G. PATRI BASAVANA GOUD, J.
( 1 ) THE learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Udupi, in Criminal Case No. 757 of 1998, by his judgment and order dated 14-10-1999, convicted the respondent-accused of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('act' for short), in respect of dishonouring of a cheque for Rs. 1,05,750/-, which had been issued in favour of the present petitioner-complainant, and sentenced the respondent-accused to S.. for six months and to pay a fine of Rs. 1,10,000/-, in default, to S.. for six months. In appeal, by the respondent-accused at Cr. A. No. 148 of 1999, the learned II Additional Sessions Judge, Dakshina Kannada, Mangalore, by his judgment and order dated 8-2-2001, affirmed the conviction, but, modified the sentence to one of fine of Rs. 3,000/-, in default, to S.. for four months, and to pay a compensation of Rs. 1,00,000/- to the petitioner-complainant. Aggrieved by this, the petitioner has approached this Court under Section 397 of the Cr. P. C.
( 2 ) THE respondent-accused has not questioned his conviction, and the same therefore, has become final. So far as the aspect of sentence and ' awarding of compensation is concerned, the impugned order of the learned Sessions Judge is illegal, for the reason that it is not in compliance with Section 357 of the Cr. P. C. When the learned Sessions Judge chose to sentence the accused only to pay a fine of Rs. 3,000/-, in default, to undergo S.. for four months, then, under sub-section (1) of Section 357 of the Cr. P. C. , only the whole or any part of the fine amount concerned, that is, whole or part of Rs. 3,000/- could have been applied for the purpose specified in several clauses in the said sub-section (1) of section 357 of the Cr. P. C. On the other hand, if compensation were to be paid to the complainant, it would be under sub-section (3), in which event the fine should not form a part of the sentence. Where, in a case like the present one, fine forms a part of the sentence, no compensation under sub-section (3) of Section 357 of the Cr. P. C. could have been given. Since the conviction has become final, and since the sentence imposed by the learned Sessions Judge is found to be not in conformity with Section 357 of the Cr. P. C. , same needs to be modified, and is modified as such.
( 3 ) FOR the conviction of the respondent-accused for the offence under section 138 of the Act, the respondent-accused is sentenced to imprisonment till the rising of the Court, and is further directed under sub-section (3) of Section 357 of the Cr. P. C. to pay a compensation to the petitioner-complainant in a sum of Rs. 1,06,000/ -. To borrow the words of the Supreme Court in paragraph 17 in Pankajbhai Nagjibhai Patel v state of Gu
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jarat and Another, the respondent-accused is directed to deposit the said compensation of Rs. 1,06,000/-, in the Trial Court within two months from today, failing which, the Trial Court shall resort to take steps as permitted by law to realise it from the respondent-accused. Revision petition disposed of accordingly.