N.i.act
Medha Bhattacharyya
(Querist) 18 June 2014
This query is : Resolved
Judicial Magistrate gave an order in a case U/Sec.138 of N.I.Act "the accused is sentenced to suffer simple imprisonment for one month and to reimburse of Rs.3,10.000/- out of which Rs.3,00,000/- is the compensation amount given to the complainant and the rest Rs.10,000/-will be deposited to district legal services' fund.And if the cnvict fails to pay the fine then he will face simple imprisonment for another month".
now my question is-(i)What way the complainnant recover the amount of Rs.3,00,000/- from the accused? state the procedure.
Sudhir Kumar, Advocate
(Expert) 19 June 2014
if convict opts to be in jail for another one month then the judgement is satisfied and no more dues are on him.
Rajendra K Goyal
(Expert) 19 June 2014
If the accused / now convict prefer to be jailed, nothing can be recovered from him.
Sunil S Nair
(Expert) 19 June 2014
Yes as advised by expert accused is free to go when he has completed his sentence nothing can be recovered from him
malipeddi jaggarao
(Expert) 19 June 2014
Agreed with the experts. Your advocate can find out whether the accused is willing to pay the money or prefer to go for one more month jail through his counter-part. In the judgement, time frame might have been given. You have to wait till the time is lapsed and then file a petition about the failure of payment.
R.K Nanda
(Expert) 19 June 2014
agree with experts.
ajay sethi
(Expert) 19 June 2014
have you not filed summary suit to recover cheque amount ?
Lawyer SALEEMA KABEER
(Expert) 19 June 2014
With great respect, I differ from the opinions of the above experts.
It is settled principle of law that a person cannot frustrate the attempt of the law to recover the fine or deemed fine amount which includes the amount of compensation awarded under section 357 Cr.P.C, by merely opting to undergo the sentence in default.
If a Court is satisfied that any indicatee is resorting to such a deviant course to avoid payment of fine, certainly Courts are left with the discretion under the first part of the proviso to Section 421(1) Cr.P.C.
Thus, in an appropriate case on discretion of the Court, the property of the defaulter can be proceeded against for recovery of the amount notwithstanding the fact that the default sentence has been undergone.
T. Kalaiselvan, Advocate
(Expert) 21 June 2014
I agree with the opinion of expert learned Ms.Saleema Kabeer that under the provisions of section 421(1) of Cr.P.C.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.
Section 421 says: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, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or
both of the defaulter.
Thus the above expert Ms. Kabeer is right in opining that "It is settled principle of law that a person cannot frustrate the attempt of the law to recover the fine or deemed fine amount which includes the amount of compensation awarded under section 357 Cr.P.C, by merely opting to undergo the sentence in default."
Hope the author is satisfied now.
