IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 115 of 2002 -------------------------------------------- CRA.351/2001 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.851/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED: K.G.CHANDRASENAN,PROPRIETOR, SEN & SAL, G.P.O.LANE, TRIVANDRUM-695 001. BY ADV. SRI.K.S.AJAYAGHOSH RESPONDENTS/RESPONDENT/COMPLAINANT & RESPONDENT: 1. K.A.KUTTYMOOSA, MANAGING PARTNER, M/S.PEARL FOOD PRODUCTS, ERAMALLORE, CHERTHALA, ALAPPUZHA DIST.,REP. BY HIS POWER OF ATTORNEY HOLDER-ABDUL NASSAR. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.A.KUTTYMOOSA (PARTY-IN-PERSON) PUBLIC PROSECUTOR SRI.P.A.SALIM FOR F2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.115 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.851/1996 on the file of Judicial First Class Magistrate's Court-II, Kochi, was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.288/1999. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction, but set aside the sentence and remanded the case to the trial court to award proper sentence, in accordance with law. Learned Magistrate, thereafter, sentenced the petitioner to simple imprisonment for four months and a compensation of Rs.2,35,793/- and in default simple imprisonment for three months. Petitioner challenged the sentence before Sessions Court, Ernakulam in Crl.A.No.351/2001. Learned Additional CRRP 115/02 2 Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner was heard. Though notice was served on the first respondent, he did not appear. 3. Learned counsel appearing for the petitioner argued that conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is unsustainable as the conviction was based on the presumption available under Section 139 of Negotiable Instruments Act, which can be drawn only on proof of execution of the dishonoured cheque and admission of the signature in the dishonoured cheque is not an admission of execution of the cheque and evidence of PW1 does not establish execution of the cheque and therefore, the conviction is not sustainable. Learned counsel also argued that the sentence awarded is excessive and it may be modified. CRRP 115/02 3 4. Though learned counsel vehemently argued that failure of the petitioner to challenge the order of remand by filing a revision will not disentitle him to challenge the conviction, confirmed in the remand order and exercising the revisional powers, this Court has ample power to go into that question, I cannot agree with the submission. The law has been laid by the Honourable Supreme Court in Jasraj Indersingh v. Hemraj Multanchand (AIR 1977 SC 1011). Their Lordships held: In an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court, It is equally true that the same High Court hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher court when it comes up in appeal before it. This is the correct view of the law. CRRP 115/02 4 The position has been followed by this Court in Mathew Varkey v. Abraham (2001 (1) KLT 432). 5. The revisional jurisdiction of this Court is limited. The challenge in this revision is only against the order passed by learned Additional Sessions Judge in the criminal appeal. The question before the learned Additional Sessions Judge in that criminal appeal was only the correctness of the sentence awarded by the learned Magistrate, pursuant to the order of remand. Learned Sessions Judge in that appeal could not have gone into the correctness of the conviction, as the earlier findings in the order of remand, confirming the conviction, is binding. The only question before the learned Additional Sessions Judge in the criminal appeal was whether the sentence awarded by the learned Magistrate is excessive or warrants interference. This Court, in the revision, can consider only that question and cannot re-open the conviction which has already become final CRRP 115/02 5 consequent to the failure of the petitioner to challenge the correctness of the order of remand by filing a revision. Hence, I cannot agree with the submission of the learned counsel that legality of the conviction is to be considered in this revision. 6. The only question for consideration is whether there is any illegality or irregularity in the sentence awarded by the learned Additional Sessions Judge. Learned Additional Sessions Judge confirmed the sentence awarded by the learned Magistrate. The cheque is for Rs.2,31,793.03. It was issued on 27.9.1996. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and adequate compensation. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence CRRP 115/02 6 awarded by the learned Magistrate, as confirmed by the learned Additional Sessions Judge, is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.2,40,000/- and in default, simple imprisonment for three months. Petitioner is directed to appear before Judicial First Class Magistrate-II, Kochi on 06.09.2010. The Magistrate is directed to execute the sentence. 29th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 115/02 7 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.115 of 2002 -------------------------- ORDER 29th July, 2010