IMPORTANT POINTS
1. Trial Court can suspend sentence of imprisonment alone u/s 389(3) Cr. P.C.
2. Appellate Court cannot exercise the power to suspend sentence u/s 389(1) Cr. P.C. lightly.

ORDER

M. Karpagavinayagam, J. – The question that arises for consideration in this revision petition is whether the appellate Court under Section 389(1) Cr. P.C. could suspend the sentence of fine, while admitting the appeal and if so, under what circumstances?

2. The facts leading to the filing of this revision are as follows: The petitioner filed a complaint against the respondent for the offence under Section 138 of the Negotiable Instruments Act, since the cheque issued for a sum of Rs. 5,23,700/- by the respondent was dishonoured and that the cheque amount was not paid despite the demand made in the statutory notice. After trial, the respondent was convicted to undergo rigorous imprisonment for six months and to pay a fine of Rs. one lakh, in default to undergo simple imprisonment for one year and she was further directed to pay Rs. 95,000/- to the complainant as compensation out of the fine amount and the remaining amount to be deposited in Court as fine to the Government. This judgment was dated 24-4-1997. On the same date, the respondent the accused paid Rs. 5.000/- being the fine amount and Rs. 5.000/- towards compensation. The respondent filed a petition for extension of time for payment of the balance amount and the time was granted and sentence was suspended by the trial Court itself.

3. Thereafter, the respondent filed an appeal in C.A. No. 73 of 1997 before the District and Sessions Judge, Periyar District at Erode and also filed an application in Crl. M.P. No.1165 of 1997 under Section 389(1) Cr. P.C. requesting for the suspension of the execution of the sentence including the payment of fine pending disposal of the appeal. In this application notice was given to the petitioner, who, in turn, appeared before the appellate Court and objected to the suspension of the sentence of fine alone, since the word, 'sentence' as contemplated in Section 389(1) would not include 'fine' and it would apply any to the imprisonment. However, this objection was rejected by the appellate Court holding that the word 'sentence' as contained in Section 389(1) would include both imprisonment and fine and both sentence of imprisonment and fine were suspended by the order dated 22-5-1997 on the respondent executing, a bond for Rs. 5.000/- with two sureties for the like sum. This order is challenged in this revision.

4. Mr. Uthirasamy, though initially raised a point that the word 'sentence' in Section 389 Cr. P.C. means only substantive form of imprisonment but not sentence of fine ultimately conceded that the word 'sentence' would mean both. However, he would vehemently contend that while the appellate Court suspending the sentence the condition existed in Section 389(1) has not been complied with. To elaborate the said submission, he contended that while the appellate Court thinks it fit to suspend the execution of sentence, the reasons for the same have necessarily to be recorded and that in the absence of reasons, the order suspending the sentence would become bad.

5. Mr. Uthirasamy would further point out that, while suspending the sentence of fine of Rs. One lakh, the appellate Court has not even cared to obtain the security for the said sum to enable the Court to recover the said fine in the event of the dismissal of the appeal. It is further submitted that due to the order suspending the fine amount inclusive of compensation the petitioner/complainant has been greately prejudiced because in the event of dismissal of the appeal. It would be very difficult for the petitioner to recover the said amount of fine and he has to necessarily undergo the long drawn legal process for making recovery of the said amount by invoking the relevant sections, viz., Sections 421, 431 etc. of the Code of Criminal Procedure.

6. Mr. Sankaranarayanan, on the other hand, would submit that the appellate Court has got powers to suspend the sentence under Section 389(1) Cr. P.C. and as such, he requests this Court to confirm the impugned order.

7. At the