M.S. Kalyan Kumar vs B. Vanajakshi

K.N. Phaneendra, J.—Heard the learned Counsel for the petitioner and as well as the respondent. Perused the records.

At the admission stage itself the matter is heard on merits. The petitioner approached this Court seeking quashing of the order dated 27.12.2013 passed by the 2nd Additional Civil Judge (Jr. Dvn.) and J.M.F.C., Chikmagalur in Crl. Misc. No. 203/2012 in issuing FLW to the petitioner for recovery of the amount of compensation as awarded by the Court on conviction of the petitioner under Section 138 of Negotiable Instruments Act.

Learned Counsel contended that the Court cannot issue FLW directly to the petitioner without exhausting the remedies available under Section 421 of Code of Criminal Procedure. He also brought to my notice that once the accused was arrested and he was sent to judicial custody and thereafter, FLW was recalled and release intimation was issued to the Jail Authorities for release of the petitioner. In support of his contention he has produced the order sheet dated 14.07.2014 before this Court today. I have carefully perused the same, which discloses that the accused/petitioner was produced before the Magistrate after execution of the FLW and he was ordered to be released on the same day as he has paid Rs.2,000/- towards the compensation amount on that day.

On perusal of the order sheet, it discloses that the petitioner has been making some payments in favour of the respondent herein towards the compensation. On 07.09.2013 and 30.09.2013 he has paid Rs. 1,500/-each, on 29.07.2013 he has paid a sum of Rs.3,000/-, on 30.10.2013 he has paid Rs.4,000/- and on 27.12.2013 he has paid Rs. 10,000/-. The above said attitude of the petitioner shows that he has been making some payments.

In this background, the learned Counsel contends that the learned Magistrate without exhausting the remedy under Section 421 of Cr.P.C. has directly issued FLW which is not proper under Section 421 of Cr.P.C. The compensation awarded by the Trial Court can also be recovered as if a fine. There is no doubt so far as this aspect is concerned. But, how the recovery of fine is enunciated under Section 421 of the Code of Criminal Procedure, which reads as follows :

"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 the offender;

(b) Issue a warrant to the Collector of the district, authorizing 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 91) 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 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."

The provision clearly empowers the Magistrate either to issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender and also issue a warrant to the Collector of the District authorising him to realise the amount as arrears of land revenue from the moveable or immovable property, or both, of the defaulter. But the order sheet discloses that these two clauses have not been taken note by the learned Magistrate, but it appears he has issued FLW for the recovery of the said amount.

Therefore, in this particular case, I don''t find any strong reasons to refuse the remedy sought for by the petitioner. The learned Magistrate in order to avoid unnecessary complications has to exhaust the remedy as provided under the provision. Therefore, in view of the above said provision, the order passed by the learned Magistrate in directly issuing FLW against the petitioner is not warranted and the same deserves to be set aside. However, the learned Magistrate is directed to exhaust the remedy as contemplated under Section 421(1)(a) and(b) of Cr.P.C.

With these observations, the petition stands allowed. The order of the learned Magistrate in issuing FLW in Crl. Misc. 203/2012 dated 27.12.2013 on the file of the 2nd Additional Civil Judge (Jr. Dvn.) and JMFC, Chikmagalur is hereby set aside. However, the petitioner is at liberty to make the payment as he has been making before the Court below in favour of the respondent.