(1941) 43 BOMLR 122
This case deals with the offence of cheating , criminal procedure act ,Indian Penal Code and immovable property. This case deals with section 386(2) of Crpc talks about the power of the appellant court and section 70 of Indian Penal Code talks about the fine leviable within 6 years or during imprisonment . The case talks about the darkhast where the accused is liable for the offence of cheating but due to the excessive payment now the accused property is not liable for the to the payment of fine. For the offence of cheating , various darkhast was filed before the judge .
Facts of Case
This appeals arises in the execution of darkhast to recover a certain amount of money by the appellant who is the collector of Broach and Panch Mahals against the respondent. With the further information it was held that the latter had been convicted for the offence of cheating and with fine of 15,000 Rs and sentenced to three year rigorous imprisonment. On 10th May a letter was send by the sessions judge under section 386(2) of Crpc to reliase the fine for immovable property.
Two Darkhast was filed by the collector in 1929 and 1930 to reliase the amount and a sum of Rs 4,277 was reliased in execution . Later, the third darkhast was filed for the sold of immovable property and in the year 1938 , the present darkhast was filed to recover the balance. But the accused was not able to pay the money and also the property is not liable for the payment . His second contention was filed under section 70 of Indian penal code for the fine imposed upon him should have been recovered within six years.
Issues of case
Whether criminal procedure code warrant issued can turn into decree of civil court?
Whether in section 70 of Indian Penal Code, the fine can be levied after six year ?
The court held that the under the provisions of section 386(3) of Crpc it is held that criminal procedure code warrant cannot turn into decree of civil court and the provisions of section 70 of Indian Penal code were not affected by section 386(3) of Crpc. So the court held that the darkhast was time barred and the court dismissed it . The court also held that in section 386 somehow the recovery is also given for the maintenance of wives and children but later it was quite clear that the criminal procedure code deals with only procedure of levying the fines imposed under the crimes. So in matter of immovable property , it is contended that the the immoveable property could also be proceeded with by means of execution of the warrant which was to be treated for that purpose as if it were a decree, but the levy of the fine as against moveable as well as immoveable property was subject to the control of the provisions of Section 70 , viz., that it was to be levied within the period of six years. The lower court was right in holding that the darkhast which was presented after six years from the date of sentence is barred under section 70 . The court is therefore confirmed and dismissed the appeal with costs .