IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3730 of 2008(E)
1. G.ANILKUMAR
... Petitioner
Vs
1. H.HARSHKUMAR
... Respondent
For Petitioner :SRI.SUBHASH CYRIAC
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/12/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3730 OF 2008
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Dated this the 2nd day of December, 2008
O R D E R
Revision petitioner is the complainant and first
respondent the accused in C.C. 1045 of 2002 on the file of
Judicial First Class Magistrate-III, Punalur. First respondent
was convicted and sentenced to a fine of Rs.95,000/- for the
offence under section 138 of Negotiable Instruments Act. First
respondent challenged the conviction and sentence before
Sessions Court, Kollam in Crl. Appeal 592 of 2005. Learned
Additional Sessions Judge on reappreciation of evidence
confirmed the conviction. But it was found that sentence of fine
in excess of Rs.5000/- is illegal in view of section 29 of the Code
of Criminal Procedure. Learned Sessions Judge took note of the
fact that the financial powers of the Magistrate in awarding
sentence of fine in excess of Rs.5000/- came into force only on
6.2.2003 and as the complaint was filed on 10.10.2002 learned
Magistrate could not have awarded a fine above Rs.5000/-. The
sentence was therefore reduced to fine of Rs.5000/-. It is
CRRP3730/08 2
challenged in this revision.
2. Learned counsel appearing for revision petitioner and
first respondent were heard.
3. Learned counsel argued that learned Sessions Judge
should not have reduced the fine to Rs.5000/- when Ext.P1
cheque was for Rs.95,000/-.
4. On hearing the learned counsel I find no reason to
interfere with the modified sentence passed by the Sessions
Judge. Though proviso to sub section (1) of section 147 of
Negotiable Instruments Act enables the Magistrate to award a
sentence of fine, exceeding Rs.5000/-, it came into force only on
6.2.2003. Similarly the enhancement of power of the Magistrate
to impose fine of Rs.5000/-, under section 29 of Code of
Criminal Procedure came into force only with effect from
23.6.2006. Therefore learned Sessions Judge was justified in
reducing the sentence to fine of Rs.5000/-. Though learned
counsel argued that the learned Sessions Judge should have
converted the fine into compensation, when fine forms part of
the sentence as provided under section 357(3) of Cr.P.C.,
compensation cannot be awarded under sub section 3. When
fine forms part of the sentence, compensation could be awarded
CRRP3730/08 3
only as provided under section 357(1) of Cr.P.C., which could
only be the whole or part of the sentence. In such
circumstances revision is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-