Is it “petition allergy", “application phobia” or “motion disgust”?
A learned Judge of the Hon’ble High Court of Kerala has inter alia observed as follows:-
“13. It is noticed that numerous applications are being filed before the High Court and the Sessions Court for enlargement of time for the deposit of fine as the Trial Courts refuse to accept the fine/compensation after the period stipulated by the superior Courts, even after the decision of this Court in Gireesh Vs. Muthoot Capital (supra). It is to be remembered that the default sentence is not punitive, but is only a measure to enforce payment of fine/compensation ordered by the Court. I make it clear that it is illegal, incorrect and unjust to refuse to permit the convict to deposit the fine amount after the date stipulated by the High Court/Sessions Court on the mere reason that no direction for extension has been granted by the High Court/Sessions Court.”
( emphasis is mine )
(Vide Subash Sait Vs. Sree Gokulam Chits and Finance – 2015 (4) KHC 741)
The question posed by the Judge at the commencement of the order is whether the convict can deposit the fine amount after the time stipulated by the High Court or Sessions Court, without any further direction from the High Court or Sessions Court, so as to avoid the default sentence.
The necessary facts
- The applicant before the High Court, was the accused who was convicted by the trial Court of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (“ N.I. Act” for short) It is not clear from the reported decision as to whether the sentence imposed by the lower courts consisted of a substantive sentence of imprisonment. In a criminal revision filed by the convict, a learned Single Judge of the High Court confirmed the conviction but modified the sentence to one of fine (Rs. 1,88,000/-) with a default sentence of simple imprisonment for 3 months. It was also directed that the fine amount as and when realised should be given to the complainant under Section 357(1) Cr.P.C. The convict was also given the option either to deposit the fine amount before the trial Court or to directly pay the compensation amount to the complainant within six months of the order. In the event of direct payment, the convict was ordered to produce a memo (voucher) before the trial Court. The convict did not deposit or pay the amount within the time granted by the High Court and, therefore, he got an extension of time from the High Court. Even within the extended period he did not deposit or pay the amount. Subsequently he made direct payment, and that too, in instalments to the complainant without any permission from the High Court. ( It is not known whether the acceptance by the complainant of the instalment payments was with full knowledge of the time limit fixed by the High Court because, the order extending time was evidently passed in the absence of the complainant. Even the reported decision has been rendered behind the back of the complainant and the counsel who was heard on the opposite side was the learned Public Prosecutor). After belatedly effecting payments to the complainant, the convict reported the matter before the trial Court, evidently to avert action for enforcement of the default sentence. But the trial Court was not inclined to accept the payment which was not within the period stipulated by the High Court. The trial Court accordingly initiated coercive steps for recovery of the fine or for enforcement of the default sentence. It was under these circumstances that the convict approached the High Court for further extension of time. The learned Judge not only dismissed the application but also directed that the payment effected by the convict was to be treated as one made in compliance of the direction of the High Court. The Registry of the High Court was directed to communicate the order to all the Sessions Judges who in turn were directed circulate the order among all the judicial officers under them.
WHY THIS RESPONSE?
- The order passed by the learned Single Judge virtually amounts to a command to the lower Courts to ignore or even flout the time–bound directions issued by superior Courts. The above order has overlooked certain practical aspects of the sentencing discretion exercised by the superior Courts.
- Prosecutions under Section 138 of the Negotiable Instruments Act are never considered to be as serious as prosecutions for offences under I.P.C. or other penal statutes. That is presumably why the appellate or revisional Courts while confirming the convictions under the Negotiable Instruments Act, are lenient in the matter of sentence and very often, exempt the convict from the punishment of incarceration. Such sentencing gestures by way of moderation are shown by the appellate or revisional Courts usually behind the back of the complainants on the justification that as long as his share of recompense in the form of adequate compensation is paid to him, he cannot dictate the nature of the punishment to be meted out to the convict. That is the reason why some Judges while granting extension of time to the convict without even sending notice to the complainant, would take care to ensure that the quantum of compensation is enhanced with every extension so that the complainant can have no grievance. But what is important to note is that the purpose of fixing a time–limit by the Court (whether it be the trial Court or appellate Court or revisional Court) is to ensure that if the convict does not adhere to the same he should then forfeit the judicial indulgence shown to him. This is because, ordinarily, the fine payable under a sentence of fine, is to be paid forthwith. (Vide Section 424(1) Cr.P.C.). While under this provision of law, the convicting Court can grant time for a period not more than one month, the said restriction may not be applicable to the High Court. The indulgence by way of enlargement of time, after time was once granted, also can be shown only by the High Court by virtue of its inherent power. (Vide Sreedharan Vs. Bharathan-2014 (1) KLT 236 (DB) But if the convict does not make the payment within the time granted by the High Court, then he forfeits the judicial indulgence shown to him thereby becoming liable to the self-working direction of the sentencing Court that he shall undergo the default sentence. This consequence can be averted by him only by again approaching the High Court for a ratification of the belated payment, if any, made. If he does not do so, he may have to suffer the consequence of facing coercive action for the default sentence. Even in cases where the convict is given the benefit of making direct payment to the complainant within a time-frame, the convict cannot take undue advantage of such benefit by making the payment at his own leisure and beyond the period fixed by the High Court. It may be relevant in this connection to note that the complainant while accepting the payment without any demur, may not even be aware of the enlargement of time granted by the High Court or even the time-limit fixed by the High Court for payment, all done behind his back. One should not forget that an informed complainant can even refuse to accept the belated payment and in such case also the convict will have to undergo the default sentence because any payment effected or attempted to be effected beyond the time-limit fixed by the High Court is no payment at all. The relevance and applicability of Sections 68 and 69 of the Indian Penal Code will arise only when the convict actually undergoes the default sentence which then will have to be terminated upon payment of the fine amount in full or part. The illustration to Section 69 of the Indian Penal Code also envisages a situation in which the convict is actually undergoing imprisonment in default of payment of fine. This aspect of the matter was overlooked in the decision of another learned Judge in Gireesh Vs. Muthoot Capital Service (P) Ltd – 2007(1) KLT 16 which has been relied on in the reported case in question. It is pertinent to note that even if the convict undergoes the full term of default sentence, his liability to pay the fine amount is not wiped off if the Court considers it necessary to issue the warrant for special reasons to be recorded in writing or if it is the very same fine amount which is directed to be paid as compensation to the complainant under Section 357(1) Cr.PC (as in this case). (Vide the proviso to Section 421(1) Cr.PC). Hence Sections 68 and 69 of the Indian Penal Code cannot be an answer to justify the refusal to comply with the time-bound direction in letter and spirit or for bye-passing the High Court. Fixation of time-limit for compliance of the direction for deposit or payment within the extended period, should have some meaning. Otherwise, it may even be possible for a convict to go abroad, mobilise sufficient funds, return to India after a few years and then deposit the amount before the trial Court and avert a default sentence. The complainant also may have to be satisfied with the meagre amount fixed years ago. The High Court was not, in my opinion, right in blaming the lower Court for not accepting the payment which was admittedly made after the expiry of the time-limit fixed by the High Court. The convict in the case on hand was, therefore, justified in again approaching the High Court for extension of time (really it involved a request for ratification of the belated payment). In fact, going by the narration of facts in paragraph 2 of the reported decision, the coercive steps taken was for realisation of the fine amount which the Magistrate was entitled to take under Section 421 Cr.PC (Vide Shine Varghese Vs. State of Kerala – 2008(4) KLT 371. In fact, in R. Mohan Vs. A.K.Vijaya Kumar – (2012) 8 SCC 721, the Apex Court put the default sentence as the common mode for the recovery of fine in a sentence of fine and for the recovery of an order for compensation. This is what the Supreme Court has observed in paragraph 29 of the above verdict:-
“If Section 421 of the Code puts compensation ordered to be paid by the Court on a par with fine so far as the mode of recovery is concerned, then there is no reason why the Court cannot impose a sentence in default of payment of compensation as it can be done in the case of default in payment of fine under Section 64 IPC”.
In my humble view, the learned Judge, went wrong in holding that it was unnecessary for the convict to approach the High Court. By means of the order in question, made “reportable”, the learned judge has blocked all petitions to be filed hereafter for enlargement of time. Is the judicial reluctance attributable to a “pendency phobia” or a “petition allergy”.What was ordered to be communicated to the lower Courts was an illegal direction.
5. Judicial personage of the superior Courts, before finding fault with their brethren at the lower tiers, should be doubly cautious to ensure that the mistakes pointed out are indeed avoidable legal infirmities. This is particularly so in the case of those in the High Court since their orders and verdicts constitute binding precedents for the subordinate judiciary. A good majority of errors are not committed deliberately or in bad faith unless the errant is found to be incorrigible or actuated by ulterior motives. Omnibus directions of a general character for the lower Courts to follow, should be lawful directions consistent with the established procedure. Otherwise, such directions may amount to a command to follow a procedure which is not sanctioned by law.
Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act