965 SC 1440 have held that The expression "property" is not defined in the Code (CPC), but having regard to the use of the expression amount it would apparently include money. 26. Hon ble Supreme Court in another Full Bench (Five Judges) decision in the case of Khem Chand -Vs- Union of India and others, reported in AIR 1963 SC 687 relating to suspension from service under Central Civil Services (Classification, Control and Appeal) Rules, 1957 have held that the right to arrears of pay and Crl. Rev. P. No. 5 of 2017 Page 6 of 8

7 allowances constituted property within the meaning of Art (19)(1)(f) of the Constitution and further, that the effect of R. 12 (4) is a substantial restriction of his right in respect of that property under Art. 19(1) (f). 27. In another Full Bench (Five Judges) decision in the case of Bombay Dyeing and Manufacturing Co. Ltd. -Vs- State of Bombay, reported in AIR 1958 SC 328 with regard to transfer of the debts to the Board, the amounts were required to be paid by the employer to the Board concerned, the Hon ble Supreme Court considered the same to be a too narrow a view of the true scope of the provisions in the said case and looking at the substance of the matter, held that provisions involved in the case do operate to transfer the debts due to the employees, to the Board. 28. It is settled that debts and choses-in-action, is property. In the case of H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur -Vs- Union of India, reported in (1971) 1 SCC 85 the Hon ble Apex Court have held that a debt or a liability to pay money passes through four stages. First there is a debt not yet due. The debt has not yet become a part of the obligor s things because no net liability has yet arisen. The second stage is when the liability may have arisen but is not either ascertained or admitted. Here again the amount due has not become a part of the obligor s things. The third stage is reached when the liability is both ascertained and admitted. Then it is property proper of the debtor in the creditor s hands. The law begins to recognise such property in insolvency, in dealing with it in fraud of creditors, fraudulent preference of one creditor against another, subrogation, equitable estoppel, stoppage intransitu etc. A credit-debt is then a debt fully provable and which is fixed and absolutely owing. The last stage is when the debt becomes a judgment-debt by reason of a decree of a Court. 29. From the perusal of the impugned Order dated passed by the learned Addl. CJM, Barpeta in said N.I. Case No. 30/2014, it can be seen that the warrant for attachment of future salary for recovery of fine amount was passed under clause (a) of Section 421 (1) Cr.P.C. 30. Though future salary may not belong to the petitioner as he cannot be said to have earned the same but, the Court is of the view that the order of recovery of fine from the future salary would become operative at that point when the same accumulates and becomes due to the petitioner to be payable to him by his employer and up to that time the direction given in the impugned attachment order of the petitioner s future salary would remain quiet. Crl. Rev. P. No. 5 of 2017 Page 7 of 8

8 31. In catena of decisions, for the ends of justice, the Hon ble Supreme Court have directed any balance or remains to be adjusted in easy monthly installments from the future salary of incumbents or if the amount of back wages even after setting off any balance of retrenchment compensation still remains, directed to be adjusted by deducting certain percentile from the periodic salary payable to such workman or any payment found due to someone by a service holder, directed to adjust the same from his future salary payable to the said person. 32. For the reasons above, being devoid of merit, this petition is dismissed. JUDGE gunajit Crl. Rev. P. No. 5 of 2017 Page 8 of 8