NARAYANAN NAMBIAR K Vs. MATHEW A M

JUDGEMENT

(1.) Does the provisions for set off in Section 428 of the Code of Criminal Procedure apply to a sentence imposed for default in payment of compensation under Section 357(3) Cr.P.C as enabled by the dictum in Hari Kishan & State of Haryana v. Sukhbir Singh, and Suganthi Suresh v. Jagdeeshan, Do the words "not being imprisonment in default of payment of fine" introduced in Section 428 Cr.P.C. by Act 45 of 1978 w.e.f 16.12.1978 take in a sentence of imprisonment in default of payment of compensation Are deemed fines -not fines stricto senso also included in the sweep of the expression "fine" in the portion introduced by amendment in 1978 These are the interesting questions that are thrown up for consideration.

(2.) To the crucially relevant facts first. The petitioner faced indictment in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty, convicted and sentenced on 29.06.1996. During the pendency of that prosecution, he had undergone imprisonment as an under trial from 02.02.96 to 26.04.96. The learned Magistrate sentenced him to undergo substantive sentence of R.I for a period of 6 months. No fine was imposed. There was no direction for payment of compensation.

(3.) The petitioner preferred an appeal. In the appeal, the verdict of guilty, conviction and sentence were all confirmed. There was a direction that the learned Magistrate must consider whether the petitioner is entitled for set off for the period of 84 days under Section 428 Cr.P.C. The learned Magistrate, by order dated 16.01.1999, took the view that the petitioner is entitled for set off for the said period of 84 days and that period was liable to be set off against the substantive sentence of imprisonment imposed.