IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 Crl.Rev.Pet.No. 3304 of 2009() ------------------------------ CRA.399/2006 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.284/2005 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KASARAGOD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- ANWAR HUSSAIN, 50 YEARS,S/O.SHEIK BUDDEN SAHIB, UPPALA FURNITURE WORKS,HANAFI NAGAR, UPPALA,KASARAGOD. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. SHEIK IBRAHIM, AGED 69,S/O.ISMAIL,FIRDOUSE NAGAR, MAJAL,UPPALA,KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN SRI.T.SETHUMADHAVAN FOR R-1 SRI.PUSHPARAJAN KODOTH FOR R-1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.3304 OF 2009 ----------------------------------- Dated this the 22nd day of August, 2011 O R D E R Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. Negativing the plea of not guilty canvassed by the accused, on his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for a period of four months and to pay a fine of Rs.2 lakhs with default term of imprisonment for two months. When he preferred an appeal challenging the conviction, the learned Sessions Judge affirming the conviction, remitted the case to the court below holding that the sentence imposed directing payment of fine in excess of Rs.5,000/- is beyond the jurisdiction conferred on the learned Magistrate in imposing fine under sub section (2) of Section 29 of the Code of Criminal Procedure. As against the decision so rendered, remitting the case for reconsideration of the question of Crl.R.P.NO.3304/2009 2 sentence, after confirming the conviction passed against him, the revision petitioner/accused has preferred this revision. 2. I heard the counsel on both sides. Prima facie, the remission made by the learned Sessions Judge, which was proceeded on the basis of the decision rendered by the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) was not correct in view of the amendment brought to Section 143 of the N.I.Act, which empowers the learned Magistrate to impose a fine exceeding Rs.5,000/-. Complaint in the present case is seen filed much later to the incorporation to the amendment as stated above to Section 143 of the N.I.Act, which came into effect from 6.2.2003. So much so, the remission order passed by the learned Sessions Judge directing the learned Magistrate to reconsider the sentence imposed against the accused was improper and unsustainable. 3. Serious challenges have been raised by the accused that the cheque involved had been collected in blank form with signature alone and to sustain the defence so raised, apart from Crl.R.P.NO.3304/2009 3 tendering oral evidence, documentary materials were also produced before court, is the submission of the learned counsel for the revision petitioner/accused. As if the only challenge that was pressed before the appellate court related to the sentence with respect to the imposition of fine, ignoring the other challenges assailing the conviction rendered by the learned Magistrate the finding of guilt was affirmed by the learned Sessions Judge, submits the counsel. A reappraisal of the evidence by the appellate court to examine the challenges raised in the appeal is necessary, which otherwise would cause improper injury to the accused and casualty to justice is the further submission of the counsel. 4. On the other hand, the learned counsel appearing for the 1st respondent/complainant would contend that the only point that was canvassed before the appellate court was regarding the challenge raised over the sentence, and that being so, a further look into the correctness of the conviction entered, which is otherwise proved by the materials tendered in the case, is not called for. Crl.R.P.NO.3304/2009 4 5. After going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find that the revision petitioner/accused has to be provided an opportunity to address arguments on whatever challenges that he has got against the conviction rendered against him by the learned Magistrate especially in the facts and circumstances presented in the case where he had taken a defence that the cheque was given in blank form with signature alone and also produced materials to substantiate that plea. Reappraisal of the evidence by the appellate court, in such circumstances, to examine the correctness of the finding rendered by the leaned Magistrate, is absolutely essential to meet the ends of justice. 6. Setting aside the order of remission passed by the appellate court under the impugned judgment, the case is sent over to that court directing to hear the appeal afresh and dispose it in accordance with law. The learned Sessions Judge shall give top priority for hearing of the case and, at any rate, to dispose the same after affording reasonable opportunity of hearing to the Crl.R.P.NO.3304/2009 5 counsel on both sides within three months from the date of receipt of a copy of this order. 7. Parties are directed to mark their appearance before the Judicial First Class Magistrate Court - II, Kasaragod on 22.09.2011. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.NO.3304/2009 6