TMI Blog2002 (1) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... osen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case. Remit the case back to the trial court - CRL.A. 65 OF 2002 - - - Dated:- 15-1-2002 - K.T. THOMAS AND S.N. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the High Court invoke Section 357(3) of the Code. Mr. KV Viswanathan, learned counsel for the petitioner invited our attention to the following observations made by this Court in K. Bhaskaran v. Sankarna Vaidhyan Balan, [1999] 7 SCC 510: If a Judicial Magistrate of the First Class were to order compensation to the 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.PC. The Supreme Court has emphasised the need for making liberal use of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the High Court of Kerala by-passed the legal proposition made by the apex Court in the following manner: The learned Sessions judge imposed sentence in default on the basis of the observation made by the apex Court in Hari Kishan State of Haryana v. Sukhbir Singh, AIR (1988) SC 2127, that court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of apex Court was not drawn specifically to the provisions of S.431 Cr.P.C. providing for recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. That a part, Section 431 of the Code has only prescribed that any money (other than fine) payable by virtue of an order made under the Code shall be recoverable as if it were a fine . Two modes of the recovery of the fine have been indicated in Section 421 (1) of the Code. The proviso to the sub-section says that if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant for levy of the amount. When this Court pronounced in Hari Singh v. Sukhbir Singh, (supra) that a court may enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case. Learned counsel for the respondent contended that the complainant has subsequently filed a civil suit and attached all the properties of the respondent. That is not a ground for lessening the gravity of the offence or to impose a minor sentence chosen by the trial court. As we propose to remit the case back to the trial court, we do not wish to indicate what exactly should be the limit of proper sentence to be passed. The trial Magistrate shall hear both s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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