VERY IMPORTANT POINT
For conviction under Section 138 Negotiable Instruments Act, 1881 sentence should be appropriate when the amount covered by the cheque remains unpaid and court should make liberal use of Section 357(3) of Cr.P.C. for awarding appropriate compensation and for imposing sentence in default.

JUDGMENT

Thomas, J.-Leave granted.

2. Appellant in this case is the complainant before the court of 9th Metropolitan Magistrate, Saidapet, Chennai. The offence pitted against the respondent was under Section 138 of the Negotiable Instruments Act. In fact there was two complaints arising out of two sets of cheques which were dishonoured by the drawee bank. The trial Magistrate after holding the respondent guilty of the offence convicted him of the aforesaid offence but sentenced him only to undergo imprisonment till rising of the court and pay a fine of Rs. 5000/- in both cases. Apparently the respondent was happy and therefore he did not prefer any appeal. But the complainant/appellant was unhappy and therefore he preferred two revisions before the High Court on the premise that the sentence was grossly inadequate. He contended before the High Court that the trial magistrate should atleast have invoked the provision under Section 357(3) of the Code of Criminal Procedure (for short the Code).

3. However the learned single judge of the High Court of Madras was not inclined to interfere with the sentence passed on the respondent and therefore he dismissed both the revisions. Nonetheless learned single judge has chosen this opportunity to send a message to the trial magistrates "to keep in mind the object of providing stringent punishment and the guidelines given by the Apex Court in Pankaj Bhai Nagjibhai Patel v. State of Gujarat & Anr. 2001(2) SCC 595". Nor did the High Court invoked Section 357(3) of the Code.

4. Mr. K.V. Viswanathan, learned counsel for the petitioner invited our attention to the following observations made by this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan 1999(7) SCC 510:-

"If a Judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. But the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. The Supreme Court had emphasised the need for making liberal use of that provision. No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the first Class in respect of a cheque which covers an amount of Rs. 5,000/- the Court has power to award compensation to be paid to the complainant."

5. In the said decision this Court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decision of this Court in 1988(4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this Court held as follows :-

"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default." (emphasis supplied)

6. Our attention has been brought to a decision rendered by a single judge of the High Court of Kerala vide Rajendra v. Jose 2001(3) Kerala Law Times 431. Learned Judge has directed that the decision of this Court in Hari Singh v. Sukhbir Singh is not to be followed as this Court laid down the said legal proposition without adverting to Section 431 of the Code. The Single Judge o