Decided on December 04,2003

THOMAS Appellant
KERALA STATE Respondents


- (1.) Petitioner was the accused in ST 53/94 on the file of the First Class Magistrate Court, Pala. He was found guilty under S.138 of the Negotiable Instruments Act and convicted and sentenced to undergo simple imprisonment for six months and also to pay a fine of Rs. 20,000 in default simple imprisonment for 3 months. It was further directed that if the fine amount is paid, Rs. 15,000 be given as compensation to the complainant. The Sessions Court found that Magistrate Court cannot impose a fine exceeding Rs. 5,000. The Sessions Court upheld the conviction but set aside fine of Rs. 20,000 of the Magistrate and modified the sentence to pay of compensation Rs. 15,000 only under S.357(3) of the CrPC. Admittedly the petitioner did not pay the same. Now the contention of the petitioner is that the impugned order cannot be executed by arrest warrant if the judgment cannot be complied with and compensation can be realised only by following revenue recovery proceedings. This Court feels that the judgment of the appellate Court is not correct, as when a person is found guilty and convicted, it is obligatory on the Court to impose the sentence of imprisonment or fine. S.138 of the Negotiable Instruments Act reads as follows : - "138. Dishonour of cheque for insufficiency, etc. of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both."
(2.) Here, neither the sentence of imprisonment nor fine was imposed. Therefore, suo motu notice is to be issued for revision of the appellate judgment (Annexure - A). Learned counsel appearing for the petitioner takes notice in the revision petition. Post suo motu revision petition during last week of January, 2004 along with the Crl. M.C. In the meanwhile, parties are free to settle the matter.;

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