B. M. GUPTA. J. ( 1 ) "this is the first revision petition except this petition no. other petition is pending against the same order. " 1. That the learned special Magistrate first class Morena passed a conviction judgment against the applicant for two years RI. and a fine of rupees 2 lakhs and 35 thousand rupees in criminal case No. 4349/04 instituted by non- applicant under Section 138 of the Negotiable instrument Act. 2. That the matter was remanded in appeal by the learned sessions judge and later on the non-applicant produced evidence of himself which was cross-examined and in support of his evidence. The affidavits of his two real brothers were also filed in the case who were not called upon for cross-examination in whose presence the money is alleged to the given to the applicant by way of loan. These witnesses are very material in the case to support in the contention of the non-applicant. The learned trial Court was also taken in view the un-crossed testimony of these witnesses and hence case is not proved. 3. That the applicant submitted before the trial Court his evidence and negatived all the story of the complainant and also examined the expert in his defence. Who has clearly stated that the signature on cheque exp. P1 are not in the writing of the applicant. This fact has not been believed by the trial without any sufficient reason. ORDER heard finally at motion stage. Vide impugned order dated 18th December, 2006, passed by learned Sessions Judge Morena in Criminal Appeal No. 189/06, jail sentence imposed on the petitioner under Section 138 of Negotiable Instruments Act has been suspended under section 389 of Cr. P. C. , but at the same time, the learned Judge observed not to suspend the fine sentence of Rs. 2,35,000 imposed on the petitioner in the aforementioned offence. Consequently, petitioner is in custody since 18th December, 2006 because he could not deposit the fine amount. P. C. , but at the same time, the learned Judge observed not to suspend the fine sentence of Rs. 2,35,000 imposed on the petitioner in the aforementioned offence. Consequently, petitioner is in custody since 18th December, 2006 because he could not deposit the fine amount. ( 2 ) WHILE drawing attention at the observation of the Apex Court in the case of stanny Fellix Pinto v. M / s, Jangid Builders Pvt. Ltd. and Another and of this Court in Ramesh Chand v. State of M. P. , Shri pateria, the learned counsel for the petitioner has submitted that the fine sentence also ought to have been suspended by the court below or at the most a part of the fine amount could have been suspended. His another contention is that as per the judgment of conviction, four months imprisonment has been imposed in default of nonpayment of fine. When the jail sentence is suspended, the petitioner has already undergone more than four months period in custody. ( 3 ) CONSIDERING the fact that petitioner is in custody for such a long time merely on default of non-payment of fine, despite his appeal is pending, the contention of Shri pateria deserves to be considered. It will not be out of way to observe that the impugned order is not illegal or erroneous because learned Judge was empowered to pass such order. However, it may be termed as not proper in the aforementioned facts of the case. However, when an appeal against the conviction is pending and the jail sentence has been suspended, if the fine sentence appears onerous, the discretion vested in the Court under Section 389 of Cr. P. C. ought to have been exercised in favour of the petitioner. ( 4 ) CONSEQUENTLY, the revision is partly allowed. The impugned order is modified to the effect that in case the petitioner shall deposit Rs. 1,00,000 as fine amount, his remaining fine sentence will remain suspended under the same terms and conditions imposed vide impugned order. ( 5 ) ACCORDINGLY, this revision is disposed of. Revision allowed accordingly. .