Patri Basavana Goud, J.:—
On the complaint of the petitioner under Section 200 Cr. P.C, the respondent came to be prosecuted before the learned XVI Addl. Chief Metropolitan Magistrate, Bangalore, for an offence under Section 138 of the negotiable Instruments Act, 1881 (‘N.I Act’ for short), and eventually by the judgment and order dated 5.6.1999, came to be convicted of the said offence, and sentenced to a fine of Rs. 60,000/-, in default, to SI for six months. Out of the fine amount, if recovered, a sum of Rs. 58,000/- was ordered to be paid to the petitioner - complainant as compensation. It may be mentioned in this context that the cheque concerned was for a sum of Rs. 55,000/-. When the respondent took up the matter in appeal before the learned Sessions Judge, the Appellate Court affirmed the conviction. But, so far as sentence is concerned, referring to the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan . JT 1999 7 SC 558. the learned Appellate Judge held that the learned trial judge could not have imposed fine of more than Rs. 5,000/-, and that, therefore, the trial Court, in imposing the fine of Rs. 60,000/-, had acted illegally. The Appellate Judge, while thus affirming the conviction, set aside the sentence and remitted the matter to the trial Court for the purpose of imposing sentence in accordance with law after hearing both the sides. The petitioner-complainant, being aggrieved with this part of the order of the learned Appellate Judge relating to sentence, has come up in revision under Section 397 Cr. P.C
2. The respondent, though served with notice, has remained absent. I have heard Sri Somashekara Reddy, learned Counsel for the petitioner.
3. In the light of what the Supreme Court has said in Bhaskaran's case referred to above, the Appellate Judge's order would have been right had the trial judge been a Magistrate of the First Class. In the case the Supreme Court was considering, the position was this: The trial Judge was the Judicial Magistrate of the first class. The learned Magistrate had acquitted the accused of the offence punishable under Section 138 of the N.I Act. The complainant questioned the said order of acquittal by way of an appeal before the Kerala High Court. The High Court allowed the appeal, set aside the order of acquittal, and convicted the accused-respondent of the said offence under Section 138 of the N.I Act, and sentenced him to imprisonment for six months, and to a fine of Rs. 1,00,000/-. The accused then approached the Supreme Court. The Supreme Court found that the High Court had rightly held the accused guilty of the offence under Section 138 of the N.I Act. So far as the punishment is concerned, this is what the Supreme Court said.
“The High Court has imposed a sentence of imprisonment for 6 months and a fine of Rs. One lakh on accused. Section 138 of the Act provides punishment with “imprisonment for a terms which may extend to one year, or with fine which may extend to twice the amount of cheque or with both”. But the Court cannot obviate the jurisdictional limit prescribed in Section 386 of the Code. Though the said provision confers power on the Court of appeal to reverse an order of acquittal and find the accused guilty and pass sentence on him according to law, even the High Court, when it is the Court of appeal, has to conform to the second proviso to Section 386 of the Code. It reads thus:
“Provided further that the Appellate Court shall not inflict greater punishment for the offence which, in its opinion, the accused has committed, than might have been inflicted for that offence by the Court passing the order of sentence under appeal.”
In this context, a reference to Section 29(2) of the Code is necessary as it contains a limitation for the magistrate of first class in the matter of imposing fine as a sentence or as a part of the sentence. Section 29(2) reads thus:
“The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.”
The trial in this case was held before a Judicial Magistrate of first class who could not have imposed a fine exceeding Rs. 5,000/ besides imprisonment. The High Court, while convicting the accused in the same case, could not impose a sentence of fine exceeding the same limit.
It is true, if a judicial magistrate of first class were to order compensation to be paid to the complainant from out of the fine realized the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. However, the Magistrate in such cases can alleviate the grievance of complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasized the need for making liberal use of that provision, (Hari Kishan v. Sukhbir Singh - (1988) 4 SCC 551 : AIR 1988 SC 2127). No limit is mentioned in the sub-section and therefore, a magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation, the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of magistrate of first class in respect of a cheque which covers an amount exceeding Rs. 5,000/- the Court has power to award compensation to be paid to the complainant.”
4. An offence under Section 138 of the N.I Act is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. Section 142(c) provides that, no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 of the N.I Act. Thus, even a Judicial Magistrate of the first class is enabled to try the said offence punishable under Section 138 of the N.I Act. Section 29 Cr. P.C reads thus:
“Section 29. Sentences which Magistrates may pass:—(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a magistrate of the first class.”
4. It could be seen from the above that, while so far as the imprisonment is concerned, Section 29(2) Cr. P.C enables a Magistrate of the first class to award imprisonment for an offence under Section 138 of the N.I Act to the extent the said Section 138 provides, so far as the aspect of fine is concerned, though Section 138 of the N.I Act enables levying a fine to an extent of twice the amount of cheque, a Judicial Magistrate of the first class by himself cannot give full effect to this provision where the cheque amount exceeds Rs. 5,000/- That is because, under Section 29(2) Cr. P.C, the maximum fine that a Magistrate of the first class may impose, cannot exceed Rs. 5,000/-. In such a situation, where the Judicial Magistrate of the first class is of the opinion that the accused is guilty of the offence under Section 138 of the N.I Act, but, that the said accused ought to receive a punishment more severe than what he is empowered to inflict having regard to his limitations under Section 29(2) Cr. P.C, then he could take recourse to Section 325 Cr. P.C, and submit proceedings to the Chief Judicial Magistrate.
5. In the case that the Supreme Court was dealing with, the necessity for referring to the limit on the power of a Judicial Magistrate of the first class in the matter of imposing fine under Section 29(2) Cr. P.C arose because in the case concerned, it was the High Court that had awarded, for the first time, the, punishment of imprisonment for six months, and fine of Rs. 1,00,000/-. The Supreme Court, therefore, referred to the second proviso to Section 386 Cr. P.C to point out that the appellate Court (Kerala High Court in the case concerned) would not be able to inflict greater punishment for the offence concerned, than might have been inflicted for that offence by the Court passing the order or sentence under appeal, viz., the Court of the Judicial Magistrate of the First class. In other words, the Supreme Court pointed out that, even if the High Court of Kerala were to differ with the order of acquittal passed by the learned Magistrate, and to proceed to convict the accused concerned of the offence under Section 138 of the N.I Act, the High Court of Kerala, in view of the said second proviso to Section 386 Cr. P.C Could not have sentences the accused-respondent to a fine exceeding Rs. 5,000/-, because that was the limit of fine to which the Court that passed the order under appeal, viz., the judicial Magistrate of the first class, could have passed in view of Section 29(2) Cr. P.C That is the reason why I said at the outset that, if the trial Judge in this case had been a Magistrate of the first class, the conclusion of the learned appellate Judge would have been correct. The position however is different in the present case as will be presently seen.
6. The trial Judge herein, and the Judge who has convicted the respondent-accused and has sentenced him to pay fine of Rs. 60,000/-, in default, to SI for six months, is an additional Chief Metropolitan Magistrate, and not a Magistrate of the first class. Section 17(1) Cr. P.C provides that, in relation to every metropolitan area, the High Court shall appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such a metropolitan area. Sub-section (2) thereof provides that, a High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under the Criminal Procedure Code, or under any other law for the time being in force as the High Court may direct. No Notification issued by the High Court has been brought to my notice to indicate that the High Court intends to restrict the powers of Additional Chief Metropolitan Magistrates and to confer upon them only some or particular powers. On the other hand, my attention has been drawn to a Notification of the High Court No. GOB (II) 100/1985 dated 29.8.1985 issued under sub-section (2) of Section 17 Cr. P.C appointing the Presiding Officer, Special Court (Economic Offences), Bangalore, as an Additional Chief Metropolitan Magistrate, Bangalore City, and directing that he shall exercise all the powers of Chief Metropolitan Magistrate under the said Code or under any other law for the time being in force, except the powers under sub-section (3) of-Section 19, Section 192 and sub-section (1) of Section 410 Cr. P.C The trial Judge concerned herein was the XVI Additional Chief Metropolitan Magistrate, Bangalore City. No such Notification as has been issued in respect of the Presiding Officer, Special Court (Economic Offices) Bangalore, restricting his powers as above, is shown to have been issued in respect of an Additional Chief Metropolitan Magistrate like the Trial Judge concerned herein. Therefore, on a proper interpretation of sub-section (2) of Section 17 Cr. P.C, an Additional Chief Metropolitan Magistrate like the Trial Judge concerned herein must be held to have all the powers of a Chief Metropolitan Magistrate, and the said powers need not be expressly conferred upon him by the High Court under sub-section (2) of Section 17 Cr. P.C Section 29(1) Cr. P.C provides that, the Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. Section 29(4) Cr. P.C inter alia provides that, the Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate. A combined reading of sub-section 2 of Section 17 Cr. P.C and sub-sections (1) and (4) of Section 29 Cr. P.C would make it clear that, an additional Chief Metropolitan Magistrate shall have the powers of the Court of chief Judicial Magistrate, and that the Court of Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or imprisonment for life or imprisonment for a term exceeding seven years. Therefore, if an Additional Chief Metropolitan Magistrate convicts a person of an offence punishable under Section 138 of the N.I Act, he may, if he so chooses, in addition to the imprisonment as provided in the said Section 138 of the N.I Act, also award a sentence of fine which may extend to twice the amount of cheque irrespective of for what amount the cheque is, and without any limitation as to the amount of fine which limitation is otherwise available under sub-section (2) of Section 29 Cr. P.C in the case of a Judicial Magistrate of the first class. In that view of the matter, the sentence of fine of Rs. 60,000, in default, to SI for six months as awarded by the learned XVI Additional Chief Metropolitan Magistrate, Bangalore, in the case concerned herein, is a sentence in accordance with law. Even with regard to awarding of compensation, Section 357(1)(b) Cr. P.C permitted payment to any person of any compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court, awarding of such compensation being possible under the said provision when the Court imposes a sentence of fine or a sentence (including the sentence of death) of which fine forms a part. Under the said provision therefore, in so far as the offence under Section 138 of the N.I Act is concerned, since it provides for punishment for imprisonment or fine or both, supposing the Court imposes a sentence of fine only, or supposing it imposes a sentence of imprisonment as well as fine, then, in that event, the Court could order the whole or any part of the fine recovered to be applied towards any payment of compensation as said above. This is the provision contained in Section 357(1)(b) Cr. P.C Of course, it is clear thereunder that, the amount of compensation to be awarded under Section 357(1)(b) Cr. P.C has to be out of the fine amount. It could be whole of the fine amount, or part of the fine amount. Since, for the offence under Section 138 of the N.I Act, even a sentence of imprisonment only could be awarded and sentence of fine may not be awarded if the Court so chooses, because the punishment provided is imprisonment or fine or both, even in such a situation, i.e, where the Court imposes sentence of imprisonment only, and fine does not form part of such sentence, then, sub-section (3) of Section 357 Cr. P.C permits the Court to order, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused has been so sentenced. Thus, depending upon whether the Court has imposed a sentence of fine only or a sentence of which fine forms part, compensation could be awarded under Section 357 (1)(b) Cr. P.C, and even where the Court imposes only a sentence of imprisonment, compensation could still be awarded under Section 357(3) Cr. P.C The learned Additional Chief Metropolitan Magistrate, in the present case, having chosen to award sentence of fine only, viz., of Rs. 60,000/-, in default, to SI for six months, the case squarely falls within the ambit of Section 357(1) Cr. P.C, and as such, the order of the learned Additional Chief Metropolitan Magistrate, further directing that, out of the said fine of Rs. 60,000/-. if recovered, a sum of Rs. 58,000/- shall be paid to the complainant as compensation in the context of the dishonoured cheque being for a sum of Rs. 55,000/-, is squarely covered by Section 357(1)(b) Cr. P.C, and as such, no exception could be taken to that aspect also.
In view of the above, once the learned appellate Judge affirmed the conviction, no exception could be taken to the manner in which the sentence is passed by the learned Additional Chief Metropolitan Magistrate. Learned appellate Judge erred in concluding to the contrary and finding fault with the sentence imposed, after affirming the conviction.
7. Inspite of the above conclusion, the matter needs to be remitted to the learned appellate Judge, after setting aside the order of the learned appellate Judge in so far as it relates to the sentencing aspect. It is for the following reasons.
It is true that the learned appellate Judge affirmed the conviction as recorded by the learned Additional Chief Metropolitan Magistrate with regard to the offence under Section 138 of the N.I Act. I have now found that, with regard to the sentence imposed by the learned Additional Chief Metropolitan Magistrate, and the order relating to payment of compensation to the complainant, same is legally correct, and that, the learned appellate Judge erred in finding fault with the said aspect of the order of the learned Magistrate. Nevertheless, the matter needs to be remitted to the learned appellate Judge, because, the main part of Section 386 Cr. P.C enables the appellate Court to dismiss the appeal if it considers that there is no sufficient ground for interfering, or even where an appellate Court affirms conviction, Sub-Clause (iii) of Clause (b) of Section 386 Cr. P.C provides that, the appellate Court may in an appeal from a conviction, with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. Having affirmed the conviction, the learned appellate Judge would still need to decide whether he would dismiss the appeal or would bestow his attention to these aspects covered by Section 386(b)(iii) Cr. P.C, viz., whether he would deem it necessary to alter the nature or the extent, or the nature and extent of the sentence, but not so as to enhance the same. Overlooking of Sub-Clause (iii) of Clause (b) of Section 386 Cr. P.C would adversely affect the interests of the accused who had preferred the said appeal to the learned Sessions Judge from conviction. It is therefore necessary that, while maintaining the order of the learned appellate Judge in so far as he affirms the conviction recorded by the learned Additional Chief Metropolitan Magistrate, it would still be necessary to remit the matter to the learned appellate Judge in so far as sentencing aspect is concerned, in order to take note of the provisions contained in Section 386 Cr. P.C
8. The petition is, therefore, allowed. The impugned order is set aside in so far as it relates to setting aside of the sentence imposed by the Trial Court and remitting the matter to the Trial Court for the purpose of imposing sentence afresh. The matter is remitted to the learned appellate Judge to take such decision as he deems fit in accordance with Section 386 Cr. P.C The learned appellate Judge, on the facts and in the circumstances of this particular case, shall do so only after affording an opportunity of being heard to both the parties.