Brijesh Kumar Sharma Vs. Ramprakash Kulshrestha - Court Judgment

Excerpt:
criminal - reduction of - fine - section 138 of negotiable instruments act - respondent filed complaint against petitioner for recovery of amount under section 138 of act - petitioner convicted by trial court -- petitioner filed appeal before court of session - appeal allowed in respect to sentence of imprisonment as same was reduced but not in respect to fine - hence, present petition - held, as per section 138(1) of act, amount of fine may be extended upto double amount of cheque amount - however, in present case, amount of fine was much more than the double amount of cheque - imposition of such amount of fine appears was abuse of the process of court and must be modified as per provisions - accordingly, petition allowed and amount of fine reduced - - to understand it in a better way, perusal of the provision will be beneficial, which is quoted hereinbelow: the trial court can suspend a sentence of jail only, while the appellate court can suspend whole of the part of the sentence, which may include jail as well as the fine sentence.orderb.m. gupta, j.1. the instant petition has been filed by the petitioner impugning the order dated 4.12.2006 passed by session judge, morena in criminal appeal no. 183/06. vide impugned order the learned judge, while considering an application under section 389 of cr.p.c. filed on behalf of the petitioner for suspension of the sentence awarded by the court below, has observed that only sentence of imprisonment can be suspended by him and not the fine imposed by the court below and directed that amount of fine of rs. 1,35,000/- is to be deposited by the petitioner. it is further directed by him that the jail sentence of imprisonment imposed on the petitioner shall remain suspended on his furnishing his personal bond of rs. 5,000/-along with surety for the condition that he will remain present in the appellate court during the hearing of the appeal. imposing the condition of depositing the amount has been assailed by this petition on behalf of the petitioner.2. it is submitted by mr. jain, the learned counsel appearing on behalf of the petitioner, that the petitioner is in jail since 28.11.2006 only because, that he could not deposit the aforementioned amount. in support he has drawn the attention of the court on a judgment of the apex court in the case of pankajbhai nagjibhai patel v. state of gujarat and anr. iii : 2001crilj950 and has submitted that the learned magistrate was not empowered to impose fine amount of more than rs. 10,000/- as provided by section 29(2) of cr.p.c. imposing a fine of rs. 1,35,000/- by the learned magistrate vide the impugned judgment dated 28.11.2006, is thus beyond jurisdiction and is illegal. considering the period of custody of the petitioner the aforementioned condition of depositing the amount, ought to be set aside.3. mr. v.d. sharma, the learned counsel appearing on behalf of the respondent, has submitted that as provided by section 138 of negotiable instruments act (hereinafter referred to as 'the act'), fine may extend to twice the amount of the cheque and thus the fine amount as imposed is not without jurisdiction.4. the contentions as raised by mr. v.d. sharma, has been completely answered by the apex court in the case of pankajbhai (supra) in which a fine of rs. 83,000/- was imposed on conviction under section 138 of the act by the magistrate. while concluding the dispute, the apex court in paras 8, 15 and 17 has observed as quoted hereinbelow:8. thus, the non obstante limb provided in section 142 of the n.i. act is not intended to expand the powers of a magistrate of first class beyond what is fixed in chapter iii of the code. section 29, which falls within chapter iii of the code, contains a limit for a magistrate of first class in the matter of imposing a sentence as noticed above i.e. if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed rs. 5,000/-.this limit of rs. 5,000/- has now been extended upto rs. 10,000/- vide section 5(a) of the cr.p.c. (amendment) act, 2005.15. in this context, we may also point out that if a magistrate of first class, thinks that the fact situation in a particular case warrants imposition of a sentence more severe than the limit fixed under section 29 of the code, the legislature has taken care of such a situation also. section 325 of the code is included for that purpose.17. in our view this question does not now pose any practical difficulty. whenever a magistrate of the first class feels that the complainant should be compensated he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in section 357 of the code.(emphasis supplied)no doubt as provided under section 138(1) of the act the fine amount may extend as mentioned above i.e. double the amount of cheque; but that is always subject to maximum limit of the powers of the magistrate/judge concerned who is imposing a sentence of fine. in case imposing more fine is required, then the jurisdictional limit, as prescribed under section 29(2) of cr.p.c, the case is to be dealt with as provided under section 325 as it is laid down, by the apex court in para 15 as quoted hereinabove. but in no case the magistrate can exceed the above limit. considering the nature of the offence, the apex court has also observed in para 17, that as provided under section 357 of cr.p.c, compensation can be imposed which has no limit as provided in sub-section (3) of the section.5. coming to the present case, on perusal of the impugned order, it appears, that the learned judge haying appellate jurisdiction, while disposing of an application under section 389 of cr.p.c, has observed in para 5, that under the provision the sentence of fine cannot be suspended by him i.e. by the appellate court. this observation in the order is not correct. to understand it in a better way, perusal of the provision will be beneficial, which is quoted hereinbelow:389(1) pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail, or on his own bond.(2) ...(3) where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the court shall-(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellate court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.(emphasis supplied)on perusal of the provision, particularly the highlighted part of sub-section (1) and sub-section (3), it appears that the powers of the trial court and the appellate court are different. the trial court can suspend a sentence of jail only, while the appellate court can suspend whole of the part of the sentence, which may include jail as well as the fine sentence.6. coming to the prayer for which the petition has been filed, that the condition of depositing the amount of rs. 1,35,000/- has only been prayed to be set aside. as observed hereinabove the imposition of such amount of fine appears to be an abuse of the process of the court, which has been further enhanced/aggravated by the aforesaid observation of the appellate court. in view of this, invoking the inherent powers to set at naught this abuse of the process of the court, appears to be justified.7. consequently, the petition is allowed. the aforementioned condition is set aside.

Judgment:
ORDER

B.M. Gupta, J.

1. The instant petition has been filed by the petitioner impugning the order dated 4.12.2006 passed by Session Judge, Morena in Criminal Appeal No. 183/06. Vide impugned order the learned Judge, while considering an application under Section 389 of Cr.P.C. filed on behalf of the petitioner for suspension of the sentence awarded by the Court below, has observed that only sentence of imprisonment can be suspended by him and not the fine imposed by the Court below and directed that amount of fine of Rs. 1,35,000/- is to be deposited by the petitioner. It is further directed by him that the jail sentence of imprisonment imposed on the petitioner shall remain suspended on his furnishing his personal bond of Rs. 5,000/-along with surety for the condition that he will remain present in the Appellate Court during the hearing of the appeal. Imposing the condition of depositing the amount has been assailed by this petition on behalf of the petitioner.

2. It is submitted by Mr. Jain, the learned Counsel appearing on behalf of the petitioner, that the petitioner is in jail since 28.11.2006 only because, that he could not deposit the aforementioned amount. In support he has drawn the attention of the Court on a judgment of the Apex Court in the case of Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr. III : 2001CriLJ950 and has submitted that the learned Magistrate was not empowered to impose fine amount of more than Rs. 10,000/- as provided by Section 29(2) of Cr.P.C. Imposing a fine of Rs. 1,35,000/- by the learned Magistrate vide the impugned judgment dated 28.11.2006, is thus beyond jurisdiction and is illegal. Considering the period of custody of the petitioner the aforementioned condition of depositing the amount, ought to be set aside.

3. Mr. V.D. Sharma, the learned Counsel appearing on behalf of the respondent, has submitted that as provided by Section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act'), fine may extend to twice the amount of the cheque and thus the fine amount as imposed is not without jurisdiction.

4. The contentions as raised by Mr. V.D. Sharma, has been completely answered by the Apex Court in the case of Pankajbhai (supra) in which a fine of Rs. 83,000/- was imposed on conviction under Section 138 of the Act by the Magistrate. While concluding the dispute, the Apex Court in paras 8, 15 and 17 has observed as quoted hereinbelow:

8. Thus, the non obstante limb provided in Section 142 of the N.I. Act is not intended to expand the powers of a Magistrate of First Class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of First Class in the matter of imposing a sentence as noticed above i.e. if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed Rs. 5,000/-.

This limit of Rs. 5,000/- has now been extended upto Rs. 10,000/- vide Section 5(a) of the Cr.P.C. (Amendment) Act, 2005.

15. In this context, we may also point out that if a Magistrate of First Class, thinks that the fact situation in a particular case warrants imposition of a sentence more severe than the limit fixed under Section 29 of the Code, the legislature has taken care of such a situation also. Section 325 of the Code is included for that purpose.

17. In our view this question does not now pose any practical difficulty. Whenever a Magistrate of the First Class feels that the complainant should be compensated he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in Section 357 of the Code.

(Emphasis supplied)

No doubt as provided under Section 138(1) of the Act the fine amount may extend as mentioned above i.e. double the amount of cheque; but that is always subject to maximum limit of the powers of the Magistrate/Judge concerned who is imposing a sentence of fine. In case imposing more fine is required, then the jurisdictional limit, as prescribed under Section 29(2) of Cr.P.C, the case is to be dealt with as provided under Section 325 as it is laid down, by the Apex Court in para 15 as quoted hereinabove. But in no case the Magistrate can exceed the above limit. Considering the nature of the offence, the Apex Court has also observed in para 17, that as provided under Section 357 of Cr.P.C, compensation can be imposed which has no limit as provided in Sub-section (3) of the section.

5. Coming to the present case, on perusal of the impugned order, it appears, that the learned Judge haying appellate jurisdiction, while disposing of an application under Section 389 of Cr.P.C, has observed in para 5, that under the provision the sentence of fine cannot be suspended by him i.e. by the Appellate Court. This observation in the order is not correct. To understand it in a better way, perusal of the provision will be beneficial, which is quoted hereinbelow:

389(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail, or on his own bond.

(2) ...

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,

order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(Emphasis supplied)

On perusal of the provision, particularly the highlighted part of Sub-section (1) and Sub-section (3), it appears that the powers of the Trial Court and the Appellate Court are different. The Trial Court can suspend a sentence of jail only, while the Appellate Court can suspend whole of the part of the sentence, which may include jail as well as the fine sentence.

6. Coming to the prayer for which the petition has been filed, that the condition of depositing the amount of Rs. 1,35,000/- has only been prayed to be set aside. As observed hereinabove the imposition of such amount of fine appears to be an abuse of the process of the Court, which has been further enhanced/aggravated by the aforesaid observation of the Appellate Court. In view of this, invoking the inherent powers to set at naught this abuse of the process of the Court, appears to be justified.

7. Consequently, the petition is allowed. The aforementioned condition is set aside.