ORDER 1. Heard finally at motion stage. 2. 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 CrPC, but at the same time, the learned 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 13th December, 2006 because he could not deposit the fine amount. 3. 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 [ 2001 (1) Crimes 190 (SC)] and of this Court in Ramesh Chand v. State of M.P. [ 1999 (1) JLJ 223 ] 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 non payment of fine. When the jail sentence is suspended, the petitioner has already under gone more than four months period in custody. 4. 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 maybe 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 CrPC ought to have been exercised in favour of the petitioner. 5. 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. Accordingly, this revision is disposed of.