Jitesh Kumawat vs Ashok Kumar and Another

H.R. Panwar, J.—This criminal revision petition u/s 397 Cr. P.C. is directed against the judgment and order dated 27.11.2002 passed by Special Judge, SC/ST (Prevention of Atrocities Cases), Udaipur (for short ''the appellate Court'' hereinafter) in Criminal Appeal No.62/2000, whereby the appeal filed by the petitioner against the judgment and order dated 25.8.2000 passed by Judicial Magistrate No. 1 (South) Udaipur (for short ''the trial court'' hereinafter) in Criminal Case No. 188/99 was dismissed and conviction and sentence awarded by the trial court was affirmed. Aggrieved by the judgment and orders impugned, the petitioner has filed the instant revision petition.

I have heard learned counsel for the parties. Perused the judgment and order of the appellate court as well as of the trial court. I have carefully gone through the record of the trial court.

The facts emerging from the record are that the petitioner issued a Cheque No.896221 in favour of non-petitioner No. 1 against the amount which the petitioner took from him as loan. The said cheque was presented in the bank, however, the same was dishonored with the endorsement that the petitioner has insufficient fund in his bank account. By a notice dated 30.12.1998, the non-petitioner demanded the cheque amount. The said notice was served on 7.1.1999. Despite service of notice, the petitioner failed to pay the amount within stipulated period of 15 days. On expiry of stipulated 15 days period, a complaint was filed by the non-petitioner No.l u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act'' hereinafter). The non-petitioner No.l Ashok Kumar appeared as a witness and produced the cheque Ex.P-1, cheque returning memo Ex.P-2 and notice Ex.P-3. The petitioner made statement u/s 313 Cr. P.C. and denied the allegation.

The trial court on appreciation of the evidence on record came to the conclusion that non-petitioner has proved the case beyond reasonable doubt against the petitioner for the offence u/s 138 of the Act and accordingly he was convicted for the said offence and sentenced to one year simple imprisonment and a fine of Rs. 1,25,000/-, in default of payment of fine to further undergo 3 months imprisonment. It was further directed that out of the fine amount of Rs. 1,25,000/-, a sum of Rs. 1,20,000/- be paid to the non-petitioner No. 1 as compensation. The judgment and order passed by the trial court was challenged by the petitioner before the appellate court. The appellate court on re-appreciation of the evidence came to the conclusion that non-petitioner No. 1 has proved his case beyond reasonable doubt against the petitioner and accordingly the appeal filed by the petitioner was dismissed and conviction and sentence passed by the trial court was affirmed.

Learned counsel for the petitioner submits that there is concurrent finding of fact holding the petitioner guilty of the offence u/s 138 of the Act, but both the courts below fell in error in passing the sentence of fine of Rs. 1,25,000/-. Learned counsel further submits that proviso to Section 142 of the Act clearly provides that the Magistrate to pass sentence of imprisonment for a term not exceeding one year and a fine of Rs.5000/-. Sub-section (2) of Section 29 Cr. P.C. clearly provides that the Court of Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. Thus, there is clear rider over the Magistrate while passing the sentence of fine that the Magistrate shall not pass a sentence of fine exceeding Rs.5000/-. The outer limit of sentence of fine permissible to be imposed by the Judicial Magistrate is Rs.5000/-. The contention of the learned counsel for the petitioner is, therefore, worth acceptance.

In view of clear legal provision, i.e., Proviso to Section 143 of the Act and subsection (2) of Section 29 Cr. P.C. the order passed by the trial court and affirmed by he appellate court to the extent of passing sentence of fine beyond Rs. 5000/- is without jurisdiction and therefore, deserves to be modified.

Consequently, the revision petition is partly allowed. The conviction and substantive sentence of imprisonment passed by the trial court and affirmed by the appellate court against the petitioner for the offence u/s 138 of the Act is hereby maintained, however, the order passing sentence of fine amounting to Rs. 1,25,000/ - is modified and instead a sentence of fine of Rs.5000/- is imposed, in default of payment of fine, the petitioner shall further undergo 15 days simple imprisonment.