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2010 DIGILAW 335 (KER)

Ayyappa Menon v. Oliver Fernadez

2010-04-09

V.RAMKUMAR

body2010
Judgment : In this unnumbered petition filed under S.482 Cr.P.C., the petitioner who was the accused in S.T.Case No.187 of 2002 on the file of the Judicial First Class Magistrate II, Thiruvananthapuram, seeks to modify the sentence imposed by this Court as per the final order dated 17.6.2008 in Crl.R.P.No.1965 of 2008. The High Court Registry raised an objection regarding the maintainability of this petition and that is how the matter has come up for resolution on the judicial side. 2. The above S.T. case was a prosecution under S.138 of the Negotiable Instruments Act, 1881 (“the N.I. Act” for short). The amount involved in the cheque in question of the year 2001 was Rs.4,50,000/-. The Trial Court convicted the petitioner and sentenced him to imprisonment till the rising of the court and to pay the cheque amount as compensation under S.357(3) Cr.P.C with a default sentence of simple imprisonment for one year. On appeal preferred by the petitioner as Crl. Appeal No.816 of 2005 before the Sessions Court, Thiruvananthapuram, that court as per judgment dated 29.02.2008, dismissed the appeal confirming the conviction entered and the sentence passed by the trial court. It was aggrieved by the appellate judgment dismissing the appeal that the petitioner filed the above revision before this Court under Ss.397 and 401 Cr.P.C. This Court as per final order dated 17.06.2008, disposed of the revision by confirming the conviction and holding that in the light of the decision of the Apex Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya (2008 (1) KLT 851) (SC), default sentence cannot be imposed for the enforcement of an order for compensation under S.357(3) Cr.P.C., and accordingly altered the sentence by imposing the cheque amount of Rs.4,50,000/-as fine under S.138 of the Negotiable Instruments Act. The fine amount was directed to e paid as compensation to the complainant under S.357(1) Cr.P.C. This Court granted seven months’ time to the revision petitioner either to deposit the fine amount in the trial court or directly pay the same to the complainant within the said seven months’ period. This Court reduced the default sentence from 1 year to 3 months. It is the said direction of this Court which is challenged in this petition filed under S.482 Cr.P.C. 3. This Court reduced the default sentence from 1 year to 3 months. It is the said direction of this Court which is challenged in this petition filed under S.482 Cr.P.C. 3. According to the petitioner, this Court by converting the order for compensation under S.357(3) into one of fine and directing payment of the fine amount as compensation under S.357(1), had enhanced the sentence in a revision filed by the accused. Therefore, the direction passed by this Court is, according to the petitioner, contrary to law and liable to be corrected in this petition filed under S.482 Cr.P.C. 4. I cannot fully agree with the above contention of the petitioner. Of course, the prosecution in this case commenced prior to the insertion of S.143 of the N.I. Act and, therefore, as per the law which stood then, the Magistrate could not have imposed a fine exceeding Rs.5,000/- which was the outer limit fixed by S.29 Cr.P.C. (See Bhaskaran v. Balan (1999 (3) KLT 440 (SC). If so, by virtue of the second proviso to S.386(e) Cr.P.C, a court of appeal also could not inflict a punishment greater than what the Magistrate could have inflicted. Since S.386 Cr.P.C is applicable to a Court of revision as well in view of S.401(1) Cr.P.C, this Court also could not have imposed a fine exceeding Rs.5000/-. To that extent, the sentence imposed by this Court can be said to be not authorized by law. But that illegality can be corrected only by the Supreme Court of India in appropriate proceedings on a motion by the petitioner/accused. It is only with effect from 06.02.2003 onwards that magistrates have been invested with the power to impose a fine exceeding the limit prescribed by S.29 Cr.P.C. by virtue of S.143 of N.I. Act and the non-obstante clause therein. In the light of the decision of the Supreme Court in Shankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat (AIR 1970 SC 1), it is doubtful whether the petitioner can in a petition filed under S.482 Cr.P.C challenge the final order passed by this Court in exercise of its revisional jurisdiction. However, I am not dismissing this petition for the above technical reason alone. 5. However, I am not dismissing this petition for the above technical reason alone. 5. It is true that this Court altered the sentence of imprisonment till the rising of the Court to one of fine and directed the petitioner to pay the cheque amount as compensation from out of the fine amount as provided under S.357(1)(b) Cr.P.C. Since the sentence imposed by this Court was only one of fine, the order for compensation passed by the courts below under S.357(3) Cr.P.C naturally had to be substituted by an order for compensation under S.357(1) (b) Cr.P.C because in a case where the sentence passed is one of fine, the compensation could be recovered only from such fine. An order for compensation under S.357(3) Cr.P.C is not part of a sentence nor is it punishment as contemplated by S.53 of the Indian Penal Code. If so, there could be no question of enhancement of sentence when this Court altered the order for compensation under S.357(3) Cr.P.C to one under S.357(1)(b) Cr.P.C. Enhancement of sentence presupposes the existence of a sentence. When there is no sentence, there cannot be any enhancement of sentence. (See AIR 1956 SC 146 – Jayaram Vithopa and another v. State of Bombay). As per the judgments of the courts below, the petitioner was sentenced to imprisonment till the rising of the court and was directed to pay the cheque amount as compensation under S.357(3) Cr.PC. But, this Court did not impose any sentence of imprisonment. Even the sentence of imprisonment till the rising of the Court imposed by the courts below was deleted by this Court. This Court had also reduced the default sentence to 3 months as against one year imposed by the courts below. When the imprisonment awarded is either reduced or taken away and the amount of fine is increased, it does not amount to enhancement of sentence. (See 1986 KLT 413 – Devu v. Excise Circle Inspector). Such being the position, I do not find any reason to entertain this petition which is accordingly dismissed as not maintainable upholding the objection raised by the Registry. Dated this the 9th day of April, 2010.