ORDER
L. Mohapatra, J.
1. The judgment and order dated 19-10-2001 passed by the learned J.M.F.C., Bolangir in I.C.C. Case No. 40 of 1997 (Trial No. 86 of 2001) is challenged by the complainant.
2. Case of the complainant-petitioner is that the opposite party borrowed a sum of Rupees one lakh in cash from him on 25-9-1995 with promise to repay same on demand. In token of said transaction the opposite party executed a money receipt on 25-9-1995. When the petitioner demanded payment of the money the opposite party issued a cheque in his favour towards repayment of the aforesaid amount drawn by the Central Bank of India, Janpath, Bhubaneswar vide cheque No. 033762 dated 30-10-1996. The said cheque was presented on 12-4-1997 in the State Bank of India, Tusura Branch. On 30-4-1997 the State Bank of India, Tusura Branch intimated the complainant petitioner that the amount standing to the credit of the opposite party in his account was insufficient for payment. After receiving the said information from the bank, the petitioner issued a notice to the opposite party on 12-5-1997 intimating the said fact and making a further request to pay the amount within fifteen days from the date of receipt of the notice. The opposite party received the notice on 10-6-1997 but failed to pay the money within the time stipulated, as a result of which the complaint was filed alleging therein that the offence under Section 138 of the Negotiable Instruments Act has been committed by the opposite party. The trial Court after consideration of the oral and the documentary evidence placed before him convicted the opposite party of the offence and sentenced the opposite party to pay a fine of Rs. 5000/-, in default, to undergo R.I. for three months and as compensation directed that out of a fine amount of Rs. 5000/-, Rs. 3000/- shall be paid to the complainant petitioner.
3. Shri A.C. Mohanty, learned counsel appearing for the petitioner complainant submitted that though the learned Magistrate does not have Jurisdiction/power to impose fine of more than Rs. 5000/-, as per the decision of the Apex Court, apart from fine as provided in the statute, the Magistrate could have allowed compensation. There was no reason for the learned Magistrate to allow compensation of Rs. 3000/- out of the fine amount of Rs. 5000/- as the cheque amount was for rupees one lakh and the compensation awarded is highly inadequate. Learned counsel appearing for the opposite party, on the other hand, submitted that the learned Magistrate having no jurisdiction to impose fine amount more than rupees five thousand, there is illegality in the impugned order so far as sentence is concerned.
4. The judgment of the Court — below convicting the opposite party under Section 138 of the N.I. Act is not challenged in this revision. The only challenge is with regard to the order passed by the learned Magistrate directing payment of compensation of rupees three thousand out of fine amount of rupees thousand. Undisptuedly the cheque amount was for rupees one lakh. The Apex Court in the case of Jannadula Mallikarjuna Rao v. Dodda Ventkata Subbarddy, reported in 2001 Cri LJ 2008 (AP) considered the said question and decided that power of a Magistrate proceeding to impose fine as part of sentence are restricted to Rs. 5000/- as per provisions under Section 29(2) of the Cr.P.C. If a Magistrate proposes to proceed under Section 357 of Cr.P.C. for awarding compensation to complainant under Section 138 of the N.I. Act, question of pecuniary limits as contemplated under Section 29(2), Cr.P.C. being applicable does not arise but once Magistrate proceeds to impose fine as part of sentence then quantum of fine that he can impose is necessarily to be restricted to Rs. 5000/- as per provisions under Section 29(2) of Cr.P.C. Option to award compensation under Section 357, Cr.P.C. without reference to pecuniary limits for imposing fine is available only when fine is not a part of sentence imposed by Magistrate.
5. In the case of Pankajbhai Nagjibhai Patel v. State of Gujarat, reported in AIR 2001 SC 567 : (2001 Cri LJ 950) the Apex Court took the following view :
“A Judicial Magistrate of First Class cannot have impose sentence of fine beyond Rs. 5000/- in view of the limitation contained in Section 29(2) of the Code of Criminal Procedure. The non obstante limb provided in Section 142 of the Negotiable Instruments Act is not intended to expand the powers of a Magistrate of first class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of first class in the matter of imposing a sentence i.e. if the sentence is imprisonment it shall not exceed 3 years if the sentence is fine (even if it is part of the sentence) it shall not exceed Rs. 5000/-.
The non obstante expression provided in Section 142 is intended to operate only in respect of three aspects, and nothing more. The first is this : insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque, the second is this : so far as the offence under Section 138 of the Negotiable Instruments Act is concerned such complaint shall be made within one month of the cause of action. The third is this : for the offence under Section 138 no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class try the said offence.”
In view of the above two decisions of the Apex Court, I find considerable force of the submission of the learned counsel for the petitioner that the Magistrate had ample power to grant compensation which does not form part of fine.
6. Learned counsel for the opposite party submitted that it is open for the petitioner to recover the amount by filing a civil suit and no compensation should be granted by the learned Magistrate. In this connection, reference may be made to the decision of the Apex Court in the case of Suganthi Suresh Kumar v. Jagdeeshan, reported in 2002 Cri LJ 1003 : (AIR 2002 SC 681). The Apex Court in the aforesaid decision observed as follows :
“The total amount covered by the cheques involved in the present two case was Rs. 4,50,000/-. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial Court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a fleebite sentence as had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrate that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is of a different matter if the accused paid the amount at least during the pendency of the case.
Learned counsel for the respondent contended that the complainant has subsequently filed a civil suit and attached all the properties of the respondent. That is not a ground for lessening the gravity of the offence or to impose a minor sentence chosen by the trial Court.”
In view of what has been observed by the Apex Court in the aforesaid decision, the submission of the learned counsel for the opposite party is not acceptable. However, in the aforesaid decision the Apex Court instead of deciding the amount of compensation to be paid, remitted the master back to the trial Court for consideration by the learned Magistrate.
7. I, therefore, dispose of this revision directing the learned Magistrate to reconsider the question of grant of compensation with reference to the decisions referred to above and pass necessary orders.