IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.Rev.Pet.No. 1316 of 2001() ------------------------------ CRA.78/1998 of SESSIONS COURT, TRIVANDRUM CC.138/1996 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S)/1ST RESPONDENT/COMPLAINANT --------------------- G.VIJAYAKUMAR, KUNNIL MELE PUTHEN VEEDU, KIZHAKKUMKARA, KULATHOOR P.O., THIRUVANANTHAPURAM BY ADV. SRI.L.MOHANAN SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S)/APPELLANT & 2ND RESPONDENT/ACCUSED & STATE --------------- 1. T.P.HARI, VAISHAKHAM T.C. 9/1409, SOORYA GARDENS, SASTHAMANGALAM, TVM. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 GP SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.1316/2001 -------------------- Dated this the 18th day of March, 2009 ORDER The complainant in C.C.No.138/1996 on the files of the Judicial Magistrate of First Class-IV, (Mobile), Thiruvananthapuram, is the petitioner in this Criminal Revision Petition. The complaint was filed for prosecuting the accused for an offence punishable under Section 138 of the Negotiable Instruments Act [for short ‘the Act’]. It was alleged that the accused had, in discharge of a liability, issued two cheques for an amount of Rs.30,000/- each, that the cheques on presentation were dishonoured for want of sufficient funds, that a notice demanding payment was not heeded to and that therefore, the accused has committed an offence under Section 138 of the Act. PWs1 to 4 were examined on behalf of the complainant and Exts.P1 to P8 were marked. Accused examined himself as DW1 and produced Ext.D1. Trial Court on an elaborate appreciation of the evidence, found that the accused is guilty of the offence under Section 138 of the Act. The following sentence was imposed by the learned Magistrate. Crl.R.P.1316/2001 2 The accused is sentenced to pay a fine of Rs.70,000/-, in default of payment of fine to undergo simple imprisonment for three months under Section 138 of the Negotiable Instruments Act. Out of the fine amount realised, a sum of Rs.60,000/- will be paid to the complainant as compensation under Section 357 Cr.P.C. 2. Accused filed an appeal before the Sessions Court as Crl.A.78/98. The appellate Court on re-appreciation of the evidence, found that the conviction of the accused for the offence under Section 138 of the Act is justified and affirmed the conviction. But in so far as the sentence is concerned, the appellate Court noted that the Judicial Magistrate of First Class has no jurisdiction to impose a fine of more than Rs.5,000/- in terms of Section 29 of the Code of Criminal Procedure [for short ‘the Code’]. and therefore, went on to hold that the imposition of sentence by the learned Magistrate is liable to be interfered. It was held as follows by the appellate Court:- “Once fine forms part of the sentence, no compensation could be awarded as provided under Section 357(3) of Cr.P.C. and Crl.R.P.1316/2001 3 in that case compensation could be awarded only under Section 357(1) which could only be the fine amount either full or part. As the learned Magistrate is not competent to sentence the appellant to pay fine of above Rs.5,000/-, sentence awarded by the learned Magistrate is definitely unsustainable and it to be modified to the extent of Rs.5,000/-.” 3. The complainant has come up in revision aggrieved by the judgment of the appellate Court, in so far as the sentence imposed by the Magistrate has been modified by reducing the fine amount from Rs.70,000/- to Rs.5,000/-. 4. I heard learned counsel for the petitioner and learned counsel for the accused. I have perused the orders passed by the Courts below. 5. Learned counsel for the petitioner submits that the accused was found guilty of the offence under Section 138 of the Act and the learned Magistrate had essentially directed the cheque amount to be paid to the complainant by way of compensation. It is contended that the direction to compensate the complainant is in consonance with the law laid down by the Supreme Court in this regard especially in Crl.R.P.1316/2001 4 the context of offences under Section 138 of the Act. Reference may be made in this regard in Suganthi v. Jagadeesan (2002 (1) KLT 581), Pankaj Bhai Jagji Bhai Patel v. State of Gujarat (2001 (2) SCC 595) and K.Bhaskaran v. Sankaran Vaidyan Balan (1999 (7) SCC 510). It is contended that the law has been considered by the Supreme Court in a recent decision Manish Jalan v. State of Karnataka (2008 (3) KLT 390 (SC)). 6. It is contended that even if the appellate Court had found that the Magistrate has exceeded his jurisdiction in imposing a fine of more than Rs.5,000/-, the appellate Court nevertheless had the jurisdiction to modify the sentence by directing compensation to be paid in terms of Section 357(3) of the Code. Learned counsel for the petitioner further contends that since the appellate Court had failed to do so and now the complainant is left in a situation where he will have to be satisfied with the payment of an amount of Rs.5,000/- alone as compensation, it is a poor recompense for two cheques for an amount of Rs.30,000 each having been dishonoured. Learned counsel urges that therefore, Crl.R.P.1316/2001 5 this Court sitting in revision as against the order passed by the appellate Court can interfere with the order passed by the appellate Court and also interfere with the order passed by the learned Magistrate and impose a suitable sentence on the accused. 7. Learned counsel for the respondent, accused, contends that the revisional powers of this Court under Section 397, are sought to be invoked in relation to the order passed by the appellate Court. Learned Sessions Court was considering an appeal against conviction. Therefore, the powers of the appellate Court are circumscribed by Section 386 of the Code. Unless this Court is in a position to find any error of jurisdiction or irregularity or impropriety in the judgment of the learned Sessions Judge, within the parameters mentioned in Section 397 of the Code, this Court should not interfere with the same. If this Court cannot interfere with the judgment of the appellate Court, the question of revisional powers being exercised in relation to the order passed by the Magistrate also does not arise, it is contended. 8. It cannot be gainsaid that the Supreme Court has Crl.R.P.1316/2001 6 stressed the principle that the Courts which are called upon to impose suitable sentence for the offence punishable under Section 138 of the Act should bear in mind the principles which inform the provisions of Section 357 of the Code. The social purpose which underlines and permeates Section 357 of the Code has been eloquently stated by the Supreme Court in Hari Singh v. Sukhbir Singh & Others (1988 (4) SCC 551). Learned counsel for the petitioner is correct in submitting that the Magistrate had kept in mind substantial interests of justice while directing that an amount of Rs.60,000/- be paid to the complainant under Section 357 of the Code, while passing an order of sentence after finding the accused guilty of the offence under Section 138 of the Act. But the Magistrate had directed the compensation to be paid out of a fine amount of Rs.70,000/- which he could not have imposed in view of the ban under Section 29 of the Code. The sentence was therefore rightly interfered with by the learned Sessions Judge. No doubt, this resulted in a drastic reduction of the amount of compensation that could have come the way of the complainant as an adequate recompense for the dishonour of the cheques. But does it enable me sitting in revision, against the judgment of the learned Sessions Judge Crl.R.P.1316/2001 7 allowing in part an appeal filed by the accused against the order of conviction and sentence, to interfere with the order passed by the learned Magistrate ? In my view, same cannot be done for more than one reason. 8. Firstly, when the revisional powers of this Court under Section 397 of the Code are invoked, this Court could interfere with the order passed by the inferior criminal Court only when this Court is convinced that the order passed by the said Court is incorrect, illegal or improper. Such correctness, illegality or impropriety may relate to the finding of guilt or sentence recorded or passed. It could also relate to the regularity of the procedure followed by such inferior Court. But what is of importance is that the revisional Court will not interfere with the order passed by the inferior criminal Court, unless there is an error or illegality which has to be addressed. The exercise of revisional jurisdiction is conditional upon this Court addressing an illegality, irregularity or impropriety in an order or proceedings passed by the Court below or an action taken by the Court below, as the case may be. I am concerned with the judgment of the Sessions Court rendered in an appeal against the conviction, preferred by the accused. My attempt is therefore to Crl.R.P.1316/2001 8 ascertain whether there is any illegality or impropriety or irregularity in the judgment of the appellate Court. 9. Affirmation of the conviction of the accused is not called in question as the accused has not filed a revision. It is only the modification of the sentence effected by the appellate Court that is called in question. I have already referred to the reasoning given by the appellate Court, for interfering with the sentence imposed by the Magistrate. Does it suffer from any error ? The appellate Court is justified or even obliged to interfere with the sentence imposed by the Magistrate which was plainly in excess of the jurisdiction of the Magistrate, in terms of Section 29(2) of the Code. If that be so, the judgment of the learned Sessions Judge modifying the sentence, not only does not suffer from any error or illegality but also requires to be affirmed as one which was passed by the Court because the Court was bound to do so. 10. Learned counsel for the petitioner submits that assuming this be so, it still does not fetter the powers of this Court sitting in revision from taking note of the fact that illegality was committed by the learned Magistrate and Crl.R.P.1316/2001 9 therefore, this Court should interfere with the order passed by the Magistrate, in so far as the sentence is concerned and suitably modify the same and then pass an order in terms of Section 357(3) of the Code. Learned counsel for the petitioner submits that this Court can, therefore, even while affirming the judgment of the lower appellate Court or even on finding that the judgment of the lower appellate Court does not suffer from any illegality, nevertheless address the illegality which indisputably had permeated the sentence imposed by the Magistrate. Can this be done ? 11. I am afraid that this cannot be done. Firstly, while considering a revision preferred by the complainant against the judgment of the lower appellate Court, which was rendered in an appeal preferred against an order of conviction, I will have to consider whether the power exercised by the appellate Court is in terms of Section 386 of the Code. Even if I find that the judgment of the appellate Court could be interfered with in revision, my revisional power under Section 397 of the Code in such circumstances cannot exceed the power of the appellate Court under Section 386 of the Code, in circumstances where the revision is preferred against the appellate judgment of the Sessions Crl.R.P.1316/2001 10 Court, rendered in an appeal against the conviction of the accused. Powers of the appellate Court are those which are mentioned under Section 386 of the Code which reads as follows:- 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 trial, as the case may be, or find him guilty and pass sentence on him according to law; (b). in an appeal for a conviction - (i). reverse the finding and sentence and acquite or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction Crl.R.P.1316/2001 11 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 (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 Crl.R.P.1316/2001 12 reverse such order; 12. Thus, in terms of Section 386(b) of the Code, in an appeal from a conviction, the appellate Court is entitled to reverse a finding of the Court and acquit or discharge the accused. Appellate Court is also entitled to alter the finding by maintaining the sentence. However, the appellate Court may with or without altering the fine, alter the nature of the extent of the sentence but not so as to enhance the same. In other words, in an appeal against conviction, even while confirming the conviction, it was not open to the appellate Court, while retaining the finding as such, and while altering the sentence, to do so in such a manner as to enhance the sentence as such. The appellate Court was therefore, perfectly within its jurisdiction while confirming the conviction to reduce the fine amount. Since the Magistrate has plainly exceeded his jurisdiction, appellate Court was bound to interfere with the same and it has so interfered. Thus, the fine amount was reduced from Rs.70,000/- to Rs.5,000/- which alone was within the jurisdiction of the learned Magistrate. The appellate Court no doubt, had the power to award compensation as the learned Magistrate himself could have awarded compensation. But where a fine is imposed, Crl.R.P.1316/2001 13 was it open to the Magistrate to have awarded compensation, instead of the imposition of fine. Going by Section 357 of the Code, compensation can be awarded by the Court, to compensate any person for any loss or injury suffered by him by reason of the act of the accused person, only when the Court imposes a sentence in which fine does not form a part. In other words, where a fine is imposed, compensation cannot be awarded under Section 357(3) of the Code. Where fine is imposed, Court can nevertheless award compensation under Section 357(1) of the Code. But in such circumstances, compensation will have to form part of the fine. It therefore, was not open to the Magistrate, since he had imposed fine, to have directed payment of compensation otherwise than out of the fine amount. The Magistrate had also not imposed a sentence of imprisonment. Thus the Magistrate had not exercised the power in the instant case, under Section 357(3) of the Code, while directing compensation to be paid. Learned Magistrate had exercised the power under section 357(1) of the Code though he had exceeded his jurisdiction in the imposition of fine. Crl.R.P.1316/2001 14 13. In such circumstances, the appellate Court in exercising powers under Section 386 of the Code could not have, while considering the propriety of the sentence, imposed a fine in excess of Rs.5,000/- nor directed payment of compensation in terms of Section 357(3) of the Code. Had the learned Magistrate passed a sentence including a sentence of imprisonment with or without fine, the appellate Court could have considered the appeal against the conviction, altered the sentence of imprisonment, or retaining the sentence of imprisonment, directed payment of compensation after deleting the imposition of fine. That would be a legitimate exercise of the appellate power under Section 386 of the Code, without enhancing the sentence, which alone is proscribed under Section 386 of the Code. If this be the extent of power that the appellate Court could have exercised under Section 386 of the Code then, is it open to me sitting in revision against the judgment of the appellate Court exercise a power in excess of what is contemplated or provided under Section 386 of the Code ? I am of the confirmed view that it cannot. In such circumstances, obviously apart from the fact that I do not find any error in the judgment of the lower appellate Court, it would be beyond my jurisdiction to alter the sentence so Crl.R.P.1316/2001 15 imposed in such a manner as to direct payment of compensation in terms of Section 357(3) of the Code. 14. There is yet another reason which impells me to come to the same conclusion that the revisional powers of this Court under Section 397 of the Code cannot be extended to orders passed by the Magistrate. An appeal at the instance of the complainant could not have been preferred against an order of conviction. Therefore, though Section 401(4) of the Code could not have stood in the way of revisional power being exercised in relation to the order of the Magistrate, before an appeal was preferred at the instance of the accused, such power is not available to be exercised in relation to the order of the Magistrate at this stage, for the simple reason that the order of the Magistrate has already been set aside by the learned Sessions Judge. In these circumstances, even if I am persuaded to take the view that the learned Magistrate should have, while passing an order of sentence, directed compensation to be paid under Section 357(3) of the Code after imposing a suitable sentence of imprisonment, such order cannot be passed by this Court at this stage. Crl.R.P.1316/2001 16 For all these reasons, I am of the view that the judgment of the appellate Court does not warrant any interference. Criminal Revision Petition is therefore bereft of merit and hence dismissed. V.GIRI, Judge mrcs