IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :29.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.Nos.35630 and 35631 of 2004 M/s.Reliance Industries Limited rep. by its Regional Accountant Mr.R.Ramakrishnan, 5th Floor, JVL Plaza, No.501, Anna Salai, Chennai-600 018. .. Petitioner Vs 1. M/s.Luxmi Laboratories (P) Limited rep. by its Director PL.Sudhakar 2. PL.Sudhakar .. Respondents Prayer : Criminal Original Petition filed under section 482 of Cr.P.C. to call for the records and set aside the order passed in Crl.R.C.Nos.212 and 213 of 2000, dated 30th March 2004 on the file of the learned Additional Sessions Judge (Fast Track Court No.III), Chennai and confirming the order passed in C.C.Nos.1424 and 1425/1997 dated 12.09.2000 on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai and enhance the sentence. For Petitioner : Mr.L.Rajasekar For Respondents : Mr.A.Ramesh, Senior Counsel for R.M.Venkatesh C O M M O N O R D E R Both the above petitions relating to the dispute between the parties, who are one and the same, namely, the petitioner as well as the respondent and as such, both the matters are taken up together for hearing and to pass common orders. 2. The petitioner in both the matters is the complainant in a case for the offence alleged under Section 138 of the Negotiable https://hcservices.ecourts.gov.in/hcservices/ Instruments Act and he has come forward with the above petitions seeking for the relief of setting aside the orders passed in Crl.R.C.Nos.212 and 213 of 2000, dated 30th March 2004 on the file of the learned Additional Sessions Judge (Fast Track Court No.III), Chennai confirming the order passed in C.C.Nos.1424 and 1425/1997 dated 12.09.2000 on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, and enhance the sentence. 3. The learned counsel appearing for the petitioner contended that the petitioner/complainant succeeded in establishing the case for the offence under Section 138 of the Negotiable Instruments Act and the learned trial Magistrate having found the respondent/accused guilty, convicted and sentenced him till the rising of the Court and also imposed a fine of Rs.5,000/- in both the matters. The learned counsel appearing for the petitioner further contended that the cheque amount involved in each petition is to the tune of each Rs.9 Lakhs totalling of Rs.18,09,000/- for both the cases together and as such, the sentence imposed is not proportionate to the offence alleged against the respondent/accused and it is also submitted that the learned Trial Magistrate imposed a flee bite sentence ignoring the decisions of the Honourable Supreme Court and it is further contended that the learned Lower Appellate Judge also ignoring the materials available on record to the effect that the amounts due towards dishonoured cheques totalling to Rs.18,09,000/- in respect of both the cases together declined to enhance the sentence awarded to the respondent/accused and as a result, serious prejudice is caused to the petitioner, resulting in miscarriage of justice. Therefore, it is contended by the learned counsel appearing for the petitioner that the orders passed by the Lower Appellate Court in both the matters as stated above are liable to be set aside and the sentences imposed on the accused are liable to be enhanced. 4. Mr.A.Ramesh, learned Senior Counsel appearing for the respondent contended that as a matter of fact, the trial court's order of conviction in both the matters were challenged by the respondent by preferring appeals before the learned Additional Sessions Judge, Fast Track Court No.III, Chennai and the learned Lower Appellate Judge dismissed the appeals and as well as dismissed the revision filed by the complainant/petitioner. The learned Senior Counsel appearing for the respondent further placed reliance on the provisions contained under the Criminal Procedure Code, namely, under Section 377 in respect of appeal preferred by the State against the sentence and pointing out the clause 3 of that provision, contended that in the event of filing any appeal, the accused is also entitled to seek for remedy of lesser sentence and as well as arguing for acquittal and the accused is entitled to get an opportunity to put forth his case before the lower Appellate Court. The learned Senior Counsel also placed reliance under https://hcservices.ecourts.gov.in/hcservices/ Provision 386 of the Cr.P.C. in respect of a similar submission, namely, in the event of preferring the appeal for enhancement, the accused should be given adequate opportunity to put forth his case including his case for seeking the relief of acquittal. It it also contended by the learned senior counsel appearing for the respondent that though the respondent/accused not challenged the order of dismissal of the appeal passed by the lower Appellate Court, the accused is still entitled to put forth his case in the event of the complainant preferring a further petition before this Court under Section 482 of Cr.P.C. seeking for the relief of enhancement of the sentence. It is contended that even the complainant has exhausted his remedy of filing revisions, as such, he is not entitled to file a petition under Section 482 of Cr.P.C. as the same would amount to a second revision which is not permissible as per law. Therefore, it is vehemently contended by the learned Senior Counsel that in the event of an opportunity to be given to the complainant to raise his plea for enhancement of sentence, the respondent is also equally entitled to put forward his plea for lesser sentence as well as the plea for acquittal. 5. I have heard the submissions put forward by either side and also perused the impugned orders passed by the learned Lower Appellate Judge in dismissing the appeal against the conviction preferred by the respondents and as well as the revision for enhancement of sentence preferred by the petitioner/complainant and the materials available on record. 6. At the outset, this Court is constrained to state that an interesting question is raised in this matter to the effect that whether the complainant can seek a remedy of enhancement of sentence even after exhausting the remedy by filing a revision before the Lower Appellate Court for seeking the remedy of enhancement of sentence and if so, whether the respondent/accused is entitled to put forward his plea for lesser sentence as well as acquittal. 7. Before considering the above said question involved in this matter, this Court is of the considered view that it is pertinent to refer the relevant provisions under Section 377 and 386 of the Criminal Procedure Code. Section 377 and 386 of Cr.P.C. read hereunder : "377. Appeal by the State Government against sentence : (1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy- https://hcservices.ecourts.gov.in/hcservices/ (a) to the Court of Session, if the sentence is passed by the Magistrate ; and (b) to the High Court, of the sentence is passed by any other Court. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. (a) to the Court of Session, if the sentence is passed by the Magistrate ; and (b) to the High Court, if the sentence is passed by any other Court. 3. When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. Amendment Act, 2005 - Section 377 is being amended so as to permit the filing of an appeal in the Court of Session instead of the High Court on the ground of inadequacy of sentence passed by a Magistrate. This amendment is intended not only to make it easier for the administration to prefer appeals against unduly lenient sentences by Magistrates but will also deter the latter from passing sentence that are grossly inadequacy. 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- (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 https://hcservices.ecourts.gov.in/hcservices/ 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, by not so as to enhance the same; (c) in an appeal of 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 (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." 8. The above said provisions make it crystal clear that in the event of filing an appeal for enhancement of sentence, the accused is entitled to raise his plea for lesser sentence as well as for acquittal. There is no two opinion that the petitioner, being the complainant in both the cases, is entitled to seek for the relief of enhancement of sentence. It is seen that in this matter as already pointed out both the petitioner/complainant as well as the respondent/accused have exhausted their remedy by filing an appeal against conviction as well as by filing a revision for enhancement of sentence and of course, the accused has not preferred any further revision, challenging the dismissal of the appeal against conviction. https://hcservices.ecourts.gov.in/hcservices/ 9. At this juncture, it is relevant to note that the Honourable Apex Court has held in Kailash Verma v. Punjab State Civil Supplies Corporation and another reported in (2005) 2 SCC 571 that, "In view of the prohibition under S.397(3), the complainant or the accused cannot be allowed to take recourse to a second revision, but High Court can entertain a petition under S.482 when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court" Therefore, it is well-settled by the Hon'ble Apex Court in the decision cited supra that the complainant or the accused cannot be allowed to take recourse to a second revision but they can invoke the provision under Section 482 Cr.P.C. in the event of serious miscarriage of justice and abuse of process of the Court. 10. As far as the case on hand is concerned, it is vehemently contended by the learned counsel for the petitioners that the trial Court imposed a flea-bite sentence of till rising of Court and a fine of Rs.5,000/- in each case ignoring the fact that the cheque involved in both these cases is totalling for a sum of Rs.18,09,000/- and though the petitioners filed a revision for enhancement of sentence, the lower appellate Court ignoring the gravity of the offence dismissed the said revision resulting in serious miscarriage of justice. On the other hand, it is the grievance of respondent/accused that the entire amount alleged towards the dishonoured cheques were already paid and materials also produced at the time of trial, but both the Courts below ignored and overlooked the materials available on record in favour of the accused which resulted in serious miscarriage of justice to the accused. This Court is of the considered view that the Court below, having come to the conclusion that the accused committed the offence under Section 138 of the Negotiable Instruments Act in respect of the dishonoured cheques to the tune of Rs.18,09,000/- in both the cases together, imposition of sentence of till rising of Court and fine of Rs.5,000/- in each case is not proportionate to the gravity of the offence. 11. The Hon'ble Apex Court in a case in Suganthi Suresh Kumar V. Jagdeeshan reported in 2002 (2) SCC 420 has held that, "There was no case for the respondent that the amount involved in the two cases had been paid either during the pendency of the cases before the trial court or revision before the High Court or the Supreme Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had https://hcservices.ecourts.gov.in/hcservices/ been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout 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." This Court is of the considered view that in view of the above well-settled principle of law laid down by the Hon'ble Apex Court in the decision cited supra and in view of the fact that the Court below having come to the conclusion that the accused committed the offence under Section 138 of the Negotiable Instruments Act in respect of the dishonoured cheques to the tune of Rs.18,09,000/- in both the cases together, imposition of sentence of till rising of Court and fine of Rs.5,000/- in each case, is certainly a flea-bite sentence warranting interference of this Court. 12. Therefore, this Court is constrained to set aside the order of dismissal dated 30.03.2004 passed by the learned lower Appellate Court Judge, namely, the Additional Sessions Judge (Fast Track Court No.III), Chennai, in Crl.R.C.Nos.212and 213 of 2000 filed by the petitioner for enhancement of sentence imposed on the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act. As it is already pointed out, in the event of enhancement of sentence, the accused is entitled to raise the plea for lesser sentence as well as for acquittal and as such this Court is constrained to set aside the judgment of the lower appellate Court dated 30.03.2004 in C.A.Nos.233 and 234 of 2001 confirming the conviction and sentence passed by the trial Court. 13. Accordingly, the impugned order passed by the Additional Sessions Judge (Fast Track Court No.III), Chennai, dated 30.03.2004 in Crl.R.C.Nos.212and 213 of 2000 as well as the judgment dated 30.03.2004 delivered in C.A.Nos.233 and 234 of 2001 are set aside and the learned lower Appellate Court Judge, namely, the Additional Sessions Judge (Fast Track Court No.III), Chennai, is directed to restore the revisions filed by the petitioner/complainant in Crl.R.C.Nos.212 and 213 of 2000 and the appeals against conviction preferred by the respondent/accused in C.A.Nos.233 of 2001 and 234 of 2001 and to hear both the Revisions and the appeals together on merits and pass orders and judgments in accordance with law by affording effective opportunity to both sides within a period of six months from the date of receipt of a copy of the order of this Court. https://hcservices.ecourts.gov.in/hcservices/ The Registry is directed to send back the entire case records, if the same is received by this Court forthwith. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. tsi/gg To 1. The XVIII Metropolitan Magistrate, Saidapet, Chennai. 2. do thro the Chief Metropolitan Magistrate, Egmore, Chennai-8 3. The Additional Sessions Judge, Fast Track No.III, Chennai. 4. do thro the Principal Sessions Judge, Chennai 5. The Section Officer Crl. Section, High Court, Madras 2 ccs to Mr.L. Rajasekar, Advocate, SR. 55490 2 ccs to Mr.R.M. Venkatesh, Advocate, SR. 55592 Crl.O.P.Nos.35630 of 2004 and 35631 of 2004 MS (CO) kk 18/12 https://hcservices.ecourts.gov.in/hcservices/