Rajey vs State of U.P. and Another

G.S.N. Tripathi, J.—This revision has been directed against the concurrent finding of both the Courts below holding the revisionist guilty on a charge u/s 420, I.P.C.

The learned IIIrd Addl. Chief Judicial Magistrate, Meerut while convicting the accused, sentenced him to a 4 months'' R.I. on the charge u/s 420, I.P.C. and directed him to pay a sum of Rs. 1,000 as fine. On failure to pay the fine, one month''s additional R.I. had to be undergone by the accused, vide the order dated 11.11.1994, passed in Criminal Case No. 4144 of 1994, Ami Chand v. Raje and Ors..

Aggrieved against the order, the revisionist accused filed a Criminal Appeal No. 72 of 1994, before the learned Xth Addl. Sessions Judge, Meerut, who by his order dated 8.10.1996, maintained the conviction. However, he converted the sentence of 4 months'' R.I. as ordered by the learned Addl. C.J.M., by ordering that the Appellant shall undergo imprisonment till the rising of the Court. But the sentence of fine was enhanced to Rs. 10,000. On failure to pay the fine, one month''s additional R.I. was awarded. A sum of Rs. 9,000 out of this fine was ordered to be paid to the complainant Ami Chand.

Aggrieved against these orders passed by the Courts below, the present revision has been filed.

This revision has been admitted only on the point of sentence.

The main contention of the learned Counsel for the revisionist is that u/s 386, Code of Criminal Procedure, the appellate court in an appeal from conviction can:

(h) (i) ...

(ii) ...

(iii) with or without altering the finding, alter the nature of the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(Emphasis provided)

The learned Counsel has urged that virtually the learned Addl. Sessions Judge by his appellate order has enhanced the sentence.

I have heard learned Counsel for the parties. I find that there is absolutely no force in this petition and it deserves to be dismissed.

The case proved against the accused is that he has deceived the complainant Ami Chand by receiving a Bank Draft in a sum of Rs. 10,000 and misappropriated the same. Both the courts have thus recorded a finding that the revisionist is guilty of the charge u/s 420, I.P.C. and have awarded different sentences as noted above. The learned Counsel has rightly and justly conceded in teeth of those findings of fact resulting into the conviction of the accused at the hands of been the Courts below. Now the question is whether the order passed by the learned Addl. Sessions Judge amounts to enhancement of the sentence. In my view, it is not.

Had the conviction as ordered by the learned Magistrate been maintained, the accused would have been forced to undergo 4 months'' R.I. The learned Addl. Sessions Judge has saved him from going to jail. A person''s liberty is many times more important than the fine in a sum of rupees, whatsoever they may be. Human liberty as guaranteed under Article 21 of the Constitution, is of paramount importance. No amount of monetary compensation can adequately compensate the victim. That is why invariably the learned Counsel, in all cases, pray that the fine may be enhanced. But the incarceration in jail should be avoided. The courts normally accede to such requests. Of course, for a poor man, money will be more important and undergoing sentence will be comparatively easier for him to bear than the payment of money itself. in the shape of fine. But that is a question of fact. That has not been either shown or proved in the present case. That is why, I think that by ordering the accused to undergo imprisonment only upto rising of the court (which is nothing but a symbol of imprisonment but in actuality, it is not an imprisonment at all), the learned Addl. Sessions Judge has accordingly saved the accused from undergoing imprisonment for 4 months. But he has compensated the same by enhancing the sentence of fine, which is not a substantive sentence in itself as it has been awarded in lieu of imprisonment. Hence, it cannot be said that the learned Addl. Sessions Judge has enhanced the sentence, rather, he has converted the sentence of imprisonment into a sentence of fine. The Sessions Judge and the High Court have unlimited jurisdiction to pass orders, as they deem fit and proper in the circumstances of the case and the Sessions Judge has, undoubtedly, power to award fine of Rs. 10,000 as done by him. Here, it will not be considered that the learned Magistrate could not award Rs. 10,000, as his Jurisdiction is limited to Rs. 5,000 u/s 29(2), Code of Criminal Procedure. In fact, the Chief Judicial Magistrate and the Addl. Chief Judicial Magistrate have the same powers. Therefore, there is no limit to the amount of fine, which can be awarded by the learned Addl. Chief Judicial Magistrate as clarified in Section 29(1), Code of Criminal Procedure as in Section 29(2), Code of Criminal Procedure, the jurisdiction of ordinary Magistrate Ist Class has been defined with regard to fine, which should not exceed Rs. 5,000. But as regards the jurisdiction of the C.J.M., there is no limitation on the point of fine.

Apart from that, I find that the learned Addl. Sessions Judge has not enhanced the sentence. He has simply converted the sentence of imprisonment into a sentence of fine, hence the question of any illegality, whatsoever, as alleged by the learned Counsel does not arise.

In this background, the ruling relied upon by the learned Counsel, in the case of Mahesh Chandra v. State 1984 CriLJ 633, does not apply. In that case, before the High Court, the Magistrate convicted the Appellants under Sections 9 and 10 of the Prize Companies Act, 1955 and sentenced the accused to a fine of Rs. 1,000. The conviction was maintained in appeal. But the learned Sessions Judge reduced the fine to Rs. 500 u/s 9, read with Section 4 of the Act and Rs. 100 u/s 11 of the Act. In case of non-payment of fine, the accused were ordered to undergo three months'' R.I. each, whereas, the learned Magistrate had awarded only 20 days'' R.I. in case of non-payment of fine. Thus in this case the learned Addl. Sessions Judge, has, admittedly enhanced the fine. But that was not a case of conversion of fine into a sentence of imprisonment or vice versa. The learned Magistrate had provided only 20 days'' R.I., whereas, the learned Sessions Judge awarded 3 months'' imprisonment. So that was definitely a case of different nature. That does not help the revisionist.

After having considered the arguments advanced by the learned Counsel for the parties, I find that this revision has absolutely no force and it is accordingly dismissed.