1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.492/2008 WITH CRIMINAL REVISION APPLICATION NO.493/2008 WITH CRIMINAL REVISION APPLICATION NO. 494/2008 Praduman Kumar Sharma Applicant S/o Late Deep Chand Sharma, aged about 54 years, Occupation Business, Proprietor of M/s Kuber Builders having office at 102,Arneja Corner,Sector No.17 Vashi,Navi Mumbai ,Thane and at Kuber Group of Companies ,situated at S-32 ,Greater Kailash-I New Delhi 110 048 Vs. 1] The State of Maharashtra , Through the Office of the Public Prosecutor,High Court , Bombay. 2] Mrs.Sangita J.Sachiti, D/o Sanchiti Jayasagar Madanlal, Adult-Indian Hindu inhabitant of Bombay, Occupation-Business, residing at Flat No.703,Vainganga, Worli Sagar Co-operative Housing Society Limited,Sir PochkhanwalaRoad, Worli,Mumbai 400 025 Respondents Mr.J.A.Udaipuri a/w Mr.P.K.Kathe,for the applicant Mr.Amit Seth with Mr.Kirit Hakani for Res.no.2 CORAM: MRS.MRIDULA BHATKAR,J. DATE : 18th SEPTEMBER,2009 2 J U D G M E N T . Heard finally by consent of all the parties. 2] These Revision Applications are preferred by the applicant with a prayer that he be allowed to reconvert the Revision Application nos.190/2007, 191/2007, 192/2007 which are pending before the Sessions Court (Fast Track Court, Siwaree) into Criminal Appeals . The applicant/accused was prosecuted for the offence punishable under section 138 of the Negotiable Instruments Act by the Metropolitan Magistrate ,7thCourt, Dadar by the judgment dated 29/5/2007 and he was sentenced to suffer S.I.for two months and to pay compensation of Rs.5,75,000/- , Rs.3,50,000/- and Rs.5,75,000/- i/d to suffer S.I.for one month respectively in the three matters. The applicant/ accused against this order has preferred appeals before the Court of Additional Sessions Judge and at the time of granting bail the learned Sessions Judge has converted three appeal into three Criminal Revisions as the appeals are not maintainable for the sentence awarded under the criminal cases to the applicant/accused. The applicant/ accused thereafter again 3 made application on 9/5/2008 that these Revision Applications again be reconverted into appeals. The said applications were rejected by the Additional Sessions Judge, Siwaree by order dated 6/9/2008 i.e.Exh. A. Being aggrieved by the said order these Revision Applications are filed. 3] The learned counsel appearing for the applicant/ accused has submitted that the case was filed under section 138 of the Negotiable Instruments Act and hence it was tried summarily, u/s 143 of the Negotiable Instruments Act As it was tried summarily then under section 376(d) of the Criminal Procedure Code if fine not exceed Rs.200/- is imposed then no appeal is provided. Section 376(d) of the Criminal Procedure Code specifically states about the cases which are tried summarily by the Magistrate and the amount of fine imposed and the said section does not say anything about if the imprisonment i.e. substantive sentence imposed in the summary trial by the Magistrate. Thus, Section 376(d) is the section which decides whether the appeal can be preferred against the order passed in the summary trial or not . The Section is silent in respect of substantive sentence in the summary 4 trial so it is to be interpreted that any substantive sentence awarded in the summary trial is appelable in absence of express bar provided under section 376(d) of the Criminal Procedure Code by which the appeal in petty cases is prohibited . 4] Learned Counsel appearing for the respondents opposes these applications on the ground of maintainability. He submits that the case of the applicant/ accused falls under section 376(b) and is not covered under section 376(d) . 5] Section 376 puts bar on availing of the remedy of appeal in the case wherein the sentence is given below particular limit. It is true that section 376(d) speaks about the summary cases which are tried by the Magistrate and where fine amount is not exceeding Rs.200/-. Thus, if at all the fine amount is more than Rs.200/- in the summary trial then regular remedy of appeal is provided . 6] Section 376(d) does not say anything about the substantive sentence awarded in summary cases. This silence is explained in the earlier provisions i.e.Section 5 376(b). These sections 376(b) and 376(d) of the Criminal Procedure Code read as under. Section 376- Notwithstanding anything contained in Section 374 , there shall be no appeal by a convicted person in any of the following cases, namely- (a)....... (b)where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine ; (c)....... (d)where, in a case tried summarily, a Magistrate empowered to act under Section 260 passes only a sentence of fine not exceeding two hundred rupees : 7] Section 376(b) opens with the words ‘ where a Court of Sessions or Metropolitan Magistrate passes the sentence’ . Thus, the sentence which is awarded by the Court having particular designation is covered. Section 376(b) does not restrict to a particular class of the case, though it puts limit to extend of the substantive sentence .It has wider scope as it speaks about the penal powers of the J.M.F.C. and Sessions Court in all types of cases. So necessarily the cases which are covered under any class or 6 category wherein the sentence of imprisonment for a term not exceeding three months or fine not exceeding Rs.200/- or of both such imprisonment and fine are covered. Thus, it is an umbrella section for all types of cases not crossing the limit of sentence prescribed therein. However, section 376(d) is worded in different manner and it specifies a particular category of cases which are tried summarily and it speaks only about fine. It is to be noted that section 262 of the Criminal Procedure Code prescribes procedure for summary trial . Section 262(2) lays down the provision for awarding substantive sentence & puts limit of three months. So summary cases wherein substantive sentence cannot be given more than three months necessarily are covered under section Section 376 (b) of the Indian Penal Code which says no appeal shall lie in the cases & sentence of imprisonment is for a term not exceeding three months. Conviction in the present cases is less than three months .No fine is imposed . Hence no appeal is provided. Under these circumstances the submissions of learned counsel for the applicant/ accused are not convincing . 8] Thus, the Revision Applications for reconversion of the Criminal Revision Applications into appeals are not 7 maintainable , hence rejected. 9] The learned counsel for the applicants submits that the argument in the Revision Application has already commenced and he prays for stay that the learned Sessions Judge should not deliver the judgment atleast for two months as he may be deprived of substantive right of appeal if he succeeds. 10] Considering the repeated applications made before the learned Sessions Judge and the order passed therein and also the stage of the Revision Applications such order cannot be passed. Prayer of stay is rejected. Certified Copy is expedited. (MRS.MRIDULA BHATKAR,J.)