IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 486 of 2001()
1. RAJEEV
... Petitioner
Vs
1. BHARATHAN
... Respondent
For Petitioner :SRI.T.M.CHANDRAN
For Respondent :SRI.P.K.ASHOKAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/02/2010
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 486 of 2001
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Dated: 22-02-2010
ORDER
The complainant in C.C. No. 12 of 1996 on the file of the
J.F.C.M. II, Trichur, is the revision petitioner. He is aggrieved by
the modification of the sentence by the lower appellate court to
one of fine of Rs.s 5,000/- as against the sentence of rigorous
imprisonment for six months imposed by the trial court in a
prosecution under Sec. 138 of the Negotiable Instruments Act.
The cheque involved is for Rs. 25,000 and the date of the cheuq
cheque was 15-8-1995. According to the revision petitioner, the
lower appellate court erred in not imposing a fine of at least Rs.
25,000/- (cheque amount) or in the alternative in not awarding
compensation for at least the cheque amount.
2. The learned counsel appearing for the first
respondent/accused made the following submissions against the
enhancement of fine or imposition of compensation as sought by
the revision petitioner/complainant:_
The maximum limit of fine which the Magistrate could
impose under Section 29 of Cr.P.C. was Rs. 5,000/-. Hence, the
Crl.R.P. No. 486 of 2001 -:2:-
lower appellate court was fully justified in imposing a fine of Rs.
5,000/-. This was a case where both the trial court as well as the
lower appellate court did not award any compensation under Sec.
357 (3) Cr.P.C. Hence, without challenging the sentence passed
by the trial Court which did not impose any compensation it is not
open to the revision petitioner to canvass for an order for
compensation under Sec. 357 (3) Cr.P.C.
3. I am afraid that I cannot agree with the above
submissions. The amount covered by the cheque is Rs. 25,000/-.
This is a case which arose prior to 6-2-2003 with effect from
which date by virtue of the amendment to Sec. 143 of the N.I. Act
the fine limit of Rs. 5000/- for the Judicial Magistrate of First Class
was got over. Hence, as far as the present case is concerned, the
Magistrate could impose a maximum fine of Rs. 5,000/- only. It is
true that the trial court imposed only rigorous imprisonment for
six months without any order for compensation or fine. It is also
true that the lower appellate court modified the sentence by
imposing a fine of Rs. 5,000/- with a default sentence. But then,
the proper order which the Courts below should have passed was
imprisonment for a lesser period and compensation by way of at
least the cheque amount and by doing that the courts below would
not have violated the limit of Rs. 5000/ under Section 29 Cr.P.C.
Crl.R.P. No. 486 of 2001 -:3:-
which is applicable only to fine and not compensation under Sec.
357 (3) Cr.P.C. (See Bhaskaran v. Balan – 1999 (3) KLT 440
SC). It is true that it is the illegality in the sentence imposed by
the lower appellate court which is specifically challenged in this
Revision. It is also true that the revision petitioner /complainant
did not question the sentence imposed by the trial Court. But then,
as was enjoined by the decision of the Apex Court in Harikishan
& State of Haryana v. Sukhbir Singh – AIR 1988 SC 2127 it
was obligatory for the Magistrate to liberally exercise its power
under Sec. 357 Cr.P.C. and awarding compensation to the
complainant who had sustained legal injury on account of the act
of the accused person. That was not done by the trial court. It is
the said illegality which can be taken note of by this Court while
exercising its revisional jurisdiction under Section 401 (1) Cr.P.C.
In contradistinction with the power of the Sessions Court, the High
Court sitting in revision can not only exercise its power of
revision in respect of a case the record of which has been called
for by itself but also can exercise the said power if the illegality
otherwise comes to its knowledge. The illegality of not awarding
compensation in spite of the mandate in AIR 1988 SC 2127
(supra) is one which comes to the knowledge of this Court while
exercising its revisional jurisdiction. Hence, in modification of
Crl.R.P. No. 486 of 2001 -:4:-
the sentence awarded by the lower appellate Court the
respondent/ accused is sentenced to imprisonment till the rising of
the court and to pay a sum of Rs. 25,000/- being the cheque
amount as compensation under Sec. 357 (3) Cr.P.C. He shall
either pay to the complainant or deposit the compensation amount
before the trial Court within two months failing which he shall
undergo simple imprisonment for two weeks by way of default
sentence. Amounts, if any, deposited by the revision petitioner
before the trial court, pursuant to the orders of Court, shall be
given credit to while paying or remitting the aforesaid amount of
compensation.
This Revision is disposed of as above.
Dated this the 23rd day of February, 2010.
V. RAMKUMAR,
(JUDGE)
ani.