IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 194 of 2003()
1. V.RADHA W/O. VIJAYAN, RAYARETH HOUSE,
... Petitioner
Vs
1. PREMAJA W/O. BABU, P.O.NIDUPUZHA,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.P.M.PAREETH
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice V.GIRI
Dated :25/08/2008
O R D E R
V. GIRI, J.
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CRRP.NO. 194/ 2003
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Dated this the 25th day of August, 2008.
ORDER
The complainant in CC.No.548/1991 on the files of the
Judicial First Class Magistrate Court-I, Kannur is the petitioner
herein. The accused was prosecuted for an offence punishable
under section 138 of the Negotiable Instruments Act. The trial
court found her guilty under section 138 of the Negotiable
Instruments Act and convicted and sentenced her to pay a fine of
Rs.45,000/- with a direction that if the fine amount is paid, an
amount of Rs.44,000/- was paid over to the complainant under
section 357(3) of the Cr.P.C. The accused challenged the
conviction and sentence in Crl.Appeal No.140/97. The
appellate court confirmed the conviction. But while considering
the sentence the appellate court found that the learned
Magistrate had committed an illegality in imposing an excess fine
of Rs.45,000/- as it is in violation of the provisions of the Cr.P.C.
Accordingly, the sentence was modified and the fine amount
was reduced to Rs.5000/-. But thereafter the court directed that
CRMC.1969 /2005 2
an amount of Rs.4500/- be given to the complainant as
compensation from out of the fine amount, if realised under
section 357(3) of the Cr.P.C. Aggrieved by the modification of the
sentence, the complainant had preferred this revision.
2. Learned counsel for the petitioner Sri.P.M.Pareed refers
to the judgment of the Supreme Court in Suganthi Suruesh
Kumar vs. Jagadeeshan 2002(1) KLT 581) to contend for the
position that in directing payment of compensation under section
357 (3) of the Cr.P.C. the court should take note of the fact that
if the Magistrate orders to pay compensation to the complainant
from out of the fine realised, the complainant will be the loser
when the cheque amount exceeds the limit of Rs.5000/-. But in
such cases the Magistrate can alleviate the grievance of the
complainant by taking resort to the provisions of section 357(3)
of the Cr.P.C..
3. The appellate court in the present case took note of
section 357(3) of the Cr.P.C. But nevertheless directed that the
complainant shall be entitled to compensation under section 357
(1) (b) of the Cr.P.C. Though reduction of the fine amount from
Rs.45,000/- to 5000/- cannot be faulted with, taking note of the
CRMC.1969 /2005 3
fact that no substantive sentence of imprisonment was actually
imposed on the accused, it would have been appropriate in a case
involving an offence under section 138 of the Negotiable
Instruments Act for the appellate court to direct that
compensation be awarded under section 357(3) of the Code. But
this of course can be done only when the court imposes a
sentence of which fine does not form a part. From a reading of
the appellate judgment, I find that none of the relevant factors,
which have to be borne in mind by the court as outlined in the
judgment of the Supreme Court in Suganthi vs. Jagadeeshan
(2002(1) KLT 581 and the earlier judgment of the Supreme court
referred to therein have been kept in mind by the appellate
court.
4. In these circumstances, it is only appropriate for the
appellate court to reconsider the question of sentence.
Accordingly, Crl.RP is allowed in part and the judgment of the
appellate court in Crl.A.140/97 is set aside in so far as it relates
to the sentence alone. The case is remanded to the Additional
Sessions Judge, Thalassery for passing fresh orders as regards
the sentence to be imposed on the accused for the offence under
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section 138 of the Negotiable instruments Act. The parties shall
appear before the Sessions Judge on 13.10.2008. Though there
is appearance on behalf of the accused in this revision, I have not
been benefited by the submissions of the learned counsel for the
accused. If the learned Sessions Judge finds that there is no
appearance on behalf of the accused on 13.10.2008, then in the
interest of justice the court shall direct fresh summons to be
issued in that regard and then further proceed with the matter
as directed herein above.
V. GIRI, JUDGE.
Pmn/ CRMC.1969 /2005 5