JUDGMENT - TAHILRAMANI V.K., J.:---Heard the learned Advocate for the petitioner and learned Advocate for the complainant-respondent No. 1. Rule. By consent, rule is made returnable forthwith.

2. A complaint came to be filed by respondent No. 1 against the present petitioners and one other under section 138 of Negotiable Instruments Act. All the petitioners came to be convicted by judgment and order dated 15th January, 2002 passed by the learned Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai. By the said order, the petitioners were directed to pay a fine of Rs. 5000/- in default to suffer S.I. for one month. The petitioner Nos. 2 and 3 were sentenced to suffer R.I. for two months. By the said order, all the petitioners were further directed to collectively pay compensation of Rs. 1 lakh to the complainant in view of the provisions of section 357 of Cri.P.C.

3. The petitioners preferred Criminal Appeal No. 122 of 2001 against the judgment and order dated 15th January, 2001 passed by the learned Metropolitan Magistrate. The Addl. Sessions Judge, Gr. Mumbai, dismissed the criminal appeal by judgment and order dated 24-6-2002. Hence, the present writ petition.

4. The learned Advocate for the petitioners has contended that when fine is imposed, the compensation if any, can only be out of fine which has been imposed on the accused. Thus, he has contended that both fine and compensation cannot be separately imposed on an accused person. In support of his contention, he has placed reliance on sub-sections (1)(b) and (3) of section 357 of Cri.P.C. He has also placed reliance on the decision of the Apex Court reported in A.I.R. 1977 S.C. 1323 (Palaniappa Gounder v. State of Tamil Nadu)1, in support of his contention that if fine and compensation are awarded the compensation can only come out of fine. I find considerable merit in the submission made by the learned Advocate for the petitioners. No doubt, in view of section 357 of Cri.P.C. besides imprisonment a fine can be awarded by itself or compensation can be awarded by itself but if fine and compensation are both awarded, the compensation can be awarded only out of the fine amount. Thus, compensation and fine if awarded together the compensation, if any, would have to be paid out of the fine amount.

5. Though the power of a Magistrate in respect of imposition of fine is restricted to Rs. 5,000/-. As far as compensation by itself in the absence of fine is concerned as envisaged by sub-section (3) to section 357 Cri.P.C. there is no upper limit imposed on the Magistrate. Thus, the Magistrate can impose any amount of compensation even exceeding Rs. 5,000/- in case the Magistrate imposes a sentence of which fine does not form a part. Useful reference may be made to the decision of the Apex Court reported in 2000(5) Bom.C.R. (S.C.)178 : 2000 Bank.J. (S.C.)200 1845 in the case of (K. Bhaskaran v. Sankaran Vaidhyan Balan and another)2. The said case was also under sections 138 and 142 of Negotiable Instruments Act. The power of the Magistrate in relation to awarding fine and compensation is discussed in paras 30 and 31 which read as under:

"30. It is true, if a Judicial Magistrate of 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 cases, a complainant would get only the maximum amount of Rs. 5,000/-.

31. However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to section 357(3) of the Code. It is well to remember that this Court has emphasized the need for making liberal use of that provision. (Hari Kishan v. Sukhbir Singh)3, A.I.R. 1988 S.C.C. 2127. 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 com

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