IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.Rev.Pet.No. 428 of 2001() ----------------------------- CRA.19/1998 of SESSIONS COURT, MANJERI CC.512/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MALAPPURAM. .................... REVN. PETITIONER(S): --------------------- K.P. ISHAQUE, S/O. MARAKKAR HAJI, KOLAPARAMBAN VEEDU, MONGAM P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SMT.SMITHA BABU RESPONDENT(S): --------------- 1. RAVEENDRAN THAMPAN, S/O. PARAMESHWARAN MOOSAD, SREE VILAS, MORAYOOR, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ADV. SRI.SIBY MATHEW FOR R1 SRI.PHILIP J.VETTICKATTU PUBLIC PROSECUTOR SRI. NOBLE MATHEW SRI. P.GOPAKUMARAN NAIR (AMICUS CURIAE) SRI. P. VIJAYABHANU (AMICUS CURIAE) SRI. S. RAJEEV (AMICUS CURIAE) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Crl.R.P. No.428 of 2001-A ------------------------------------------------- Dated this the 10th day of March, 2010 ORDER Basant,J. (i) Does a criminal appellate court, in an appeal against conviction, have the power under Sec.386(b)(i) of the Code of Criminal Procedure (hereinafter referred to as `the Code') to direct re-trial of the appellant by the court below for the purpose of imposing an appropriate and just punishment after upholding the conviction and setting aside the sentence? (ii) Is the expression “reverse the finding and sentence” in Sec.386(b)(i) of the Code elastic enough to justify it being read as “reverse the finding and/or sentence”? (iii) If injustice results, can the revisional court invoke its powers of revision notwithstanding the fact that the lower appellate court has not technically committed any error? (iv) Does the decision of the learned single Judge in Crl.R.P. No.428 of 2001 -: 2 :- Vijayakumar v. State (2009(3) KLT 499) lay down the law on this aspect correctly? 2. These questions arise for consideration in this revision petition which has come up before us on a reference made by a single Judge (one of us). We have initially considered the question whether it would be correct for a Judge making the reference to be part of the Bench hearing the reference also. We are unable to perceive any impropriety in such course. We have not been able to locate any precedent which states that such procedure is incorrect or inapposite. Our anxious consideration of the precedents suggests that there has been several instances at the Apex Court and High Courts where such references have been heard by Benches that include the Judge/Judges making the reference. We are satisfied that there is absolutely no impropriety in such a course being followed. Nay, we feel that it may be unnecessary and unjustified abdication of jurisdiction by a Judge if he avoids the matter when there is no other or better reason. We have, after discussing this question at the bar initially, proceeded to hear the reference. 3. To the vital and crucial facts first. This revision petition is filed by the complainant in a prosecution under Sec.138 of the Crl.R.P. No.428 of 2001 -: 3 :- Negotiable Instruments Act (hereinafter referred to as `the Act') pointing out the injustice that has resulted on account of the improper procedure followed and orders passed by the trial court as well as the appellate court. To put it in a nutshell, the facts can be stated thus: The cheque is for an amount of Rs.1,37,000/-. The cheque is dated 6/10/1995. At the end of the trial, the trial court entered a verdict of guilty and conviction against the accused. The trial court proceeded to impose a sentence of fine only. The accused was sentenced to pay a fine of Rs.1,40,000/- and in default, to undergo simple imprisonment for a period of one year. Out of the fine amount, an amount of Rs.1,37,000/- was directed to be paid to the complainant under Sec.357(1) of the Code. 4. The accused felt aggrieved and approached the Sessions Court with an appeal under Sec.374 of the Code against the verdict of guilty, conviction and sentence. The appellate court found no reason to interfere with the finding of guilt and conviction; but the appellate court following the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) took the view that the sentence of fine imposed is illegal inasmuch as it exceeds the pecuniary limits prescribed under Sec.29 of the Code. The learned appellate Crl.R.P. No.428 of 2001 -: 4 :- Judge proceeded to pronounce the impugned judgment. The sentence of fine was modified and reduced to a fine of Rs.5,000/-. The default sentence was reduced to simple imprisonment for a period of three months. 5. The accused obviously is very happy and rejoiced with the appellate judgment and he has not chosen to challenge the same. The complainant finds himself in a quandary. He faces an unfortunate predicament. The trial court's order, though not in conformity with Sec.29 of the Code, had ensured that justice was done to him. He did not feel the necessity to challenge the same because, according to him, the order whether technically right or wrong, had ensured that justice was done to him. 6. The appellate court had with it an appeal against conviction under Sec.374 of the Code. The appellate court felt that it can exercise only the powers under Sec.386(b)(i) to (iii) of the Code. The appellate court therefore appears to have felt that it can do nothing better than to reduce the sentence of fine to Rs.5,000/-. It could not impose any substantive sentence as that would have offended the embargo under Sec.386(b)(iii) of the Code which mandates that the sentence should not be enhanced in an appeal against conviction. In the absence of a substantive sentence of imprisonment, it could not issue any Crl.R.P. No.428 of 2001 -: 5 :- direction under Section 357(3) Cr.P.C. The appellate court appears to have felt that it has no power to direct re-trial of the appellant to impose an appropriate and just sentence. The appellate court obviously felt fettered as it could not invoke the revisional jurisdiction suo motu in a pending appeal in view of the mandate in John Samuel v. State of Kerala (1985 KLT 902). The learned Sessions Judge does not appear to have contemplated any other course which was available to him to ensure that justice was done in the given circumstances. The learned Sesseions Judge, meekly (if we may call it so) reduced the sentence of fine from Rs.1,40,000/- to Rs.5,000/- and felt that his job was over. 7. The complainant/revision petitioner laments that proceedings of the courts below have led to gross failure/miscarriage of justice. The complainant prays that the revisional jurisdiction of this Court under Sec.401 of the Code may be invoked to ensure that justice prevails and miscarriage/ failure of justice is prevented. An appropriate sentence which will be just and fair to all concerned may be imposed invoking the revisional jurisdiction under sec.401 of the Code, contends the counsel. 8. The learned counsel for the accused, on the contrary, Crl.R.P. No.428 of 2001 -: 6 :- contends that the order of the trial court was obviously illegal as the learned Magistrate had overlooked and ignored the upper limit of fine which he was jurisdictionally competent to impose under Sec.29 of the Code. Under Sec.386(b) of the Code, an appellate court has no power to enhance the sentence. The appellate court could not therefore have modified or altered the sentence of fine into a substantive sentence of imprisonment as that would offend the mandate that an appellate court in an appeal against conviction by the appellant cannot enhance the sentence. Consequently the appellate court could not have issued any direction under Sec.357(3) of the Code as the said provision can be made use of only when a substantive sentence of imprisonment is imposed. The learned counsel for the accused urges that this Court, in revision, cannot exercise any powers which are not available to the appellate court and, in these circumstances, this Court cannot interfere with the impugned appellate judgment passed by the learned Sessions Judge. The learned counsel for the accused places reliance on the decision in Vijayakumar (supra) to press his contention that the powers of the revisional court cannot exceed the powers of the appellate court whose decision is being challenged in revision. Crl.R.P. No.428 of 2001 -: 7 :- 9. It is in this context that the four questions referred above have come up for consideration before us. The matter was heard by another Bench earlier. One of the Hon'ble Judges on that Bench has demitted office before completing the hearing. It is accordingly that the matter has come up before us. Shri. Babu S. Nair, the learned counsel for the complainant, Shri. Philip J. Vettickattu, the learned counsel for the accused and M/s. Gopakumaran Nair, P. Vijayabhanu and S. Rajeev, the learned counsel who offered assistance to this Court as amicus curiae have all been heard. 10. We have not a semblance of doubt on the question that the orders of the trial court as modified by the appellate court has resulted in failure/miscarriage of justice. There is and there can be no dispute on that aspect. Sec.138 of the N.I. Act reflects the anxiety of the legislature to introduce a new healthy commercial morality through the instrumentality of the penal law. These are days when the concept of plastic money rules modern economies. It is not necessary for a person to carry cash every where. A transaction in cheque must be as effective as a transaction in cash. This is the legislative philosophy and dream that triggers and inspires Sec.138 of the N.I. Act. The introduction of such new commercial morality is attempted by Crl.R.P. No.428 of 2001 -: 8 :- amendments carried out in the N.I Act. During the twilight period of enforcement of the law; until the polity imbibes the spirit and gravity of this new generation crime, all courts must show anxiety to ensure that an unduly deterrent substantive sentence of imprisonment is avoided. At the same time, Courts must ensure that the interests of justice are adequately met by the sentence imposed in prosecutions under Sec.138 of the N.I. Act. Courts must ensure that complainants who have extended a helping hand to the system in its quest to introduce such new commercial morality are not left in the lurch and are not obliged to run from Court to Court for the comprehensive redressal of their genuine grievances. Courts have, in these circumstances, been resorting to the course of imposing a lenient substantive sentence of imprisonment till rising of court and simultaneously issuing directions under Sec.357(3) of the Code to pay compensation coupled with a default sentence. Imposition of default sentence has been held to be valid and legal by a series of decisions of the Supreme Court resting with the decision in Vijayan v. Sadanandan (2009 (2) KLT 618 SC)). It is elementary and it does not call for the wisdom of Solomon to conclude that in a prosecution under sec.138 of the Act in respect of a cheque for Rs.1.37 lakhs, imposition of the flea bite Crl.R.P. No.428 of 2001 -: 9 :- sentence of fine of Rs.5,000/- shall not meet the ends of justice and would, in turn, result in failure/miscarriage of justice. The Hon'ble Supreme Court in Suganthi Sureshkumar v. Jagdeeshan [(2002) SC 681] has adverted to the compelling need to impose a just sentence in a prosecution under Section 138 of the N.I Act. 11. All courts - original, appellate, revisional, or constitutional, must have an ultimate and abiding commitment to the interests of justice. They should all realise that not merely the letter of the law but dispensation of justice is important while disposing of cases. If any court feels satisfied in the absence of better reasons that it has done justice by imposing a flea bite sentence of fine of Rs.5,000/- in a prosecution under Sec.138 of the Act in relation to a cheque for an amount of Rs.1.37 lakhs, we can only say that such court has unwittingly perpetrated injustice of the gross variety. We therefore come to the firm conclusion that the modified sentence to pay a fine of Rs.5,000/- has resulted in gross injustice. 12. How can injustice be prevented? What should the appellate court in the given circumstances have done? Has it failed and if so, where and how has it failed? This is the context in which the four questions initially raised by us arises for Crl.R.P. No.428 of 2001 -: 10 :- consideration before us. 13. Question Nos.(i) & (ii): We shall now consider questions (i) and (ii). The Code of Criminal Procedure contemplates various types of appeals from orders/judgments of subordinate criminal courts. There can be appeals against acquittal (Sec.378 of the Code); against conviction (Sec.374 of the Code); for enhancement of sentence (Sec.377 of the Code) and appeals against other orders (like appeals under Secs.449, 454 of the Code etc.). Sec.386 of the Code deals with the powers of the appellate court while dealing with such appeals. We feel that it will be apposite in this context to extract Sec.386 of the Code which reads as follows: Section 386: Powers of the Appellate Court.-- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-- Crl.R.P. No.428 of 2001 -: 11 :- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction-- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence-- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or Crl.R.P. No.428 of 2001 -: 12 :- (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” (emphasis supplied) Crl.R.P. No.428 of 2001 -: 13 :- 14. We shall initially deal with a contention raised regarding Clause (e) of Sec.386 of the Code. Clauses (a) to (d) of Sec.386 of the Code specifies the nature of the powers of an appellate court and the courses/options available to it while dealing with one of the four categories of appeals referred to already. Clause (e) speaks of the power to amend or make any consequential or incidental order that may be just and proper. A contention is raised by Advocate Mr.S. Rajeev, who was requested to assist this Court as amicus curiae, that Clause (e) is wide enough to pass such other orders which may not be strictly justified by Clauses (a) to (d). According to Mr.S. Rajeev, invoking the power under Clause (e) even an enhancement of sentence can be ordered in an appeal against conviction if the sentence already imposed is set aside on the ground of illegality - that it offends Sec.29 of the Code as in this case. 15. The learned counsel draws support for this argument from the fact that the first proviso stipulates that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. In short, the argument of the learned counsel is that notwithstanding the language of Sec.386(b)(iii) of the Code that the sentence cannot be enhanced in an appeal against Crl.R.P. No.428 of 2001 -: 14 :- conviction, in a situation like the instant one, the powers under Clause (e) are available and that read along with the first proviso to Sec.386 of the Code must clothe the appellate court with the power to order even enhancement of sentence in an appeal from conviction under Sec.386(b) of the Code, provided the mandate of the first proviso is satisfied. 16. We are unable to accept this contention. We have been taken through the legislative history behind Sec.386 of the Code which was introduced in 1973. We have been taken through the earlier Sec.423 of the 1898 Code. A specific provision for enhancement of sentence in an appeal against conviction was not there when such appeals were dealt with by Sessions Courts and the Sessions Courts were obliged to make reference in such cases to the High Court. Even though the Law Commission proposed certain amendments, those proposals were not fully accepted by the Parliament. A plain reading of Sec.386 of the Code reveals that in an appeal against acquittal, only the powers under Sec.386(a) are available to the appellate court. In an appeal against conviction, only the powers under Sec.386(b) of the Code are available to the appellate court. In an appeal for enhancement of sentence, only the powers under Clause (c) are available. In all other appeals only the powers Crl.R.P. No.428 of 2001 -: 15 :- under Clause (d) are available with the appellate court. When such appeals are pending before the High Court, the High Court can invoke the powers under Sec.401 Cr.P.C. and even enhance the sentence invoking its revisional powers, after satisfying the mandate of the first proviso. But it appears to us that the substantive appellate powers of an appellate court, in each category of appeals, are the ones conferred respectively under Sec.386 (a) to (d) of the Code only. 17. Clause (e) , according to us, does not confer powers on the criminal appellate court to be exercised in derogation of the powers specified under Clauses (a) to (d). That does not appear to be the legislative scheme at all. It is unnecessary for us to be detained any further on this aspect as we find that the Supreme Court in Commandant 20th Battalion, ITB Police v. Sanjay Binjola ((2001) 5 SCC 317) had considered this question and authentically concluded it. Dealing with the powers under Sec.386(e) of the Code, the Supreme Court observed thus: “Incidental or consequential orders are such orders which are permissible under law and likely to follow as a result of the main order. The consequential or incidental orders contemplated under clause (e) of Section 386 of the Code are orders which follow as a matter of course Crl.R.P. No.428 of 2001 -: 16 :- being necessary complements to the main orders without which the latter would be incomplete and ineffective, such as issuance of directions for refund of fine realised from the accused ultimately acquitted or on the reversal of acquittal or any direction as to punishment, fine or compensation payable under Section 250 of the Code and the like” To this reservoir of residuary powers we may add the power to modify directions issued under Sec.357(1) and Sec.357(3), the power to alter directions regarding disposal of property in any appeal or the directions as to the sentences running consecutively or concurrently. 18. It is now clear that Clause (e) does not confer any jurisdiction on criminal appellate court to pass orders not contemplated by Clauses (a) to (d). Clause (e) only clothes the criminal appellate court, after passing orders of the type contemplated under Clauses (a) to (d) to pass such consequential or incidental orders which would be just and proper. The residuary powers under Clause (e) are not to be invoked in derogation of the powers under Clauses (a) to (d). By any stretch of imagination it cannot be held that under Clause (e) an enhancement of sentence is permissible in an appeal against Crl.R.P. No.428 of 2001 -: 17 :- conviction contrary to the clear mandate of Sec.386(b)(iii) of the Code. 19. The learned counsel Mr.S. Rajeev submits that the first proviso which stipulates that the sentence shall not be enhanced would then be redundant. The learned counsel argues that the said proviso cannot have any application to the powers under Clauses (a) to (d) of Sec.386. The counsel argues that the proviso suggests that a power of enhancement of sentence is available under Clause (e). In short, the argument is that the proviso applies to Sec.386(1)(e) only. We are unable to agree. We agree with the learned counsel for the accused Shri. Philip that the proviso in the scheme of Sec.386 of the Code can apply only to Clause (c) of Sec.386 and not to Clauses (a), (b), (d) or (e). In that view of the matter, we find the contention canvassed by Advocate Mr. S. Rajeev with the help of the decisions in Jayaram Vithoba v. State of Bombay (AIR 1956 SC 146) and Mani & Others v. State (1971 KLT 218) to be unacceptable. We take the view that an appellate court cannot, on its own, enhance the sentence by invoking the powers under Clause (e) read with the first proviso. We agree with Advocate S. Rajeev that even without the first proviso notice would have been given to the respondent/accused in an appeal under Sec.386(c). But Crl.R.P. No.428 of 2001 -: 18 :- that does not persuade us to alter the conclusion reached by us earlier. 20. We are now concerned with an appeal from conviction which is dealt with by Sec.386(b) of the Code. In an appeal from conviction three options appear to be available to the court. They are enumerated in Clauses (i)(ii) and (iii) of Sec.386(b) of the first Code. 21. Now we are concerned with the first option i.e., Clause (i). That shows that in an appeal from a conviction the appellate court can “reverse the finding and sentence”. Once that is done, three further options appear to be available to the appellate court and they are: (a) acquit or discharge the accused; (b) order him to be re-tried by a court of competent jurisdiction subordinate to the appellate court; or (c) order him to be committed for trial. These are the three options available after the appellate court comes to a conclusion that “finding and sentence” is liable to be reversed. 22. We shall immediately note that Clauses (ii) and (iii) of Sec.386(b) of the Code permits upholding of the sentence after altering the finding and the altering of the nature or the extent, Crl.R.P. No.428 of 2001 -: 19 :- or the nature and extent of the sentence with or without altering the finding. But there is an embargo that the sentence should not be enhanced to the prejudice of the appellant in an appeal against conviction preferred by the appellant. 23. Sec.386(b) of the Code has come up for consideration before the courts. In State of A.P. v. Thadi Narayana (AIR 1962 SC 240), the Supreme Court