Gujarat High Court
Bhadhreshbhai Babulal Vaja Lh Of Late ... vs State Of Gujarat on 6 December, 2023
NEUTRAL CITATION
R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 15679 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHADHRESHBHAI BABULAL VAJA LH OF LATE BABUBHAI KUBERLAL
VAJA
Versus
STATE OF GUJARAT
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Appearance:
MR SURESH D SHASTRI(3535) for the Applicant(s) No. 1,2
MR NISARG D SHAH(7299) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2,3
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/12/2023
ORAL JUDGMENT
[1.0] By way of present petition under Articles 14, 21, 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for the following reliefs:
"(b) Your Lordship may be pleased to issue writ of certiorari by quashing and setting aside the orders passed Page 1 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023 NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined in Criminal Revision Application No.164 of 2022 passed by the learned Sessions Judge, Bhavnagar vide order dated 17.10.2023 and thereby rejecting the application and confirming the order passed on 21.10.2022 in Criminal Misc. Application No.218 of 2015 by the learned 4th Additional Chief Judicial Magistrate, Bhavnagar at Annexure-A Colly as well as notice dated 17.11.2023 at Annexure-B in the interest of justice;"
[2.0] It is the case of the petitioners that the parents of the petitioners were original accused in Criminal Case No.2629/2008 filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") filed by respondent Nos.2 and 3 herein - original complainants before the Court of learned 4th Additional Chief Judicial Magistrate, Bhavnagar on 02.05.2008. After recording the evidence, the learned Magistrate on 19.05.2014 has been pleased to convict the parents of the petitioners and sentenced them to undergo simple imprisonment for a 9 months with fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month and has further ordered the parents of the petitioners - original accused to pay compensation under Section 357(3) of the CrPC of Rs.3,15,000/- to the respondent Nos.2 and 3 herein - original complainants and in default of payment of compensation, he has to further undergo simple imprisonment of 4 months.
[2.1] Being aggrieved and dissatisfied with the said judgment of conviction and sentence, father of the petitioners - original accused filed Criminal Appeal No.49 of 2014 before the Court of learned Sessions Judge, Bhavnagar however, during the pendency of the appeal, original accused - father of petitioners Page 2 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023 NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined viz. Babulal Kuberdas Vaja expired on 10.03.2015 and in absence of any application under Section 394 of the CrPC from the legal heirs of the deceased accused to continue the appeal, the said criminal appeal was abated by the learned Sessions Judge on 27.03.2015.
[2.2] It is pertinent to note that during the pendency of the Criminal Case No.2629/2008, mother of present petitioners i.e. original accused No.2 viz. Neelaben Babulal Vaja, who also expired on 15.02.2010 and the complaint against her also stood abated and her name was deleted by passing an order below Exh.6 by the learned JMFC.
[2.3] As the original accused expired and appeal was abated, in absence of any application under Section 394 of the CrPC to continue an appeal or any challenge given to the order of abatement dated 27.03.2015 and hence, the conviction order passed by the learned Magistrate convicting the original accused i.e. parents of petitioners has attained finality. Hence, since appeal was abated - original complainants preferred Criminal Misc. Application No.218 of 2015 under Section 421 read with Section 431 of the CrPC against the legal heirs of the original accused i.e. present petitioners. As the petitioners failed to do so within the prescribed time limit and appeal was abated. The complainants have filed the proceedings under Section 357(3) of the CrPC to recover the amount of compensation as awarded by the learned trial Court from the properties of the deceased accused for which the respondent Nos.2 and 3 had initiated proceedings to attach the property of the deceased accused.
Page 3 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined [2.4] Learned Magistrate after considering the application filed under Section 421 read with Section 431 of the CrPC was pleased to allow the said application and directed the Collector, Bhavnagar to execute the order (i.e. for recovery of amount of compensation) passed by the learned Magistrate in Criminal Case No.2629/2008. The said order came to be challenged before the learned Sessions Court by way of Criminal Revision Application No.164 of 2022 and the learned Sessions Judge, Bhavnagar has been pleased to dismiss the said revision application and confirmed the order passed by the learned Magistrate.
Hence, the present petition.
[3.0] Now, coming back to the facts of the present case, it appears that it is an undisputed and admitted fact that (i) the father of the petitioners was convicted on 19.05.2014 in Criminal Case No.2629/2008 and order to award the compensation was passed in favor of the original complainants; (ii) the present petitioners are the legal heirs of deceased accused; (iii) original accused who had assailed the order of conviction by way of filing Criminal Appeal and during the pendency of the criminal appeal and he expired during the pendency of appeal, as original accused expired, the conviction appeal being No.49/2014 stood abated and neither present petitioners have not preferred any application to continue the proceedings of conviction appeal nor challenged the order of abatement of appeal uptill now and thus, the order of conviction attained the finality and till date, the said order is in force.
[3.1] Now, since the original accused i.e. parents of the petitioners have already expired, respondent Nos.2 and 3 herein Page 4 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023 NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined have filed the proceedings under Sections 421 read with Section 431 of the CrPC to recovery the amount of compensation as awarded by the learned Magistrate. The sections 421 and 431 of the CrPC read as follows:
"Section 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 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:
Page 5 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
Section 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, E.- Suspension, remission and commutation of sentences;"
[3.2] At this stage, decision of Hon'ble Supreme Court in the case of Kumaran vs. State of Kerala and Another reported in AIR 2017 SC 2433 is required to be referred to. In the said decision, it has been held that in case of conviction for the offence under the provisions of the NI Act where sentence of imprisonment with compensation is imposed, if default sentence for non-payment of compensation is undergone by accused, the compensation would still be recoverable in manner provided in Section 421(1) of the CrPC. The Hon'ble Supreme Court in paragraph 25 of the said decision has observed and held as under:
"25. At this juncture, it is important to note that in Vijayan v. Sadanandan K. (2009) 6 SCC 652, this Court held :
"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-Page 6 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023
NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined 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."
[3.3] Considering the aforesaid position of law, the amount of compensation is recoverable under Section 431. Herein, it is an admitted fact that the original accused have not discharged their liability and paid any amount of compensation which is required to be recovered from the property of the accused which after the death of accused persons would come in the hands of present petitioners in the capacity of legal heirs or legal representatives Page 7 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023 NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined and present petitioners are liable for the debt of the original accused and to make the payment of compensation being heirs of an accused and amount which is recoverable from the property of convict accused. Hence, proceeding under Section 154 of the Bombay Land Revenue Code came to be initiated and notice issued in the said proceeding is annexed at Annexure-B to the present petition. Both the Courts below have not committed any error in holding that proceeding initiated under the Bombay Land Revenue Code is permissible. Considering provisions of sections 421 read with Section 431 of the CrPC, as present petitioners have failed to continue the appeal within prescribed time limit and after passage of long 7 years post-abatement of the appeal, respondent Nos.2 and 3 have initiated the proceedings to recover the amount of compensation and only on that ground, present petition does not deserve consideration and is required to be dismissed.
[3.4] However, before parting with the present judgment, one more aspect which is required to be considered is that pursuant to the order passed by the learned trial Court, the City Mamlatdar, Bhavnagar issued notice dated 17.11.2023 to the present petitioners for attachment of the property under the Debts Recovery Act, 1890 and Recovery Certificate is issued under the Bombay Land Revenue Code after issuing notice under Section 152 of the Bombay Land Revenue Code but the petitioners did not file any reply to the said notice and hence, the order of attachment dated 17.11.2023 is passed. Perusing the notice it appears that the total amount of compensation is stated Rs.3,25,000/- including the amount of fine of Rs.10,000/- but perusing the record and certified copy of the conviction Page 8 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023 NEUTRAL CITATION R/SCR.A/15679/2023 JUDGMENT DATED: 06/12/2023 undefined order dated 19.05.2014, it appears that vide receipt No.124 fine of Rs.10,000/- is received by the Superintendent, 4th Additional Chief Judicial Magistrate, Bhavnagar. Once the amount of fine is paid by the deceased accused, question to recover the said amount by attaching the property of the deceased accused does not arise once again. The said amount of fine cannot be considered as due and recoverable under the impugned proceedings and therefore is not required to be deducted.
[3.5] Considering the aforesaid settled proposition of law, the impugned orders are not interfered with especially when after abatement of appeal, no proceedings within prescribed time limit has been initiated by the present petitioners till date to revive or recall the order of abatement or continuation of criminal appeal by the legal heirs of the original accused - present petitioners. However, it is clarified that recovery proceedings are permissible to the extent of the property of the deceased accused which has now come to the hands of the legal heirs of the deceased accused i.e. the present petitioners [4.0] In wake of aforesaid discussion, present petition stands dismissed.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 9 of 9 Downloaded on : Thu Dec 07 20:42:49 IST 2023