THE HONOURABLE MR v. A.B.Varadarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 19.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1951 of 2003andCrl.M.P.No.12947 of 2003G.Sankar ..Petitioner/Accusedvs.A.B.Varadarajan ..Respondent/ComplainantPrayer: This Revision has been preferred under section 397 & 401 ofCr.P.C.against the judgment dated 04.11.2003 passed by the AdditionalSessions Judge (FTC), Kancheepouram in C.A.No.39 of 2003, which was filedagainst the judgment dated 1.4.2003 made in C.C.NO.400/2001 on the file ofthe Judicial Magistrate No.I, Kancheepuram.For Petitioner : Mr.T.R.RaviFor Respondent : Mr.P.MohanORDER This Revision has been preferred against the judgment passed inC.A.No.39 of 2003 on the file of the Additional Sessions Judge (FTC),Kancheepuram. A private complaint was filed by the complainant/respondentunder Section 200 of Cr.P.C., for an offence under Section 138 of theNegotiable Instruments Act on the ground that Ex.P.7 and Ex.P.8 chequesfor Rs.1,80,000/- and for Rs.10,000/- respectively drawn by the accused infavour of the complainant on 3.9.2001 on presentation for collection weredishonoured by Indian Overseas Bank, Ennaikara Theru branch, Kancheepuram. https://hcservices.ecourts.gov.in/hcservices/

2. The case was taken on file by the learned Judicial MagistrateNo.I, Kancheepuram, as C.C.No.400 of 2001 and on appearance of the accusedon summons copies under Section 207 of Cr.P.C., were furnished to theaccused and when the offence was explained to the accused and questionedthe accused pleaded not guilty. 3. Before the trial Court P.W.1 to P.W.3 were examined and Ex.P.1 toEx.P.16 were marked. The case of the complainant as narrated in theprivate complaint was spoken to by P.W.1. The evidence of P.W.1 wascorroborated by P.W.2 and P.W.3, who are bank officials. 4. After going through the oral and documentary evidence, the learnedtrial judge has come to a conclusion that the offence under Section 138 ofthe Negotiable Instruments Act has been made out against the accused andaccordingly the learned Judicial Magistrate has convicted and sentencedthe accused to pay a fine of Rs.500/- with default sentence and directedto pay a compensation of Rs.1,80,000/- to the complainant under Section357 (3) of Cr.P.C. Aggrieved by the findings of the learned trial Judge,the accused has preferred an appeal before the learned Additional SessionsJudge (FTC), Kancheepuram, in C.A.No.39 of 2003. The first appellatejudge, after scanning the evidence both oral and documentary let in beforethe trial court and after hearing the counsel for the appellant as well asthe counsel for the respondent, has come to the conclusion that thesentence imposed by the trial judge is not in accordance with law andaccordingly allowed the appeal thereby setting aside the judgment of thetrial Court and remanded the mater for imposing punishment in accordancewith law. The said judgment of the first appellate Court has beenchallenged by the accused in this revision.5. Now the point for determination in this revision is whether theorder of the first appellate Court is in accordance with law or againstthe provisions of law as contended by the learned counsel for the revisionpetition to warrant any interference by this Court?6.The Point:- 6(a) A reading of the operative portion of the judgment of thefirst appellate Court will go to show that the first appellate Court hasallowed the appeal but has set aside the sentence and remanded to thetrial Court for imposing a punishment in accordance with law. Thecircumstance which made the first appellate Court to give such a findingis in the judgment the trial Court has convicted and sentenced theaccused under Section 138 of the Negotiable Instruments Act to pay a fineof Rs.500/- with default sentence and also has directed the accused to paya compensation of Rs.1,80,000/- under Section 357(3) of Cr.P.C., withdefault sentence. The learned first appellate Court has correctly heldthat a compensation under Section 357(1) of Cr.P.c., can be awarded onlyfrom out of the fine amount imposed by the trial court and not underSection 357(3) of Cr.P.C. The said finding of the learned trial judge is https://hcservices.ecourts.gov.in/hcservices/ in conformity with law. But as pointed out by the learned counsel for therespondent that the direction of the first appellate court to the trialCourt only to enhance the punishment after confirming the conviction isnot proper in lieu of the provision contained in Section 386 of Cr.P.C.Section 386 of Cr.P.C., reads as follows:-"Powers of the Appellate Court_After perusing such record and hearing the appellant or hispleader, if he appears, and the Public Prosecutor, if heappears, and in case of an appeal under Section 377 or section378, the accused, if he appears, the Appellate Court may, if itconsiders that there is no sufficient ground for interfering,dismiss the appeal, or may_(a) in an appeal from an order of acquittal, reverse such orderand direct that further inquiry be made, or that the accused bere-tried or committed for trial, as the case may be, or find himguilty and pass sentence on him according to law;(b) in an appeal from a conviction_(i)reverse the finding and sentence and acquit or dischargethe accused, or order him to be re-tried by a Court ofcompetent jurisdiction subordinate to such AppellateCourt or committed for trial, or(ii)alter the finding, maintaining the sentence, or(iii)with or without altering the findings, alter thenature of the extent, or the nature and extent, of thesentence, but not so as to enhance the same;(c) in an appeal for enhancement of sentence_ (i) reverse the finding and sentence an acquit ordischarge the accused or order him to be re-tried by aCourt competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alterthe nature or the extent, or the nature and extent, ofthe sentence, so as to enhance or reduce the same;(d) in an appeal from any other order, alter or reverse suchorder;(e) make any amendment or any consequential or incidentalorder that may be just or proper;Provided that the sentence shall not be enhanced unless theaccused has had an opportunity of showing cause against suchenhancement: https://hcservices.ecourts.gov.in/hcservices/ Provided further that the Appellate Court shall not inflictgreater punishment for the offence which in its opinion theaccused has committed, than might have been inflicted for thatoffence by the Court passing the order or sentence under appeal.6(b) Focusing the attention of this Court to Sub-clause (b) ofSection 386 of Cr.P.C., the learned counsel for the respondent wouldcontend that the order of the first appellate Court directing thetrial Court after remanding the matter with a direction to decide onlythe punishment is not in accordance with law. The learned counsel wouldrepresent that in an appeal for conviction the appellate Court can reversethe finding and sentence or acquit or discharge the accused or order himto be retried by a court of competent jurisdiction subordinate to suchappellate Court or committed for trial. Apart from this, the firstappellate Court cannot remand the matter only for the purpose of awardingsentence alone which is improper and illegal. Both the learned counselwould fairly concede that for the purpose of awarding sentence a directioncannot be given by an appellate Court to the trial Court after settingaside the judgment of the trial Court. So in my view that the Judgment ofthe first appellate directing the trial Court for imposing only punishmentafter remand is illegal and in contravention of the provision contemplatedunder sub-clause (b) of Section 386 of Cr.P.C. After setting aside thejudgment the first appellate Court ought to have either acquitted ordischarged the accused or ordered for retrial. But unfortunately in thiscase, the first appellate Court has ordered the trial Court to give onlypunishment which is not contemplated under law. Under such circumstance,it becomes necessary for this Court to interfere with the judgment of thefirst appellate Court in C.A.No.39 of 2003 on the file of the AdditionalSessions Judge, Kancheepuram. Point is answered accordingly.7. In fine, the revision is allowed and the trial Court shall conductretrial of the case and dispose of the same in accordance with law withina period of two months from the date of receipt of this order. ConnectedCrl.M.P.No.12947 of 2003 is closed.ssvSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Sessions Judge (FTC), Kancheepuram.2. Through:- The Principal Sessions Judge, Kancheepuram.3. The Judicial Magistrate No.I, Kancheepuram.4. -do-Thro' The Chief Judicial Magistrate, Kancheepuram.+1 cc to Mr.N.Kanakaraj, Advocate Sr.No.25977.+1 cc to Mr.M.Manoj Sreevalsan, Advocate Sr.No.25900.VC(CO)dcp/26.4.07Crl.R.C.No.1951 of 2003