High Court Kerala High Court

G.Anilkumar vs H.Harshkumar on 2 December, 2008

Kerala High Court
G.Anilkumar vs H.Harshkumar on 2 December, 2008
       

  

  

 
 
  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.
                  ------------------------------------------
                   CRL.R.P. NO. 3730 OF 2008
                  ------------------------------------------
            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/-