IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.Rev.Pet.No. 194 of 2003(B) ------------------------------------------ CRL.A.140/1997 OF ADDL.SESSIONS COURT, THALASSERY, CC.NO. 548/1991 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR. .................... REVISION PETITIONER/ RESPONDENT/ COMPALAINANT: --------------------------------------------------------------------------------- V.RADHA, W/O. VIJAYAN, RAYARETH HOUSE, EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH. RESPONDENT/APPELLANT/ACCUSED & STATE: --------------------------------------------------------------------- 1. PREMAJA, W/O. BABU, P.O.NIDUPUZHA, PANAMUKKU, TRICHUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED FOR R2, ADV. SRI.DILIP J. AKKARA FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- CRRP.NO. 194/ 2003 --------------------------------- 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 CRMC.1969 /2005 4 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