IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 385 of 2001(C) ----------------------------- CR.A.175/1998 of SESSIONS COURT, MANJERI CC.281/1997 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER/RESPONDENT/COMPLAINANT: ---------------------------------------------------------------------- V. SHAMSUDDEEN, S/O. KUNJALI, PERINGODAN HOUSE, MYTHRI ROAD, KOTTAKKAL, MALAPPURAM DISTRICT. BY ADVS. SRI.K.M.SATHYANATHA MENON SRI. C.N. SAMEER RESPONDENTS/APPELLANT/ACCUSED: --------------------------------------------------------- 1. MAYAJA, W/O. NANU, CHAITHANYA NELLIPATHY 100 ACRE ESTATE, P.O. AGALI, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMINAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL.R.P.No. 385 of 2001 ------------------------------ Dated this the19th day of September, 2008 O R D E R On a private complaint preferred by the revision petitioner alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (herein after referred as 'the Act'), the first respondent faced trial in the court of learned Judicial First Class Magistrate, Malappuram in C.C. No.281/1997. The learned Magistrate found the first respondent guilty, convicted and sentenced her to pay a fine of Rs. 85,000/- as per the judgment dated 13/11/1998. It was also directed that out of the fine if realised, Rs.75,000/- will be given to the revision petitioner by way of compensation. Aggrieved, the first respondent challenged the judgment before the Sessions Court, Manjeri in Criminal Appeal No.175/1998. The learned Sessions Judge confirmed the conviction of the first respondent but modified the sentence to a fine of Rs.5,000/- obviously since on account of Section 29(2) of the Code of Criminal CRL.R.P.No. 385 /2001 2 procedure, a Magistrate of First Class Court could not impose a sentence of fine exceeding Rs.5,000/-. Revision Petitioner/complainant is aggrieved by the modification of the sentence made by the learned Sessions Judge and has come up in revision. 2. The first respondent and counsel remained absent. I heard counsel for the Revision Petitioner and the Public prosecutor. The learned counsel for the Revision Petitioner submitted that the learned Sessions Judge has not taken into consideration the object of the legislation and that the modification of sentence affected the right of the revision petitioner to get compensation. Counsel submitted that the revision petitioner, under the impression that he will get compensation from the Criminal Court on successful completion of the prosecution did not initiate proceedings in the Civil Court for realisation of the money due and thus has suffered loss. According to the learned counsel, it is open to this court to enhance the sentence in revision. 3. Going by Section 357(3) of the Criminal Procedure Code, there cannot be a direction for payment of compensation when there is only a sentence of fine. The direction for payment of compensation has CRL.R.P.No. 385 /2001 3 to follow a sentence of imprisonment. In the case on hand, the learned Magistrate was not inclined to impose a sentence of imprisonment on the revision petitioner, instead, the sentence was only for payment of fine of Rs.85,000/- . The refusal to impose sentence of imprisonment was not challenged by the revision petitioner. Therefore the only point as regards the sentence that arose for consideration before the learned Sessions Judge was whether the learned Magistrate was authorized to impose sentence of fine exceeding Rs.5,000/-. It was found that in view of Section 29(2) of the Code, there could not be a sentence of fine exceeding Rs.5,000/-. 4. It is open to this court at this stage to consider whether the learned Sessions Judge was justified in not remitting the case to the trial court to award proper sentence when it was found that the sentence of fine of Rs.85,000/- was bad in law. The very object of the N.I. Act is to give credibility to the cheque transactions and, though the prosecution under Section 138 is not by itself a method for recovery of the amount due under the cheque, the very fact that provision is made to award fine even double the amount of the cheque CRL.R.P.No. 385 /2001 4 indicated the intention of the Legislature. The courts are to respect the legislative mandate contained in the said provision. This was taken note by a learned single judge of this court in Anilkumar Vs. Shammy [2002(3)K.L.T. 852] when it was pointed out that normally in a successful prosecution under Section 138, a direction for payment of compensation under Section 357 (3) of the Code of Criminal Procedure must follow. The learned single judge also issued guidelines to be followed in the matter. 5. The learned Session Judge while modifying the sentence of fine of Rs.5,000/- did not take into consideration the object intended to be achieved by the Legislature. To that extent, I am inclined to accept the contention of the learned counsel for the revision petitioner and there is an illegality in the matter of sentence as modified by the learned Sessions Judge. That illegality is required to be corrected. 6. In the facts and circumstance of the case, I consider it appropriate to remit the case to the trial court for awarding proper sentence. Resultantly, the revision petition is allowed in the following CRL.R.P.No. 385 /2001 5 lines. The sentence as modified by the learned Session Judge is set aside and the case is remitted to the court of Judicial First Class Magistrate, Malappuram to award proper sentence as provided under law taking into account the very object of the legislation. The parties shall appear before the trial court on 20/11/2008. THOMAS P. JOSEPH, JUDGE scm