Cri. Rev. Petn. No.429 of 2000

30th January, 2009

Petitioner Counsel: SHEJI P. ABRAHAM
Respondent Counsel: V. N. RAMESAN NAMBISAN, Smt. M. K. PUSHPALATHAN

Cases Cited:
State of Kerala Vs. Khader, 1974 KLT 129 [Para 5]
State of Kerala Vs. Damodaran, 1974 KLT 281 [Para 5]
Maya Das Vs. Municipal Committee, Chiniot, AIR 1927 Lahore 161 [Para 6]
M.C.D. Vs. State of Delhi, AIR 2005 SC 2658 : (2005)4 SCC 605 [Para 10,11,12,17]
Dalbir Singh Vs. State of Haryana, (2000)5 SCC 82 [Para 11,20]
Sitaram Paswan Vs. State of Bihar, (2005)13 SCC 110 [Para 11]
Jugal Kishore Prasad Vs. State of Bihar, AIR 1972 SC 2522 [Para 15]
Isher Das Vs. State of Punjab, (1972)2 Cri.L.J. 874 : AIR 1972 SC 1295 [Para 16]
Ram Prakash Vs. State of H.P., AIR 1973 SC 780 : 1973 Cri.L.J. 593 [Para 16]
State of Gujarat Vs. Jamnadas G. Pabri, AIR 1974 SC 2233 [Para 20]
Anilkumar Vs. Shammy, 2002(3) KLT 852 [Para 20]

JUDGMENT

JUDGMENT :- On a complaint preferred by the petitioner, learned Magistrate found that cheque for Rupees One lakh issued by the first respondent for discharge of legally enforceable debt/liability was dishonoured for insufficiency of funds, in spite of petitioner intimating dishonour and demanding payment of the amount first respondent did not pay the amount and thereby first respondent committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). He was convicted of the said offence but instead of sentencing him as provided in the Act, he was released under Section 4(1) of the Probation of Offenders Act (for short, 'the PC Act') on executing bond for Rs.5,000/- with two sureties for the like sum each to appear and receive sentence when called upon during a period of one year and in the meantime to keep peace and be of good behaviour. That part of the judgment is under challenge in this revision at the instance of the complainant.

2. The questions raised are whether a revision at the instance of the petitioner who could have challenged the impugned order by way of appeal is maintainable and whether, it is expedient in the ends of justice to release a person convicted of the offence punishable under Section 138 of the Act under Section 4(1) of the PO Act.

3. Based on the evidence of PWs.1 and 2 and Exts.P1 to P8, learned magistrate found that first respondent committed the offence punishable under Section 138 of the Act. No challenge is made before me on behalf of the first respondent against his conviction. It is contended by the learned counsel for first respondent that since petitioner could challenge the order releasing the first respondent on probation by way of appeal under Section 11(2) of the PO Act, a revision at his instance is not maintainable in view of the bar under Section 401(4) of the Code of Criminal Procedure (for short, 'the Code').

4. This revision is filed requesting this Court to exercise its revisional power over the order of learned magistrate releasing the first respondent on probation. According to the learned counsel for petitioner, object of conferring power of revision under Sections 397 and 401 of the Code is to give the superior criminal Court a supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent blindness of law and order or some undesired hardship to the individuals. Hence learned counsel contended that release of first respondent on probation after finding that he has committed the offence punishable under Section 138 of the Act has resulted in miscarriage of justice as there is no scope of application of Section 4(1) of the PO Act. Release of the first respondent on probation has resulted in undesired hardship to the petitioner and benefit to the first respondent. He therefore, requested this Court to exercise its supervisory jurisdiction and correct the mistake committed by the learned Magistrate.

5. Section 401(4) of the Code states as under :-

"Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed."

The provision prima facie indicates that if an appeal lies under the Code against an order, a revision against that order at the instance of the party who could have appealed is not maintainable. So it has to be considered first whether an appeal is provided against the impugned order at the instance of petitioner. Section 11(2) of the PO Act reads thus :-

"Notwithstanding anything contained in the Code, where an order under Sec.3 or Sec.4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeal ordinarily lie from the sentences of the former Court."

In this case, judgment was pronounced by a Judicial First Class Magistrate. Against sentence awarded by a Judicial First Class Magistrate, appeals lie under the Code to the Sessions Court. By virtue of Section 11(2) of the PO Act, even a complaint or de facto complainant can prefer appeal against an order under Section 3 or 4 of the said Act. Therefore it was open to the petitioner to challenge the impugned order by way of an appeal before the Sessions Court. In State of Kerala Vs. Khader (1974 KLT 129) and State of Kerala Vs. Damodaran (1974 KLT 281), it has been held that as complainant could challenge the order under Section 3 or 4 of the PO Act by way or an appeal, a revision at his instance is not maintainable in view of Section 401(4) of the Code.

6. Section 401(4) of the Code would say that a revision is not maintainable when an appeal lies "under, this Code" meaning thereby, the Code of Criminal Procedure. One contention raised is that appeal against an order under Section 3 or 4 of the PO Act is provided not under provisions of the Code but by virtue of Section 11(2) of the PO Act and hence the bar under Section 401(4) of the Code does not apply. Support to that contention comes from Maya Das Vs. Municipal Committee, Chiniot (AIR 1927 Lahore 161). There, a criminal revision was filed by one of the parties to the proceeding against the order of learned magistrate issuing warrant for realization of amount under Section 81 of the Punjab Municipal Act. Maintainability of revision was contested on the ground that Section 84 of that Act provided for an appeal against assessment or levy of tax and hence, by virtue of Section 439(5) of the (old) Code, no revision lay. Campbell J., dispelling that contention observed:

"This is obviously an untenable position. In the first instance, it has been only enacted in Section 439(5), Criminal P.C., that when under that Code an appeal lay and no appeal was brought, no proceedings by way or revision should be entertained at the instance of the party who could have appealed. Now, in the present case no appeal lay under the provisions of the Criminal P.C."(Emphasis supplied)

Holding so, revision was found to be maintainable.

7. It is true that the point considered in Maya Das Vs. Municipal Committee, Chiniot, i.e., when appeal against an order is provided not under the Code but under the special statute bar under Section 401(4) of the Code will not apply, was not specifically considered in State of Kerala Vs. Khader or State of Kerala Vs. Damodaran referred above. This Court found that a revision at the instance of complainant who could have challenged the order under Section 3 or 4 of the PO Act by way of appeal is not maintainable. Though a right of appeal against an order under Section 3 or 4 of the PO Act is not conferred by the provisions of the Code, Code is also not oblivious to a right of appeal provided under other statutes. Section 372 of the Code states that "no appeal shall lie from any judgment or order of a criminal Court except as provided by this Code or by any other law for the time being in force". The Code thus contemplated appeals as permitted under any other law for the time being in force, as well. I am not inclined to think, in the above situation that the decisions in State of Kerala Vs. Khader and State of Kerala Vs. Damodaran require reconsideration. I therefore follow the position of law as laid down in the said decisions. In the circumstances this revision at the instance of the petitioner who could have challenged the impugned order by way of an appeal under Section 11(2) of PO Act is not maintainable.

8. Next question is whether revision petition is liable to be dismissed for that reason alone. According to the learned counsel for petitioner, it is within the power of this Court and even duty to rectify the mistake committed by the subordinate criminal Court by exercising its power of suo motu revision. According to the learned counsel for first respondent, this is not a fit case where power of suo motu revision is to be exercised.

9. Section 401 of the Code confers suo motu power of revision on the High Court. One distinct feature of suo motu revisional power of the High Court as against that of the Sessions Judge is that even when records of a case has been called for by the High Court not on its own motion but at the instance of a party to the proceeding, it is open to the High Court to exercise power of suo motu revision. Question is whether on the facts and circumstances of this case, that power is to be exercised.

10. Under Section 6(2) of the PC Act for satisfying itself whether it would not be desirable to deal with an offender under Section 3 or Section 4 of the PO Act, Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. Section 4(2) of the PO Act requires the Court to take into consideration the report, if any, of the probation officer before deciding to release the offender under Section 4(1) of that Act. The Supreme Court has held in M.C.D. Vs. State of Delhi (AIR 2005 SC 2658) that consideration of report of probation officer is a condition precedent to release the accused under Section 4(1) although Court is not bound by such a report. I went through the records of the case and could not find any such report called for by the learned magistrate. Hence prima facie, illegality has been committed by the learned Magistrate. Supervisory jurisdiction of the superior criminal Court enabled such Court to consider the legality, regularity and propriety of the order or proceedings of subordinate criminal Court. Therefore it is well within the power of this Court, notwithstanding that a revision at the instance of the petitioner is not maintainable for reasons stated, to consider whether in this case it was legal, regular and proper for the learned Magistrate to invoke Section 4(1) of the PO Act. On the facts and circumstances of this case, I am not inclined to accept the contention of learned counsel for first respondent that, this is not a fit case to invoke the suo motu power of revision under Section 401 of the Code. I shall proceed to consider invoking that power whether learned Magistrate was correct legally and factually in releasing the first respondent under Section 4(1) of the PO Act.

11. I stated the scenario in which learned Magistrate passed the impugned order. In paragraph 12 of the judgment, learned Magistrate observed thus :-

"Regarding the punishment, taking into consideration the age of the accused and there is nothing to show that accused is involved in any other offence, I think provisions of the Probation of Offenders Act can be invoked in this case. Accordingly the accused is convicted for committing offence under S.138 of the Negotiable Instruments Act and instead of sentencing him at once to any punishment he is released under S.4(1) of the Probation of Offenders Act, on his entering into a bond for Rs.5,000/- together with two solvent sureties for the same amount to appear and receive sentence when called upon during a period of one year and in the meantime to keep the peace and be of good behaviour."

Accordingly first respondent was released under Section 4(1) of the PO Act. Learned counsel for first respondent would support the said view and order of learned Magistrate and placed reliance on the decisions of the Supreme Court in Dalbir Singh Vs. State of Haryana ((2000)5 SCC 82), MCD Vs. State of Delhi ((2005)4 SCC 605) and Sitaram Paswan Vs. State of Bihar ((2005)13 SCC 110). These decisions say that provisions of the PO Act should be applied having regard to the nature of offence and age, character and antecedents of the offender. According to the learned counsel for first respondent, it is not shown that first respondent is involved in any other case and hence learned Magistrate is justified on the facts and circumstances of this case in releasing the first respondent under Section 4(1) of the PO Act. Per contra, it is contended by the learned counsel for petitioner that the offence punishable under Section 138 of the Act is not one normally involving moral turpitude, it is a technical, statutory offence which did not require mens rea and considering the object of enacting Section 138 of the Act, it was not expedient to release the first respondent under Section 4(1) of the PO Act. It is also the contention of learned counsel that there is little scope for applying the provisions of the PO Act to a person found guilty under Section 138 of the Act.

12. Under Section 4(1) of the PO Act when a person is found guilty of an offence not punishable with death or imprisonment by life and the Court is of opinion that having regard to the circumstances of the case including the nature of offence and character of the offender it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years as the Court may direct, and in the meantime to keep the peace and be of good behaviour. Proviso states that the Court shall not direct release of offender unless it is satisfied that the offender or his surety if any, has a fixed place of abode or regular occupation in the place over which the Court exercise jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. Sub-section (2) requires that the Court shall take into consideration the report if any, of the probation officer concerned in relation to the case. I have stated earlier quoting the decision of the Supreme Court in M.C.D. Vs. State of Delhi (AIR 2005 SC 2658) that before deciding to release the offender under Section 4(1) of the PO Act, Court is bound to call for report of the probation officer but, that has not happened in this case.

13. It is clear from Section 4(1) of the PO Act that for the said provision to apply, Court must be satisfied that it is expedient, having regard to the circumstances of the case including nature of the case and character of the offender, to release him on probation of good conduct requiring him to appear and receive the sentence when called upon during the period not exceeding three years fixed by the Court. Court has to direct him to keep the peace and be of good behaviour during such period. Question is whether in the case of a person found guilty under Section 138 of the Act, it is "expedient" to release him on probation of good conduct and direct him to keep the peace and be of good behaviour during such period as the Court may direct in the order. To decide that, it is necessary to understand the object of enacting the PO Act.

14. The statement of objects and reasons for the Bill which was passed into the PO Act states as under :

"The question of release of offenders on probation of good conduct instead of sentencing them to imprisonment has been under consideration for some time. In 1931, the Government of India prepared a draft of Probation of Offenders Bill and circulated it to the then Local Governments for their views. However, owing to pre-occupation with other more important matters, the Bill could not be proceeded with. Later in 1934, the Government of India informed Provincial Governments that there was no prospect of Central legislation being undertaken at the time and there would be no objection to the Provinces undertaking such legislation themselves. A few Provinces accordingly enacted their own probation laws.

(2) In several States, however, there are no separate probation laws at all. Even in States where there are probation laws, they are not uniform nor are they adequate to meet the present requirements. In the meantime, there has been an increasing emphasis on the reformation and the rehabilitation of the offender as a useful and self-reliant member of society without subjecting him to the deleterious effects of jail life. In view of the widespread interest in the probation system in the country, this question has been re-examined and it is proposed to have a Central law on the subject which should be uniformly applicable to all the States.

(3) It is proposed to empower Courts to release an offender after admonition in respect of certain specified offences. It is also proposed to empower Courts to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life. In respect of offenders under 21 years of age, special provision has been made putting restrictions on their imprisonment. During the period of probation, offenders will remain under the supervision of Probation Officers in order that they may be reformed and become useful members of society. The Bill seeks to achieve these objects."

15. A Parliamentary Committee considered the Bill and stated concerning the role of probation officer in its report dated 19-2-1958 thus :-

"Probation of offenders bill is a progressive piece of legislation the object of which is to treat the offender not so much as a criminal but as a sick man who is capable of being reclaimed and restored to society as a useful and respectable citizen. In other words, the criminal is to be equated to a sick man who is to be restored to social health with the help of the physician who in this case is the Probation Officer. The Probation Officer makes a careful analysis of the environment and circumstances of the offender and helps him to overcome the difficulties that led him to commit the offence in the first place. It is obvious that to work this Act, probation officers of proper calibre and of the right attitude are essential.........."

The Supreme Court considered the matter in Jugal Kishore Prasad Vs. State of Bihar (AIR 1972 SC 2522). H. R. Khanna, J. speaking for the bench stated thus :-

"................. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective."

16. The PO Act introduced a very basic change in the criminal law of the country. At the same time, Courts were also to be careful about the impact on the society consequent on letting offenders on probation. Indiscriminate application of provisions of the PO Act to anti-social and white-collar offenders may have an adverse effect on the security of the society. Application of the PO Act is specifically barred in some cases. There was divergence of opinion whether provisions of PO Act are applicable to cases under the Prevention of Food Adulteration Act (for short, 'the PFA Act') and ultimately the matter reached the Supreme Court. In Isher Das Vs. State of Punjab ((1972)2 Cri.L.J. 874) : (AIR 1972 SC 1295) it was held that the PO Act is applicable to an offender found guilty under the provisions of the PFA Act as well. In Ram Prakash Vs. State of H.P. (AIR 1973 SC 780) : (1973 Cr.L.J. 593) the Supreme Court sounded a note of caution while stating that benefit of provisions of PO Act could be given to persons who are found guilty of offences under the PFA Act. The Supreme Court pointed out that adulteration of food is injurious to public health and the PFA Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in food articles and hence in view of the object of PFA Act and the intention of the legislature as revealed from the provisions regarding imposition of minimum sentence, courts should not lightly resort to the provisions of the PO Act in the case of persons above 21 years of age found guilty of offence under the PFA Act. Now, a specific provision is made in the PFA Act that nothing contained in the PO Act or Section 360 of the Code shall apply to persons convicted for offence under the PFA Act unless such person is under the age of 18 years. Certain other statutes like the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') also contain similar provisions.

17. There is no provision in the Act, similar to the provisions in the PFA Act, the NDPS Act or other similar Acts concerning the application of the PO Act. Nor is the PO Act made inapplicable to a person found guilty under Section 138 of the Act. Still, Court has to consider whether having, regard to the circumstances of the case, and nature of the offence it is "expedient" to apply Section 4(1) of the PO Act to a person found guilty under Section 138 of the Act. I stated that as per Section 4(2) of the PO Act and decision of the Supreme Court in M.C.D. Vs. State of Delhi (AIR 2005 SC 2658), it is mandatory to call for a report from the probation officer concerning the character and physical and mental condition of the offender. Circumstances of the case including nature of offence and character of the offender are of much importance for application of Section 4(1) of the PO Act. Exercise of power under Section 4(1) of the PO Act is entirely in the discretion of the Court to be exercised according to circumstances of each case. The fact that an offender is a first or youthful offender may not by itself be sufficient to invoke Section 4(1) of the PO Act. Section 4(3) of the PO Act enables the Court if it is of opinion that in the interest of the offender and of the public it is expedient to do so, to pass a supervision order in addition to the bond executed by the offender, directing that the offender shall remain under the supervision of the probation officer for such period not being less than one year, as may be specified. Section 7 of that Act states that report of probation officer (referred to under Section 4(2)) shall be treated as 'confidential'. The proviso enables the Court, if it so thinks fit to communicate substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report. Section 8 empowers the Court to vary conditions of probation if it is of opinion that in the interest of the offender and public it is expedient or necessary to do so. Under Section 9(3) of the PO Act if the Court is satisfied that the offender has failed to observe any of the conditions of the bond entered into by him, it may forthwith sentence him for the original offence or, where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding Rs.50/-. These provisions make it clear that it is only in cases where the Court having regard to the circumstances of the case including nature of offence, age, character and antecedents of the offender and with the object of reforming the offender and save him from hardened criminals already detained in prison, considers it expedient to release him on probation that the Court could not should apply the benevolent provisions of Section 4(1) of the PO Act. Attempt of Court is to save the youthful offender who, by compulsion of circumstances may have succumbed to an emotional act falling into the evil hands in the jail, at the same time protecting the society from such persons released on probation by directing them to execute bond for such period not exceeding three years and in the meantime, be of good behaviour and keep peace and if they violated the condition, to appear and receive the sentence for the original offence.

18. Sections 138 to 142 of the Act were introduced by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act. 1988. The statement of Objects and Reasons for introducing the said provisions by amendment state thus-

xxxxxxxxxxxx

(xi)to enhance the acceptability of cheques in settlement of liability by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers.

xxxxxxxxxxx"

Section 138 of the Act states that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence. Proviso to the Section states that nothing contained in Section 138 shall apply unless the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, the payee or the holder in due course of the cheque gives to the drawer of the cheque a notice in writing within fifteen days of the receipt of information regarding dishonour, intimating dishonour and demanding payment of the amount of the drawer failed to make payment of the said amount of money within 15 days of receipt of the said notice (the period stated is as provided under Section 138 as it originally stood). The punishment originally provided was imprisonment which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The Act was further amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 with effect from 17-12-2002. The prefatory note concerning statement of objects and reasons states :-

"The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.

xxxxxxxxxxxxxxxx

4.Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely :-

(i) to increase the punishment as prescribed under the Act from one year to two years;

5.The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee director from prosecution under the Negotiable Instruments Act, 1881. (Underline supplied)

19. It is pertinent to note that while introducing Sections 138 to 142 of the Act providing for prosecution and punishment for dishonour of cheques, provision is also made to avoid harassment to honest debtors in that, they can make payment of the amount of cheque on receipt of notice within the prescribed time in which case, no offence is deemed to have been committed. The object of introducing Sections 138 to 142 in the Act is to enhance acceptability of cheques in settlement of liabilities by making the drawer liable for penalty for dishonour of cheque for insufficiency of funds, at the same time protecting the interest of honest debtors.

20. Such being the object of introducing Section 138 of the Act, question is whether it is "expedient" to invoke the provisions of Section 4(1) of the PO Act to a person convicted of that offence? In Dalbir Singh Vs. State of Haryana referred supra it is held that :

"The conditions for applying Section 4 of the PO Act have been delienated in the commencing portion of the provision. In it Parliament made it clear that only if the Court forms the opinion that it is expedient to release the accused on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Thus Parliament has left it to the Court to decide when and how the Court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. The word "expedient" has been thoughtfully employed by Parliament in the section so as to mean it as "apt and suitable to the end in view."

It was further held that-

"The word "expedient" is used in Section 4 of the PO Act In the context of casting a duty on the Court to take into account "the circumstances of the case including the nature of the offence.............." This means Section 4 can be resorted to when the Court considers the circumstances of the case, particularly the nature of the offence, and the Court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct."

The word "expedient" has been very thoughtfully used in Section 4(1) of the PO Act. Black's Law Dictionary defines the word "expedient" as "suitable and appropriate the accomplishment of a specified object" besides other meanings. The Supreme Court considered the meaning of that word in State of Gujarat Vs. Jamnadas G. Pabri and others (AIR 1974 SC 2233) and said :

"................Again, the word "expedient" used in this provisions, has several shades of meaning. The one dictionary sense, "expedient" (adj.) means "apt and suitable to the end in view", "practical and efficient": "politic"; "profitable"; "advisable", "fit". proper and suitable to the circumstances of the case". In another shade, it means a device "characterised by mere utility rather than principle, conducive to special advantage rather than to what is universally right."

The Court must therefore, be satisfied before invoking Section 4(1) of the PO Act that it is apt and suitable to the end in view and to the circumstances of the case to do so. Offence under Section 138 of the Act is punishable with imprisonment or with fine which may extend to twice the amount of the cheque or with both. Section 357(1)(b) of the Code empowers the Court to order the whole or part of fine recovered to be paid as compensation for loss or injury caused by the offence. Section 357(3) of the Code also is applicable to a person found guilty under Section 138 of the Act. A learned Judge of this Court pointed out in Anilkumar Vs. Shammy (2002(3) KLT 852) that normally a direction for payment of compensation under Section 357 of the Code should follow a successful prosecution under Section 138 of the Act. Learned Judge observed that "if there are sufficient and compelling reasons, the Court must specify such reasons in the judgment and then only choose not to invoke the powers under S.357 of the Criminal Procedure Code.". The scheme of the Act is to compensate the payee or holder in due course on successful prosecution of the offender for the loss or injury he has suffered. Responsibility of awarding compensation to the payee or holder in due course is bestowed on the Court. Causing dishonour of cheque due to insufficiency of funds and non-payment of the amount within the prescribed time even after dishonour intimation and demand for payment of the amount is not an emotional act done under any compulsion of circumstances. In my view, having regard to the object of introducing Section 138 of the Act and the nature of that offence, there is little scope for reforming a person who is proved to have committed the offence punishable under Section 138 of the Act and directing him to execute bond and in the meantime be of good behaviour and keep peace in the locality for any period whatsoever. As such it is not expedient to release a person convicted of the offence under Section 138 of the Act on probation under Section 4(1) of the PO Act. Learned Magistrate was not correct in invoking Section 4(1) of the PO Act. That part of the judgment therefore, is liable to be set aside and, I do so.

21. Though Section 11(4) of the PO Act enables this Court to pass sentence while setting aside the order under Section 3 or 4 of that Act, on the facts and circumstances I consider it appropriate to direct the learned Magistrate to consider the evidence of this case and pass appropriate sentence.

Resultantly this revision petition is disposed of in the following lines :-

i. Judgment of the Court below to the extent it concerned release of the first respondent under Section 4(1) of the PO Act is set aside.

ii. Case is remitted to the Court below to pass appropriate sentence having regard to the nature of offence, object of legislation and other relevant factors.

Parties are directed to appear in the Court below on 26-2-2009.

Ordered accordingly.