IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 42 of 2001() -------------------------------------- CRA.133/1999 of SESSIONS COURT, MANJERI ST.1699/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... REVN. PETITIONER(S): RESPONDENT/ COMPLAINANT ------------------------------- V.MANUKUTTAN, VETTUMMEL HOUSE, KARAD P.O., NILAMBUR AMSOM DESOM, MALAPPURAM DISTRICT BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): APPELLANT/ACCUSED -------------------------- 1. ABDUL SAMMED , S/O. KOYA HASSAN HAJI (MANUKOYA) MUNDANPALLIKKAL HOUSE, V.K.ROAD, NILAMBUR. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.MRI.ANIL THOMAS(T) FOR R1 PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 42 OF 2001 ---------------------------------------- Dated this the 2nd day of June, 2009 ORDER This revision is at the instance of the complainant and in challenge of the sentence as modified by the Appellate Court in a prosecution under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner alleged that he advanced Rs.40,000/- to respondent No.1 during the first week of March, 1997 and respondent No.1 issued Cheque dated 5.5.1997 for the discharge of that liability, the cheque was dishonoured for insufficiency of funds and on getting intimation about that, petitioner issued notice to respondent No.1 intimating the dishonour and demanding payment of the amount. In spite of service of notice on respondent No.1, he did not pay the amount. Petitioner examined himself as PW3 and testified to his case. He also examined PWs 1 and 2 and marked Exts.P1 to P9 in proof of his case. Learned magistrate accepted the case of the petitioner, found that respondent No.1 has committed the offence, convicted him and imposed a fine of Rs.40,000/-. Respondent No.1 took Crl.R.P.No.42/2001 2 up the matter in appeal. Learned Sessions Judge confirmed the conviction, but found that the fine imposed exceeded permissible limit under Section 29(2) of the Code of Criminal Procedure and hence modified the sentence as fine of Rs.5,000/-. The petitioner/complainant is aggrieved and hence this revision. Learned counsel contends that the fine imposed by the appellate court is without taking into account the sentence provided for the offence under Section 138 of the Act and the provision for payment of compensation under 357(3) of the Code of Criminal Procedure. Learned counsel contented that if the appellate court found the sentence to be illegal, it should have remitted the case to the trial court to award proper sentence. According to the learned counsel for respondent No.1, there is no reason to interfere in revision. 2. It is true that respondent No.1 has not preferred any revision against the judgment of the appellate Court. Nor did the petitioner challenge the sentence imposed by the trial court by way of a revision. But still, it is open to the revisional Court to consider the legality, regularity and propriety of the judgment/order or other proceedings of the subordinate courts. The judgment of the trial court now stands merged in Crl.R.P.No.42/2001 3 the judgment of the appellate court. Hence, in such circumstances, even in the absence of the revision at the instance of respondent No.1 against the judgment of the appellate court, it is open to the petitioner to challenge the judgment of the appellate court to the extent it is not in conformity with the provisions of the Act as to the sentence or, if it is disregarding the objection of legislation and the provision regarding payment of compensation to the injured party as contemplated under Section 357 of the Code of Criminal Procedure. When an illegality, irregularity or impropriety in the judgment/order or proceedings of any subordinate criminal court comes to the notice of the High Court even otherwise than at the instance of a party to the proceeding, it is the function of this Court as a supervisory authority to exercise even suo motu power under Section 401 of the Code and correct such illegality, irregularity and impropriety. Therefore, this court is justified in entertaining the revision against the sentence part of the judgment of the appellate court. 3. Certainly the trial court was not legally correct in imposing fine of Rs.40,000/- in view of the extent of power of Crl.R.P.No.42/2001 4 a magistrate of the First Class had in the matter of imposition of fine for the offence under Section 138 of the Act as law stood on the date of commission of that offence and hence the appellate court was justified in interfering with the sentence imposed by the trial court. But, the appellate court did not take into consideration that Section 357 (3) of the Code of Criminal Procedure enabled the Court to provide compensation for the injured party. If the appellate court found that the sentence imposed by the trial court was illegal, but no enhancement of sentence was possible on the appeal preferred by respondent No.1, the proper course open to the appellate court was to set aside the sentence and remit the case to the trial court to award proper sentence. At any rate, this Court sitting in revision is entitled to do so, if the sentence as modified by the appellate court is otherwise not in accordance with the object of the legislation and affected the right of the petitioner. 4. This Court in various decisions has pointed out the necessity to invoke Section 357(3) of the Code to provide solace to the party who suffered injury at the hands of the offender. In this case as of the courts below found, the Crl.R.P.No.42/2001 5 transaction was in the year 1997 and the cheque was dishonoured during that time. Respondent No.1 has not discharged his liability so far. Petitioner has thus been put to loss. It is no relief to the petitioner to tell him that respondent No.1 has been sentenced to pay fine of Rs.5,000/-. The sentence as modified by the appellate court is certainly legal but not proper as it ignored the loss caused to the petitioner. Oxford Dictionary defines “propriety” as meaning “fitness; appropriateness, aptitude; suitability; appropriateness, to the circumstances or condition conformity with requirements... justness etc. On the above factual situation I am inclined to think that the sentence awarded by the appellate court is not appropriate or just in the facts of the case which calls for interference in exercise of this court's revisional power. The proper course is to set aside the sentence as imposed by the trial court as well as modified by the appellate court and remit the matter to the trial court to pass appropriate sentence taking into account the law as on the date of commission of the offence and the object of the legislation. This revision petition succeeds. The judgments of the courts below to the extent it pertained to the sentence are set Crl.R.P.No.42/2001 6 aside and the matter is remitted to the trial court for fresh consideration of the question of sentence in the light of observations made above. Parties are directed to appear in the trial court on 30.6.2009. THOMAS P. JOSEPH , JUDGE Acd