S MANJUNATH Vs. L SURESH

JUDGEMENT

(1.) ON the complaint of the petitioner under section 200 of the Cr. P. C. , the respondent came to be prosecuted before the learned xvi Additional Chief Metropolitan magistrate, Bangalore, for an offence under section 138 of the Negotiable Instruments act, 1881 ('n. I. Act' for short), and eventually by the judgment and order dated 5-6-1999, came to be convicted of the said offence, and sentenced to a fine of rs. 60,000/- in default, to SI for six months. Out of the fine amount, if recovered, as sum of Rs. 58,000/- was ordered to be paid to the petitioner-complainant as compensation. It may be mentioned in this context that the cheque concerned was for a sum of rs. 55,000/ -. When the respondent took up the matter in appeal before the learned sessions Judge, the Appellate Court affirmed the conviction. But, so far zts sentence is concerned, referring to the decision of the Supreme Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, the learned Appellate Judge held that the learned Trial Judge could not have imposed fine of more than Rs. 5,000/-, and that, therefore, the Trial Court, in imposing the fine of Rs. 60,000/-, had acted illegally. The Appellate Judge, while thus affirming the conviction, set aside the sentence and remitted the matter to the Trial Court for the purpose of imposing sentence in accordance with law after hearing both the sides. The petitioner-complainant, being aggrieved with this part of the order of the learned appellate Judge relating to sentence, has come up in revision under Section 397 of the cr. P. C.

(2.) THE respondent, - though served with notice, has remained absent. I have heard Sri somashekara Reddy, learned Counsel for the petitioner.

(3.) IN the light of what the Supreme Court has said in Bhaskaran's case referred to above, the Appellate Judge's order would have been right had the Trial Judge been a magistrate of the First Class. In the case the supreme Court was considering the position was this: The Trial Judge was the Judicial magistrate of the First Class. The learned magistrate had acquitted the accused of the offence punishable under Section 138 of the n. I. Act. The complainant questioned the said order of acquittal by way of an appeal before the Kerala High Court. The High court allowed the appeal, set aside the order of acquittal, and convicted the accused-respondent of the said offence under section 138 of the N. I. Act and sentenced him to imprisonment for six months, and to a fine of Rs. 1,00,000/ -. The accused then approached the Supreme Court. The supreme Court found that the High Court had rightly held the accused guilty of the offence under Section 138 of the N. I. Act. So far as the punishment is concerned, this is what the Supreme Court said: