O.P (Crl.). No. 438 of 2017

15th November, 2017.

Petitioner Counsel: Smt. M.U. VIJAYALAKSHMI, Shri BRIJESH MOHAN
Respondent Counsel: Shri SAIGI JACOB PALATTY

Cases Cited:
Kumaran Vs. State of Kerala, 2017 ALL MR (Cri) 2641 (S.C.)=(2017) 7 SCC 471 : AIR 2017 SCC 2433 [Para 10,11]
State Vs. Krishna Pillai, AIR 1953 T.C. 233 [Para 13]
Mehtab Singh Vs. State of U.P., (1979) 4 SCC 597 [Para 14]

JUDGMENT

JUDGMENT :- The prayers in this O.P(Crl.) filed by the petitioner under the enabling provisions contained in Art.227 of the Constitution of India are as follows:

"i) Call for the records leading to Ext.P-1 to P-3 and P7 of the Chief Judicial Magistrate Court, Kasargod and set aside the order for issuance of DW as also N.B.W. if any against the petitioner in execution of the substantive or default sentence imposed him as per Ext.P-1 judgment which he has already suffered.

ii) Declare that the petitioner is not liable to suffer any further sentence as ordered in Ext.P-1 judgment by way of imprisonment or fine.

iii) issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;"

2. Heard Sri.Brijesh Mohan, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondents 1 to 4 (State authorities).

3. The petitioner herein was convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act as per Ext.P-1 judgment dated 6.2.1998 rendered by the Chief Judicial Magistrate's Court, Kasargod, in C.C.No.270/1996 and he was sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.5,50,000/- and in default thereof, to undergo simple imprisonment for a further period of 3 months. Out of the said fine amount of Rs. 5,50,000/-, Rs.5 lakhs was directed to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. The said conviction and sentence imposed by the trial court was affirmed by the appellate Sessions Court and thereafter, the petitioner had taken up the matter in revision by filing Crl.R.P.No.384/2000. This Court as per Ext.P-2 order rendered on 26.10.2007, had confirmed the said conviction and modified the substantive sentence of imprisonment for 3 months by reducing the same till the raising of the court and had directed the petitioner to pay compensation of Rs.5,50,000/- directly to the complainant and in default thereof, to suffer simple imprisonment for 3 months. It is clear from Ext.P-3 order dated 13.2.2009 passed by the trial court concerned that as a matter of fact, the petitioner had undergone simple imprisonment for the period from 6.9.2003 till 6.2.2004 (5 months) in execution of the impugned sentence. It was only later that this Court had rendered Ext.P-2 revisional order dated 26.10.2007 directing reduction of the substantive sentence to imprisonment till rising of the court, wherein also, the default sentence for simple imprisonment was for 3 months. It is the case of the petitioner that due to his financial difficulties, he was not in a position to pay the compensation amount of Rs.5,50,000/- to the complainant. In view of the directions issued by this Court in Ext.P-2 revisional order dated 26.10.2007, the petitioner was to suffer substantive sentence of imprisonment till the rising of the court as well as the default sentence for 3 months' simple imprisonment. But by the time, when Ext.P- 2 revisional order was rendered, the petitioner had already suffered simple imprisonment for 5 months for the abovesaid period from 6.9.2003 to 6.2.2004, as can be seen from a mere perusal of Ext.P-3 order passed by the trial court. Therefore, there is no question of the petitioner being made to suffer any further substantive sentence or default sentence on account of non-payment of compensation amount in respect of the present complaint.

4. It is also an admitted fact that the complainant in this case had died and, neither the complainant nor the legal representatives of the deceased original complainant have made any application before the trial court for recovery of the amount of Rs.5,50,000/- due, by way of payment of compensation on the part of the petitioner. The grievance of the petitioner is that the trial court had subsequently taken up steps for execution of the impugned sentence and had issued, not only distress warrant for recovery of the compensation amount but had also issued non-bailable warrant against the petitioner, even though the petitioner had suffered more than the required substantive sentence and default sentence, in terms of Ext.P-2 revisional order passed by this Court. The action taken by the trial court in issuing non-bailable warrant against the petitioner even after he had suffered the sentence for the abovesaid period, was thus clearly illegal and ultra vires. The trial court realising its mistake, in issuing nonbailable warrant against the petitioner had later recalled the non-bailable warrant. But later it appears that non-bailable warrant was again issued against the petitioner and as per the present report filed by the trial court, the said non-bailable warrant was erroneously issued and the same has been already recalled, etc.

5. In the light of the abovesaid aspects and taking into consideration the report in that regard submitted by the trial court, it is only to be ordered that the action taken by the trial court in issuing nonbailable warrant against the petitioner in respect of the present case even after he has suffered the sentence for the abovesaid period from 6.9.2003 to 6.2.2004 is clearly illegal and ultra vires. As the trial court has recalled the said N.B.W. proceedings, no separate directions are necessary, except to direct the trial court to ensure that the non-bailable warrant is not issued against the petitioner in respect of the present case, as he has already suffered the requisite sentence.

6. The subsisting grievance of the petitioner is that neither the original complainant during his life time, nor his legal representatives have at any point of time, had filed any application before the trial court for issuance of distress warrant so as to proceed against the properties of the petitioner to recover the compensation amount of Rs.5,50,000/- and that since what has been imposed by this Court as per Ext.P-2 is compensation of Rs.5,50,000/- as per Sec. 357(3) of the Cr.P.C. and not a fine amount, the trial court is not having power to take steps for issuance of distress warrant so as to recover the said compensation amount from the assets of the petitioner, more particularly because the deceased complainant or his legal representatives have not till date filed any application before the trial court for recovery of the said amount. From a reading of Ext.P-7 proceedings sheet of the trial court it can be seen that distress warrant has been issued against the petitioner for recovery of the abovesaid compensation amount. It is not in dispute that till date the petitioner has not paid the compensation amount of Rs. 5,50,000/- to the complainant or to the legal representatives of the deceased complainant. So the issue to be decided is as to whether the trial court is having power to order issuance of distress warrant for recovery of the compensation amount granted as per Sec. 357(3) of the Cr.P.C. in a case where the complainant or his legal representatives have not filed any application in that regard before the trial court.

7. Sec.25 of the General Clauses Act, 1897 (Central Act 10 of 1897), dealing with recovery of fine, provides as follows:

"Sec.25: Recovery of fines.- Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the Code of Criminal Procedure 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 provision to the contrary."

Hence by the mandate contained in Sec.25 of the General Clauses Act, the provisions contained in Secs.63 to 70 of the Indian Penal Code would be applicable in the case of execution of warrants for the levy of fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule, or bye-law contains an express provision to the contrary. The offence in question involved in this case is created by a special enactment (viz., Negotiable Instruments Act). There are no provisions in the Negotiable Instruments Act, which regulates the manner and methodology for recovery of fines, etc. Therefore, going by the mandate of Sec.25 of the General Clauses Act, the provisions contained in Secs.63 to 70 of the Indian Penal Code will also regulate the matters regarding the recovery of fine, etc. in respect of offence punishable under Sec. 138 of the N.I. Act.

8. Secs.64, 68 and 70 of the Indian Penal Code, read as follows:

Sec. 64:

"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.68:

"Sec.68. Imprisonment to terminate on payment of fine.- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law."

Sec.70:

"Sec.70. Fine leviable within six years, or during imprisonment - Death not to discharge property from liability.- The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts."

9. Sec.357(3), Sec. 421, and Sec. 431 of the Code of Criminal Procedure, 1973, provide as follows:

Sec. 357(3):

"Sec.357: Order to pay compensation: (1)...

xxx xxx xxx

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."

Sec. 421:

"Sec. 421. Warrant for levy of fine.- (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 moveable property belonging to 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."

Sec. 431:

'Sec. 431: Money ordered to be paid recoverable as a fine.- Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs under Section 359" had been inserted.'

Sec. 386(1) of the (Old) Cr.P.C., 1898 provides as follows:

"Sec.386.Warrant for levy of fine:-(1) Whenever 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 by execution according to civil process against 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 to do so."

10. The matter in issue involved in this case is fully covered against the petitioner by virtue of the dictum laid down by the Apex Court in the decision in Kumaran v. State of Kerala, reported in (2017) 7 SCC 471 = AIR 2017 SCC 2433 : [2017 ALL MR (Cri) 2641 (S.C.)]. It has been held by their Lordships of the Supreme Court in Kumaran's case [2017 ALL MR (Cri) 2641 (S.C.)] supra that in case the accused is convicted for offence under Sec.138 of the Negotiable Instruments Act and sentence of imprisonment with compensation is imposed and there is a default sentence clause for non-payment of compensation and even if the accused has undergone the default sentence, the compensation could still be recoverable in the manner provided in Sec.421(1) of the Cr.P.C., 1973 and that this would be without necessity for recording of any special reasons, as provided in Sec.386(1) of the old Code. Sec.421 deals with warrant for levy of fine. Sec.431 deals with money ordered to be paid, recoverable as fine and deals with the situation where any money other than a fine payable by virtue of any order made under the Cr.P.C. and the method of recovery of which is not otherwise expressly provided for, then the same shall be recoverable as if it were a fine. Construing the abovesaid deeming provision, it was held by the Apex Court in Kumaran's case [2017 ALL MR (Cri) 2641 (S.C.)] supra that the deeming provision in Sec.431 of the Cr.P.C. will be applicable to Sec.421(1) as well and despite the fact that last proviso to Sec.421(1) makes a reference only to an order for payment of expenses or compensation out of fine, which would necessarily refer only to Sec. 357(1) and not Sec.357(3) of the Cr.P.C. Despite this being so, so long as compensation has been directed to be paid, albeit under Sec. 357(3), Sec. 431 of the Cr.P.C. Sec. 70 I.P.C. and Sec. 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided in Sec.421 (1) of the Cr.P.C. That this would be without any necessity for recording any special reasons. This is because Sec.421(1) proviso contains disjunctive "or" following the recommendations of the Law Commission, that proviso to old Sec. 386(1) should not be a bar to issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. That the last part inserted into proviso to Sec.421(1) Cr.P.C. as a result of the abovesaid recommendation of the Law Commission is category by itself which applies to compensation payable out of a fine under Sec. 357(1) and by applying the fiction contained in Sec.431, to compensation payable under Sec. 357(3).

11. It will be profitable to refer paras 23 to 30 of the aforecited decision of the Apex Court in Kumaran's case supra, reported in AIR 2017 SC 2433 : [2017 ALL MR (Cri) 2641 (S.C.)], p.p.2440-2443, which read as follows:

'23. A conspectus of the aforesaid judgments would show that compensation under the old CrPC was always recoverable as a part of fine, and that even after default imprisonment having been undergone, a fine could still be collected in the manner provided by Section 386. The requirement of special reasons was introduced by the amending Act of 1923. The special reasons outlined in the Bombay High Court judgment of 1934 as well as in the Mysore High Court judgment9 of 1963 would show that it is enough that sufficient reasons or some good reason be given in order that fine be realised even after default imprisonment has been undergone. The Courts held that despite the fact that the reach of Section 386(1) proviso was only qua warrants that issued after default imprisonment was undergone, yet, the principle of the proviso to Section 386(1) would apply even to warrants issued before default imprisonment was undergone. The law, therefore, till the enactment of the 1973 Code, made it clear that Section 386 CrPC and Section 70 IPC read together would lead to the conclusion that fines were recoverable even after default imprisonment was undergone, provided there were special reasons for recovery of the same. With the Code of 1973 came an interesting change. Sub-section (3) was added to Section 357, which was an entirely new provision making it clear that the court may, when passing judgment, order the accused to pay by way of compensation such amount as may be specified in the order to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. This is provided that the court imposes a sentence of which fine does not form a part. Another important change was made in Section 421(1). The proviso to the said sub-section was altered because the 41st Law Commission Report, in recommending amendments to the old Section 386 stated, after noticing the Bombay High Court judgment in Digambar case (AIR 1935 Bom. 160) as follows:

"28.10. Fine should be recoverable when compensation has been ordered.-We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under Section 545 has been passed for payment of expenses or compensation out of the fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to Section 386(1) should make this clear."

24. Following Para 28.10, the words "or unless it made an order for the payment of expenses or compensation out of the fine under Section 357" was added to the proviso which was contained in old Section 386(1) and continued in Section 421(1).

25. At this juncture, it is important to note that in Vijayan v. Sadanandan K. [(2009) 6 SCC 652: (AIR 2009 SC (supp) 1435), this Court held: (SCC p. 659, paras 29-31)

"29. To appreciate the said legal position, the provisions of Section 431 are set out hereinbelow:

'431. Money ordered to be paid recoverable as fine.-Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs under Section 359" had been inserted.'

Section 431 makes it clear that any money other than a fine payable on account of an order passed under the Code shall be recoverable as if it were a fine which takes us to Section 64 IPC.

30. Section 64 IPC makes it clear that while imposing a sentence of fine, the court would be competent to include a default sentence to ensure payment of the same. For the sake of reference, Section 64 IPC is set out hereinbelow:

'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, 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.'

31. The provisions of Sections 357(3) and 431 CrPC, when read with Section 64 IPC, empower the court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same." (emphasis in original)

26. This statement of the law was reiterated in R. Mohan v. A.K. Vijaya Kumar (2012) 8 SCC 742 (see pages 26 to 29): (AIR 2012 SC (Supp) 771, (Paras 15 to 18).

27. These two judgments make it clear that the deeming fiction of Section 431 CrPC extends not only to Section 421, but also to Section 64 of the Penal Code. This being the case, Section 70 IPC, which is the last in the group of sections dealing with sentence of imprisonment for non-payment of fine must also be included as applying directly to compensation under Section 357(3) as well. The position in law now becomes clear. The deeming provision in Section 431 will apply to Section 421(1) as well, despite the fact that the last part of the proviso to Section 421(1) makes a reference only to an order for payment of expenses or compensation out of a fine, which would necessarily refer only to Section 357(1) and not Section 357(3). Despite this being so, so long as compensation has been directed to be paid, albeit under Section 357(3), Section 431, Section 70 IPC and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1). This would, however, be without the necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357(3).

28. As is well known, a legal fiction is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. For example, see Prakash H. Jain v. Marie Fernandes [2003) 8 SCC 431 at 438: (AIR 2003 SC 4591 at P.4595). However, once the purpose of the legal fiction is ascertained, full effect must be given, and it should be carried to its logical conclusion. This is clear from the celebrated passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1951 (2) All. ER 587 at 589:

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

29. The legal fiction enacted under Section 431 is not limited to "the purpose of this Act" unlike Section 6-A of the Central Sales Tax Act, as was the case in Ashok Leyland Ltd. v. State of T.N.14 Thus it is clear that the object of the legal fiction created by Section 431 is to extend for the purpose of recovery of compensation until such recovery is completed - and this would necessarily take us not only to Section 421 CrPC but also to Section 70 of the Penal Code, a companion criminal statute, as has been held above.

30. This being the case, we uphold the conclusion of the judgment dated 8-8-2012 of the Division Bench of the Kerala High Court but for the reasons given in this judgment. The appeals are dismissed accordingly."

12. Hence, in case like the one involved in the instant case, where the accused has already suffered the default sentence for offence punishable under Sec.138 of the Negotiable Instruments Act and he has not paid the compensation amount payable in terms of Sec.357(3)of the Cr.P.C., then the same is recoverable as if it were a fine in terms of the deeming provision contained in Sec.431(1) of the Cr.P.C., by taking recourse to the procedure for recovery of fine contained in Sec. 421 (1).

13. Sec.70 of the I.P.C. stipulates that fine or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and that if under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period and that the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts. Since the maximum sentence that can be imposed for the offence under Sec.138 of the Negotiable Instruments Act is 2 years, the fine or any part thereof, if remains unpaid may be levied at any point within a period of 6 years after passing of the sentence, going by the provisions contained in Sec.70 of the I.P.C. The Travancore Cochin High Court in the decision State v. Krishna Pillai, reported in AIR 1953 T.C. 233, has held as follows:

"The jurisdiction of the trial court to impose a sentence of imprisonment in default of payment of fine is merely permissive. It is not imperative to award a term of imprisonment in default of payment of a fine. Section 64, Penal Code (S. 53, Travancore Code) only states that it shall be competent to the court to impose a sentence of imprisonment for non-payment of fine. Further, imprisonment in default of payment of fine does not liberate an accused person from his liability to pay the fine imposed on him. Such imprisonment does not serve as a discharge or satisfaction of the fine, but is imposed as a punishment for nonpayment. The fine would remain alive for collection for six years after the passing of the sentence. Assuming the accused counter-petitioner has no means now to pay the same, it can be recovered from any property acquired by him within the period specified. Even his death will not discharge from the liability any property which would, after his death be legally liable for his debts. (Section 70, Penal Code, corresponding to S.59, Travancore Penal Code)."

14. The Apex Court in the decision in Mehtab Singh v. State of U.P. reported in (1979) 4 SCC 597, has held that a bare reading of Sec.389 makes it clear that the appellate court has power to suspend the execution of the sentence or order appealed against and that if sentence or fine is so suspended, it ceases to be in force pro tempore and that the consequence is that during the period of suspension of the sentence of fine, there is no sentence of fine to be levied and that even otherwise, on first principle, it is obvious that when a party has secured a stay of collection of fine, and such period of stay extends over a long stretch and conceivably may even extend beyond six years, he cannot take up the stand that due to the stay he has obtained of the recovery of the fine and the fine itself has become irrecoverable and that the judicial process cannot stultify the judicial orders. It was further held that when a party secures stay against the State and prevents it from levying the fine, it is violative of common sense and law to hold that the fine itself is thereafter irrecoverable because of limitation, etc. It has also been held in para 8 of the aforesaid decision in Mehtab Singh's case supra as follows:

"8. Section 70 says that the State shall levy fine within six years from the date of the sentence. To levy is to realise or to collect. It is clear that what is meant is that within six years the State must commence proceedings for realisation, not complete it. It is beyond the State's power to complete the realisation proceedings, but it is within its power to initiate such proceedings. What is contemplated is that the State shall commence recovery proceedings. Once such steps are taken, the plea of limitation is out of bounds for the sentencee. Section 70 has to be read in a common sense way and, therefore, when the provision speaks of levying fine it postulates that the fine is leviable otherwise. If, however, on account of an order of a higher court, the fine has ceased to be leviable, thanks to the suspension of the levy of the fine, the period of limitation does not start to run under Section 70 of the IPC."

So it is clear that Sec.70 of the I.P.C. lays down that the State should levy fine within six years from the passing of the sentence, etc. and that to levy is to realise or to collect and what is meant is that within six years, the State must commence proceedings for realisation, not necessarily complete it and that it is beyond the State's power to complete the realisation proceedings, but it is within its power to initiate such proceedings and what is contemplated in Sec.70 of the I.P.C. is that the State shall commence the recovery proceedings and once such steps are taken, the plea of limitation is out of bounds for the sentence and Sec.70 of the I.P.C. has to be read in a common sense way and, therefore, when the provision speaks of levying fine, it postulates that the fine is leviable otherwise, etc.

15. In the instant case Ext.P-2 revisional order was passed on 26.10.2007. A perusal of Ext.P-7 proceedings sheet would disclose that distress warrant was issued by the trial court as early as on 13.2.2009. Therefore, the issuance of the distress warrant by the trial court for recovery of the due compensation amount payable by the accused, is legally correct and proper and the trial court has necessary jurisdiction in that regard going by the abovesaid legal position and the action for issuance of distress warrant has been taken within the permissible time limit envisaged in Sec.70 of the I.P.C. In this view of the matter, it is only to be ordered that the trial court is fully justified to take action in that regard as in the instant case, irrespective as to whether the complainant has made an application for recovery of the fine payable as compensation in terms of Sec. 357(1)(b) of the Cr.P.C. or for recovery of compensation amount under Sec. 357(3) of the Cr.P.C. Since the deeming provision as Sec.431 (1) mandates that the said money (other than a fine) could be recovered as if it were a fine, then the trial court will have all the powers to recover the said compensation amount, as if it were a fine. Hence it makes no difference as to whether or not, the complainant or the legal representatives of the deceased complainant have made any formal application before the trial court for issuance of distress warrant for recovery of the unpaid compensation, etc.

16. Now it has been brought to the notice of this Court that the defacto complainant had already died some time ago and that his legal representatives have not approached the trial court for recovery of any unpaid compensation amount. Accordingly, it is ordered that the District Collector, Kasargod, will ensure that a proper and effective inquiry is conducted through the Tahsildar of the area concerned so as to ascertain the names and addresses of the legal representatives of the deceased original complainant (Sri.F.J.Rodrigus, S/o.Joseph Rodrigus, Fort Road, Kasargod). A report in that regard should be submitted by the District Collector/Tahsildar concerned before the trial court concerned (Court of Chief Judicial Magistrate, Kasargod) who is dealing with the distress warrant in C.C.No.270/1996 in order to enable the said court to ensure that the monies recovered are paid to the legal representatives of the deceased complainant. The office of the Advocate General, Kerala will forward a copy of this order to the District Collector, Kasargod. After receiving such report, the trial court will issue necessary notice of intimation to the legal representative/s of the deceased complainant about the pendency of the distress warrant for recovery of the unpaid compensation amount in this case. Accordingly, the following directions and orders are passed:

(i) It is declared that the action taken by the trial court in issuing non-bailable warrant against the petitioner even after he has suffered the full sentence is clearly without jurisdiction and the same is illegal and ultra vires. As the said non-bailable warrant issued previously, has already been recalled by the trial court, there is no necessity to issue order for recalling and rescinding such proceedings. However, it is ordered that the trial court should ensure that nonbailable warrant is not issued in future against the petitioner for execution of the impugned sentence in this case as he has already suffered the full sentence as stated herein above.

(ii) The trial court is having jurisdiction and the competence to proceed further with the distress warrant proceedings so as to recover the unpaid compensation payable by the accused in this case.

(iii) The authorities like the District Collector, Kasargod and the Tahsildar, concerned, etc., should ensure that expeditious and effective steps are taken for recovery of the abovesaid amount payable by the accused.

(iv) The District Collector/Tahsildar concerned should furnish a report regarding the names and addresses of the legal representative/s of the deceased complainant to the trial court. The trial court shall issue notice of intimation to the LRs of the deceased complainant about the pendency of this proceedings for recovery of the unpaid compensation amount in this case.

(v) If monies covered by the compensation amount are recovered from the accused, then the trial court should ensure that the said amounts are disbursed to the legal representative/s of the deceased complainant.

(vi) The District Collector, Tahsildar, etc. should ensure expeditious and early completion of the abovesaid recovery proceedings.

With these observations and directions, the aforecaptioned Original Petition (Criminal) stands finally disposed of.

Ordered accordingly.