Karnataka High Court
Mrs. Shaila P. Prabhu vs Nagendra K. Mallya And Anr. on 23 December, 2005
Equivalent citations: I(2007)BC377, 2006CRILJ1554, 2006(3)KARLJ649, AIR 2006 (NOC) 533 (KAR), 2006 CRI. L. J. 1554, 2006 (3) ALL LJ NOC 489, 2006 (2) AIR KANT HCR 19, 2006 ALL MR(CRI) 73 JS, (2006) 1 KCCR 366, (2006) 3 KANT LJ 649, (2007) 1 BANKCAS 377, (2006) 3 ALLCRILR 622, (2007) 1 NIJ 75, (2006) 2 RECCRIR 951, (2006) 3 CURCRIR 372
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. The petitioner herein who is appellant in Criminal Appeal No. 1407/2005 pending on the file of the learned Additional District and Sessions Judge/Fast Track Court Hall No. 7, Bangalore city has sought for setting aside/modification of the order dated 8-11-2005 passed by the said Court, by which, a condition is imposed on the petitioner to deposit 25% of the cheque amount, while suspending the sentence passed by the trial Court.
2. The petitioner herein is convicted in C.C. No. 15062 of 2003 by the 19th Additional Chief Metropolitan Magistrate, Bangalore by the Judgment and order dated 28-10-2005 for the offence punishable Under Section 138 of the Negotiable Instruments Act. She is sentenced to pay fine of Rs. 90,00,000/- and to undergo simple imprisonment for two years. Out of the fine amount, a sum of Rs. 89,00,000/- is ordered to be paid to the complainant as compensation. It is relevant to mention here itself that the amount involved in the cheque is Rs. 65,00,000/-. Against the said judgment and order of conviction, the petitioner herein has filed Criminal Appeal No. 1407/2005. The order of suspension of sentence passed by the appellate Court in said criminal appeal reads thus :
Appellant counsel is present. Respondent is present. Sri. M. S. B. filed power for respondent.
Heard.
The execution of sentence passed in C.C. No. 15062/2003 is suspended subject to deposit of 25% of the cheque amount within one month from the date of order and subject to execution of bond for Rs. 50,000/-with two solvent sureties, before trial Court and report compliance.
Petitioner, being aggrieved by the aforesaid order of imposition of condition to deposit 25% of the cheque amount has preferred this petition. Though the matter is listed for orders on I.A.-I, the matter is argued for admission.
3. Smt. Nalini Chidambaram, learned senior counsel appearing on behalf of the petitioner, placing reliance on the Judgment of the Apex Court in the case of Pankajbhai Najibhai Patel v. State of Gujarat and Anr. submitted that the judgment and order of conviction and sentence passed by the trial Court is without jurisdiction, inasmuch as, the Magistrate cannot impose fine in excess of Rs. 5,000/-. Secondly she submitted that the appellate Court could not have imposed the aforesaid condition requiring the appellant-petitioner herein to deposit 25% of the cheque amount, as the order of the trial Court does not fall Under Section 357(3) of Cr.P.C.
4. In support of her first contention, learned Senior Advocate has drawn the Court's attention to Section 29(2) of the Code of Criminal Procedure ('Code' for short) for the proposition that the Judicial Magistrate First Class has no jurisdiction to impose a sentence of fine exceeding Rs. 5,000/-. It is submitted that if the Judicial Magistrate First Class wants to impose a more severe sentence of fine then he shall follow the procedure prescribed under Section 325(1) of the 'Code'. In this regard, the judgment of the Apex Court referred supra is pressed into service.
5. In the case on hand, the Judgment and Order of conviction and sentence is passed by the Additional Chief Metropolitan Magistrate, Bangalore and not by the Judicial Magistrate of First Class. At this stage, it is beneficial to look into the provision of Section 143(1) of the Negotiable Instruments Act 1881, which reads thus :
143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials :
Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees.
(Underline by me)
6. Thus it is clear from a combined reading of Section 29(2) of Cr.P.C. and Section 143 of the Negotiable Instruments Act that the Metropolitan Magistrate can also try the cases falling Under Section 138 of Negotiable Instruments Act and that he has got jurisdiction to impose the sentence of fine exceeding Rs. 5,000/-. As aforesaid, the trial Court in this case, is a Court of Metropolitan Magistrate and it is within the jurisdiction of Metropolitan Magistrate to try the cases falling Under Section 138 of N. I. Act and to pass sentence imposing fine exceeding Rs. 5,000/-.
7. In this context, it is relevant to mention here itself that Section 143 of the Negotiable Instruments Act is inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 with effect from 6-2-2003. Thus, from that date onwards, even the Judicial Magistrate First Class may pass sentence of fine exceeding Rs. 5,000/-. In view of conferring of the special jurisdiction or powers on the Magistrate of First Class in the matter of awarding sentences by inserting Section 143 of N. I. Act, the limitation stipulated in Section 29(2) of Cr.P.C. is obviated. Similar provisions are also incorporated in Section 12 of the Essential Commodities Act, Section 36 of the Drugs and Cosmetics Act and Section 21 of the Prevention of Food Adulteration Act (these instances are only illustrative and not exhaustive). Thus, it is clear that even the Magistrate of First Class may impose fine exceeding Rs. 5,000/- for the offence punishable Under Section 138 of N. I. Act, after the aforesaid amendment.
8. Coming to the second contention of the petitioner, it is relevant to note the relevant Sub-sections of Section 357 of the 'Code' which read thus :
357. Order to pay compensation :- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing Judgment, order the whole or any part of the fine recovered to be applied.
(a) x x x x x
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) x x x x x (d) x x x x x
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if any appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing Judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused has been so sentenced.
(4) An order under this section may also be made by an appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) x x x x x It is also relevant to reproduce the operative portion of the Judgment and Order of conviction and sentence passed by the trial Court in this regard which reads as under :
ORDER Acting Under Section 255(2) of Cr.P.C, accused is convicted and sentenced to pay fine of Rs. 90,00,000/- and also to undergo simple imprisonment for two years. In default of payment of fine shall undergo simple imprisonment for six months for the offence punishable Under Section 138 of Negotiable Instruments Act.
If in case the fine amount is realised, a sum Of Rs. 89,00,000/- is awarded as compensation under Section 357(3) of Cr.P.C. to the complainant.
9. From the aforesaid order it is clear that the sentence of fine is also imposed by the trial Court along with sentence of imprisonment. Thus, it shall be lawful for the trial Court to direct that certain sums of amount of fine, if realised, shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C. However, though the trial Court has mentioned in the aforesaid operative portion of the order that an amount of Rs. 89,00,000/- is awarded as compensation Under Section 357(3) of Cr.P.C, it should be construed that it is the compensation awarded Under Section 357(1)(b) of the Cr.P.C. Mere mentioning of wrong provision by the trial Court itself will not vitiate the order of the trial Court. Be that as it may, as the appeal is still pending for adjudication before the appellate Court, I do not wish to comment anything more on the said point.
10. There cannot be any dispute that the appellate Court may impose reasonble conditions while suspending the sentence. In the case on hand, the amount involved in the cheque is Rs. 65,00,000/- and the amount of fine imposed on the petitioner is Rs. 90,00,000/-. Thus, the condition imposed by the Sessions Court on the appellant (petitioner herein) in criminal appeal to deposit 25% of the amount involved in the cheque cannot be termed as unreasonable under the facts and circumstances of the case. Moreover, even if the amount is deposited by the petitioner, the same cannot be paid to the complainant-respondent herein during the pendency of the appeal, as the same is prohibited Under Section 357(2) of Cr.P.C. Under the said provision i.e., Section 357(2) of Cr.P.C. no payment shall be made to the complainant or any person as ordered by the trial Court before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. Thus, what is prohibited is the actual payment of amount of compensation to the complainant during pendency of appeal. However, Section 357(2) does not prohibit the appellate Court to impose a condition while suspending the sentence, that the appellant shall deposit certain portion of the fine or compensation, as ordered by the trial Court.
11. Thus the discretionary order, which is impugned in this petition passed by the Fast Track Court, cannot be said to be illegal or without jurisdiction under the facts and circumstances of the case. Consequently, the petition is liable to be dismissed. However, having regard to the quantum of amount required to be deposited and the hardship pleaded by the petitioner in this petition, this Court deems it just and proper to extend time to deposit the amount to certain extent. Hence, the following order is ma'de.
ORDER The criminal petition is, therefore, dismissed. However, time to deposit the amount as ordered by the Sessions Court is extended for a further period of three months from today.