The complainant in C.C.No.138/1996 on the files of the Judicial Magistrate of First Class-IV, (Mobile), Thiruvananthapuram, is the petitioner in this Criminal Revision Petition. The complaint was filed for prosecuting the accused for an offence punishable under Section 138 of the Negotiable Instruments Act [for short `the Act]. It was alleged that the accused had, in discharge of a liability, issued two cheques for an amount of Rs.30,000/- each, that the cheques on presentation were dishonoured for want of sufficient funds, that a notice demanding payment was not heeded to and that therefore, the accused has committed an offence under Section 138 of the Act. PWs1 to 4 were examined on behalf of the complainant and Exts.P1 to P8 were marked. Accused examined himself as DW1 and produced Ext.D1. Trial Court on an elaborate appreciation of the evidence, found that the accused is guilty of the offence under Section 138 of the Act. The following sentence was imposed by the learned Magistrate.

The accused is sentenced to pay a fine of Rs.70,000/-, in default of payment of fine to undergo simple imprisonment for three months under Section 138 of the Negotiable Instruments Act. Out of the fine amount realised, a sum of Rs.60,000/-will be paid to the complainant as compensation under Section 357 Cr.P.C.

2. Accused filed an appeal before the Sessions Court as Crl.A.78/98. The appellate Court on re-appreciation of the evidence, found that the conviction of the accused for the offence under Section 138 of the Act is justified and affirmed the conviction. But in so far as the sentence is concerned, the appellate Court noted that the Judicial Magistrate of First Class has no jurisdiction to impose a fine of more than Rs.5,000/- in terms of Section 29 of the Code of Criminal Procedure [for short `the Code]. and therefore, went on to hold that the imposition of sentence by the learned Magistrate is liable to be interfered. It was held as follows by the appellate Court:-

"Once fine forms part of the sentence, no compensation could be awarded as provided under Section 357(3) of Cr.P.C. and in that case compensation could be awarded only under Section 357

(1) which could only be the fine amount either full or part. As the learned Magistrate is not competent to sentence the appellant to pay fine of above Rs.5,000/-, sentence awarded by the learned Magistrate is definitely unsustainable and it to be modified to the extent of Rs.5,000/-."

3. Thecomplainant has come up in revision aggrieved by the judgment of the appellate Court, in so far as the sentence imposed by the Magistrate has been modified by reducing the fine amount from

Rs.70,000/- to Rs.5,000/-.

4. I heard learned counsel for the petitioner and learned counsel for the accused. I have perused the orders passed by the Courts below.

.5. Learned counsel for the petitioner submits that the accused was found guilty of the offence under Section 138 of the Act and the learned Magistrate had essentially directed the cheque amount to be paid to the complainant by way of compensation. It is contended that the direction to compensate the complainant is in consonance with the law laid down by the Supreme Court in this regard especially in the context of offences under Section 138 of the Act. Reference may be made in this regard in Suganthi v. Jagadeesan (2002 (1) KLT 581), Pankaj Bhai Jagji Bhai Patel v. State of Gujarat (2001 (2) SCC 595) and K.Bhaskaran v. Sankaran Vaidyan Balan (1999 (7) SCC 510). It is contended that the law has been considered by the Supreme Court in a recent decision Manish Jalan v. State of Karnataka (2008 (3) KLT 390 (SC)).

6. It is contended that even if the appellate Court had found that the Magistrate has exceeded his jurisdiction in imposing a fine of more than Rs.5,000/-, the appellate Court nevertheless had the jurisdiction to modify the sentence by directing compensation to be paid in terms of Section 357(3) of the Code. Learned counsel for the petitioner furt