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2000 DIGILAW 34 (HP)

FATEH DEEN v. BASHIR AHMAD

2000-03-01

M.R.VERMA

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JUDGMENT M.R. Verma, J.—This petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure is directed against the order dated 16.9.1999 passed by the learned Additional Sessions Judge, Solan camp at Nalagarh whereby the execution of sentence of fine imposed on the petitioner-accused (here-in-after referred to as the accused) has not been suspended. 2. I have heard the learned counsel for the parties and have also gone through the relevant records. 3. The undisputed facts of the matter are that the petitioner-accused has been convicted by the learned Sub Divisional Judicial Magistrate, Nalagarh under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) vide judgment dated 30.8.1999 and has been sentenced to simple imprisonment for a period of six months and fine of Rs. 80,000/-. Against he said conviction and sentence the petitioner has preferred an appeal which is pending disposal in the Sessions Court. At the time of filing the appeal the accused preferred an application for suspension of sentence and vide order dated 16.9.1999 the learned Additional Sessions Judge, Solan suspended the execution of the sentence of imprisonment only and that of the fine was not suspended. 4. The grievance of the accused in this petition is that this was a case fit for suspending the execution of the sentence as a whole, that is, including the realisation of the fine which has been imposed by the learned trial Magistrate beyond his powers. 5. It cannot be disputed that a Sub Divisional Judicial Magistrate being a Judicial Magistrate 1st Class for all intents and purposes of awarding sentence is empowered under Section 29 of the Code of Criminal Procedure (hereinafter referred to as the Code) to impose fine only upto the limit of Rs. 5,000/-. Therefore, irrespective of the punishment of imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of cheque or with both as provided under Section 138 of the Act, the learned trial court by virtue of the provisions of Section 29 of the Code could impose fine upto Rs. 5,000/- only. 5,000/- only. If it was thought proper by him to compensate the complainant he could have awarded such amount of compensation as would have been found reasonable and payable to the complainant under sub-section (3) of Section 357 of the said Code. Therefore, the sentence of fine over and above Rs. 5,000/- as imposed is manifestly illegal. 6. The view I have taken hereinabove is fully supported by the ratio in case K. Bhaskaran v. Sankaran Vaidhyan Balan and another, (JT 1999(7) SC 558) wherein the Honble Supreme Court has held as follows: "29. 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 said limit. 30. 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 realised 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. 31. However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this court has emphasised the need for making liberal use of that provision, (Hari Krishan and State of Haryana v. Sukhbir Singh and others, JT 1988 (3) SC 711). 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." 7. In view of the above settled legal proposition, non-suspension of the sentence of fine in the sum of Rs. 80,000/- till the disposal of the appeal is unjustifiable and illegal and the interest of justice would have been met if the accused was directed to deposit only a sum of Rs. In view of the above settled legal proposition, non-suspension of the sentence of fine in the sum of Rs. 80,000/- till the disposal of the appeal is unjustifiable and illegal and the interest of justice would have been met if the accused was directed to deposit only a sum of Rs. 5,000/- and the realisation of the remaining amount of fine ought to have been suspended. 8. In view of the above, the impugned order is modified to the extent that instead of depositing the fine in the sum of Rs. 80,000/ - the accused shall deposit a sum of Rs. 5,000/- and shall furnish the bonds as directed by the learned Additional Sessions Judge and on deposit of amount and furnishing of the bonds as aforesaid the sentence awarded to the accused-petitioner shall remain suspended till the disposal of the appeal by the Sessions Court. 9. The Revision Petition is disposed of in terms of the above orders. Petition disposed.