Case Note & Summary
The petitioner, Mohammed Rafic, was convicted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque and sentenced to pay compensation of Rs.4,25,000/- to the complainant, Mario H. Fernandes, with a default sentence of one month simple imprisonment. The conviction was upheld by the Sessions Court in appeal. The petitioner served the default sentence but did not pay the compensation. Subsequently, the complainant filed a Criminal Miscellaneous Application before the Magistrate seeking issuance of a warrant of attachment of the petitioner's flat. The Magistrate, by order dated 20/04/2015, directed the petitioner to pay the compensation within 15 days and ordered that if the amount was not paid, the flat be attached and sold. The petitioner challenged this order before the High Court. The High Court examined the procedure under Section 421 of the Code of Criminal Procedure, 1973, which governs the recovery of fines and compensation. The Court noted that the Magistrate's order did not comply with the mandatory requirements of Section 421 CrPC, which requires that a warrant of attachment be addressed to the Collector of the district and that the property be sold by the Collector. The Magistrate had directly ordered attachment and sale without issuing any notice to the petitioner and without following the prescribed procedure. The High Court held that the order was unsustainable and quashed it, granting liberty to the complainant to take appropriate proceedings in accordance with law.
Headnote
A) Criminal Procedure Code - Recovery of Compensation - Section 357 read with Section 421 CrPC - Procedure for Attachment - The Magistrate ordered attachment of the petitioner's flat for recovery of compensation under Section 357 CrPC without issuing notice or following the procedure under Section 421 CrPC. The High Court held that the order was unsustainable as the Magistrate failed to follow the mandatory procedure under Section 421 CrPC, which requires the warrant to be addressed to the Collector and the property to be sold by the Collector. The order was quashed and set aside. (Paras 4-6) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Compensation - The petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to pay compensation of Rs.4,25,000/-. The conviction and sentence were upheld in appeal. The petitioner served the default sentence but did not pay compensation. The complainant sought attachment of the petitioner's flat. (Paras 2-3)
Issue of Consideration
Whether the Magistrate could issue a warrant of attachment of the petitioner's flat for recovery of compensation under Section 357 CrPC without following the procedure under Section 421 CrPC.
Final Decision
The High Court quashed and set aside the order dated 20/04/2015 passed by the learned Judicial Magistrate, First Class, Panaji, issuing warrant of attachment of the petitioner's flat. The Court granted liberty to the complainant to take appropriate proceedings in accordance with law.
Law Points
- Attachment of property for recovery of compensation under Section 357 CrPC must follow procedure under Section 421 CrPC
- Notice to defaulter before attachment is mandatory
- Warrant of attachment must be addressed to Collector
- Magistrate cannot directly attach property without following statutory procedure
