Radhakrishnan Nair v. Padmanabhan & Anr.

1. This revision petition is filed by the accused in C.C No. 474/96 on the file of the Judicial First Class Magistrate's Court-II, Thrissur challenging the judgment passed by the trial court on 19-6-1999 as modified by the Sessions Court, Thrissur in Crl. Appeal No. 270/1999 by judgment dated 30-10-1999.

2. The revision petitioner was prosecuted for the offence punishable under Sec. 138 of the Negotiable Instruments Act on the basis of the complaint filed by the complainant, 1st respondent herein. The trial court found him guilty, convicted and sentenced him to pay a fine of Rs. 1,00,000/- in default of payment to undergo S.I for three months and directed payment of fine, if realised, to the complainant being compensation under Sec. 357 of Cr. P.C The accused challenged the judgment before the Sessions Court, Thrissur in Crl. A. No. 270/99. The Sessions Court, Thrissur by judgment dated 30-10-1999 confirmed the finding of guilt and conviction and modified the sentence. Accordingly the appellate court sentenced the accused to undergo imprisonment till rising of the court and to pay Rs. 1,10,000/- as compenstion in default of payment of compensation to undergo S.I for three months. Hence the accused has preferred this revision petition before this court.

3. The counsel for the revision petitioner vehemently contended that the appellate court has no jurisdiction to alter the sentence of fine imposed by the trial court into a sentence of imprisonment and compensation under Sec. 357 of the Cr. P.C He has also submitted that as it is now well settled that the trial Magistrate has no jurisdiction to impose a fine of more than Rs. 5,000/- while convicting and sentencing the accused under Sec. 138 of the N.I Act, the sentence awarded by the trial court is illegal since fine of Rs. 1 lakh is imposed in this case. Therefore, according to him, the appellate court should have modified the sentence by confining the fine amount to Rs. 5,000/-, which is the maximum fine awardable by First Class Magistrate under the provisions of the Cr. P.C

4. The above contentions raised by the revision petitioner are unsustainable. It is clear from Sec. 386 of the Cr. P.C that the appellate court has all the powers to reverse, alter or modify the sentence passed by the trial court while deciding the appeal. In this case both the courts found the revision petitioner guilty concurrently and convicted him. The appellate court has only modified the sentence by invoking the provisions of Sec. 357(4) of the Cr. P.C and instead of imposing sentence of fine awarded by the trial court, the revision petitioner is sentenced to undergo imprisonment till rising of the court and to pay the compensation. Section 357(4) of the Cr. P.C empowers the appellate court or this court to award compensation under Sec. 357(1) of the Cr. P.C Therefore, the power of the appellate court to award compensation cannot be challenged.

5. The further question to be considered is whether the appellate court has got jurisdiction to convert the sentence of fine of Rs. 1 lakh imposed by the trial court into sentence of imprisonment till rising of the court and a compensation of Rs. 1,10,000/- under Sec. 357(1) of the Cr. P.C The contention raised by the revision petitioner is that in view of the recent ruling of the Supreme Court the the trial Magistrate is competent to impose a fine of Rs. 5000/- in view of Sec. 29(2) of the Cr. P.C Therefore, according to him, the sentence awarded by the trial court in this case to pay a fine of Rs. 1 lakh is illegal being without jurisdiction.

6. Though the special statute, Sec. 138 of the Negotiable Instruments Act provided sentence of imprisonment extending to one year and fine extending to twice the cheque amount or with both, in view of the recent authoritative pronouncement of the Supreme Court, the contention that the trial Magistrate has no power to impose a fine of more than Rs. 5000/- cannot be disputed.

7. That error or illegality committed by the learned Magistrate is corrected by the appellate court by reversing the finding of the trial court with regard to the imposition of fine or modifying the same with imprisonment till rising of the court and compensation of Rs. 1,10,000/- under Sec. 357(1) of the Cr. P.C by invoking Sec. 357(4) of the Cr. P.C Section 357(1) does not prescribe any limit with regard to the compensation that may be awarded by the court and the amount of compensation can be fixed by the court taking into consideration of the facts and circumstances in each particular case. Therefore, the power or authority of the appellate court in awarding compensation or fixing the quantum of compensation to be awarded in a particular case either by reversing or modifying the sentence originally awarded by the trial court cannot be challenged. Considering the facts and circumstances of the case and the evidence on record it cannot be said that the compensation awarded by the appellate court in this case is either illegal or improper or disproportionate to the guilt of the accused found in the case. Therefore the contention raised by the revision petitioner that the sentence of imprisonment till rising of the court and direction to pay compensation of Rs. 1,10,000/- in this case are either illegal or improper, is also not sustainable.

8. The only further contention that requires consideration is whether the direction by the appellate court to undergo imprisonment for three months in default of payment of compensation is legal and sustainable.

9. Section 431 of the Cr. P.C provides that any money other than a fine payable by virtue of any order made under the Code of Criminal Procedure, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. Section 421 of the Code provides for recovery of the fine imposed by issue of warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender or by issue of a warrant to the Collector of the District authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both the defaulter.

10. Therefore, it is clear that that part of the sentence awarded by the appellate court imposing default sentence of imprisonment for non-payment of compensation is illegal and unsustainable.

11. In view of what is stated above, the concurrent finding of guilt and conviction entered by the courts below and the award of sentence of imprisonment till rising of the court and direction to pay compensation of Rs. 1,10,000/- by the appellate court as well as the direction of disbursement of the compensation amount on realisation are confirmed. But the direction of the appellate court to undergo S.I for three months in default of payment of compensation is set aside. The amount of compensation awarded by the appellate court is recoverable as provided under the provisions of the Cr. P.C The Crl. R.P is allowed to this extent.