Kerala High Court
K.P. Ishaque vs Reveendran Thampan on 10 March, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 428 of 2001()
1. K.P. ISHAQUE
... Petitioner
Vs
1. REVEENDRAN THAMPAN
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :10/03/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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Crl.R.P. No.428 of 2001-A
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Dated this the 10th day of March, 2010
ORDER
Basant,J.
(i) Does a criminal appellate court, in an appeal against conviction, have the power under Sec.386(b)(i) of the Code of Criminal Procedure (hereinafter referred to as `the Code') to direct re-trial of the appellant by the court below for the purpose of imposing an appropriate and just punishment after upholding the conviction and setting aside the sentence?
(ii) Is the expression "reverse the finding and sentence"
in Sec.386(b)(i) of the Code elastic enough to justify it being read as "reverse the finding and/or sentence"?
(iii) If injustice results, can the revisional court invoke its powers of revision notwithstanding the fact that the lower appellate court has not technically committed any error?
(iv) Does the decision of the learned single Judge in Crl.R.P. No.428 of 2001 -: 2 :- Vijayakumar v. State (2009(3) KLT 499) lay down the law on this aspect correctly?
2. These questions arise for consideration in this revision petition which has come up before us on a reference made by a single Judge (one of us). We have initially considered the question whether it would be correct for a Judge making the reference to be part of the Bench hearing the reference also. We are unable to perceive any impropriety in such course. We have not been able to locate any precedent which states that such procedure is incorrect or inapposite. Our anxious consideration of the precedents suggests that there has been several instances at the Apex Court and High Courts where such references have been heard by Benches that include the Judge/Judges making the reference. We are satisfied that there is absolutely no impropriety in such a course being followed. Nay, we feel that it may be unnecessary and unjustified abdication of jurisdiction by a Judge if he avoids the matter when there is no other or better reason. We have, after discussing this question at the bar initially, proceeded to hear the reference.
3. To the vital and crucial facts first. This revision petition is filed by the complainant in a prosecution under Sec.138 of the Crl.R.P. No.428 of 2001 -: 3 :- Negotiable Instruments Act (hereinafter referred to as `the Act') pointing out the injustice that has resulted on account of the improper procedure followed and orders passed by the trial court as well as the appellate court. To put it in a nutshell, the facts can be stated thus: The cheque is for an amount of Rs.1,37,000/-. The cheque is dated 6/10/1995. At the end of the trial, the trial court entered a verdict of guilty and conviction against the accused. The trial court proceeded to impose a sentence of fine only. The accused was sentenced to pay a fine of Rs.1,40,000/- and in default, to undergo simple imprisonment for a period of one year. Out of the fine amount, an amount of Rs.1,37,000/- was directed to be paid to the complainant under Sec.357(1) of the Code.
4. The accused felt aggrieved and approached the Sessions Court with an appeal under Sec.374 of the Code against the verdict of guilty, conviction and sentence. The appellate court found no reason to interfere with the finding of guilt and conviction; but the appellate court following the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) took the view that the sentence of fine imposed is illegal inasmuch as it exceeds the pecuniary limits prescribed under Sec.29 of the Code. The learned appellate Crl.R.P. No.428 of 2001 -: 4 :- Judge proceeded to pronounce the impugned judgment. The sentence of fine was modified and reduced to a fine of Rs.5,000/-. The default sentence was reduced to simple imprisonment for a period of three months.
5. The accused obviously is very happy and rejoiced with the appellate judgment and he has not chosen to challenge the same. The complainant finds himself in a quandary. He faces an unfortunate predicament. The trial court's order, though not in conformity with Sec.29 of the Code, had ensured that justice was done to him. He did not feel the necessity to challenge the same because, according to him, the order whether technically right or wrong, had ensured that justice was done to him.
6. The appellate court had with it an appeal against conviction under Sec.374 of the Code. The appellate court felt that it can exercise only the powers under Sec.386(b)(i) to (iii) of the Code. The appellate court therefore appears to have felt that it can do nothing better than to reduce the sentence of fine to Rs.5,000/-. It could not impose any substantive sentence as that would have offended the embargo under Sec.386(b)(iii) of the Code which mandates that the sentence should not be enhanced in an appeal against conviction. In the absence of a substantive sentence of imprisonment, it could not issue any Crl.R.P. No.428 of 2001 -: 5 :- direction under Section 357(3) Cr.P.C. The appellate court appears to have felt that it has no power to direct re-trial of the appellant to impose an appropriate and just sentence. The appellate court obviously felt fettered as it could not invoke the revisional jurisdiction suo motu in a pending appeal in view of the mandate in John Samuel v. State of Kerala (1985 KLT
902). The learned Sessions Judge does not appear to have contemplated any other course which was available to him to ensure that justice was done in the given circumstances. The learned Sesseions Judge, meekly (if we may call it so) reduced the sentence of fine from Rs.1,40,000/- to Rs.5,000/- and felt that his job was over.
7. The complainant/revision petitioner laments that proceedings of the courts below have led to gross failure/miscarriage of justice. The complainant prays that the revisional jurisdiction of this Court under Sec.401 of the Code may be invoked to ensure that justice prevails and miscarriage/ failure of justice is prevented. An appropriate sentence which will be just and fair to all concerned may be imposed invoking the revisional jurisdiction under sec.401 of the Code, contends the counsel.
8. The learned counsel for the accused, on the contrary, Crl.R.P. No.428 of 2001 -: 6 :- contends that the order of the trial court was obviously illegal as the learned Magistrate had overlooked and ignored the upper limit of fine which he was jurisdictionally competent to impose under Sec.29 of the Code. Under Sec.386(b) of the Code, an appellate court has no power to enhance the sentence. The appellate court could not therefore have modified or altered the sentence of fine into a substantive sentence of imprisonment as that would offend the mandate that an appellate court in an appeal against conviction by the appellant cannot enhance the sentence. Consequently the appellate court could not have issued any direction under Sec.357(3) of the Code as the said provision can be made use of only when a substantive sentence of imprisonment is imposed. The learned counsel for the accused urges that this Court, in revision, cannot exercise any powers which are not available to the appellate court and, in these circumstances, this Court cannot interfere with the impugned appellate judgment passed by the learned Sessions Judge. The learned counsel for the accused places reliance on the decision in Vijayakumar (supra) to press his contention that the powers of the revisional court cannot exceed the powers of the appellate court whose decision is being challenged in revision.
Crl.R.P. No.428 of 2001 -: 7 :-
9. It is in this context that the four questions referred above have come up for consideration before us. The matter was heard by another Bench earlier. One of the Hon'ble Judges on that Bench has demitted office before completing the hearing. It is accordingly that the matter has come up before us. Shri. Babu S. Nair, the learned counsel for the complainant, Shri. Philip J. Vettickattu, the learned counsel for the accused and M/s. Gopakumaran Nair, P. Vijayabhanu and S. Rajeev, the learned counsel who offered assistance to this Court as amicus curiae have all been heard.
10. We have not a semblance of doubt on the question that the orders of the trial court as modified by the appellate court has resulted in failure/miscarriage of justice. There is and there can be no dispute on that aspect. Sec.138 of the N.I. Act reflects the anxiety of the legislature to introduce a new healthy commercial morality through the instrumentality of the penal law. These are days when the concept of plastic money rules modern economies. It is not necessary for a person to carry cash every where. A transaction in cheque must be as effective as a transaction in cash. This is the legislative philosophy and dream that triggers and inspires Sec.138 of the N.I. Act. The introduction of such new commercial morality is attempted by Crl.R.P. No.428 of 2001 -: 8 :- amendments carried out in the N.I Act. During the twilight period of enforcement of the law; until the polity imbibes the spirit and gravity of this new generation crime, all courts must show anxiety to ensure that an unduly deterrent substantive sentence of imprisonment is avoided. At the same time, Courts must ensure that the interests of justice are adequately met by the sentence imposed in prosecutions under Sec.138 of the N.I. Act. Courts must ensure that complainants who have extended a helping hand to the system in its quest to introduce such new commercial morality are not left in the lurch and are not obliged to run from Court to Court for the comprehensive redressal of their genuine grievances. Courts have, in these circumstances, been resorting to the course of imposing a lenient substantive sentence of imprisonment till rising of court and simultaneously issuing directions under Sec.357(3) of the Code to pay compensation coupled with a default sentence. Imposition of default sentence has been held to be valid and legal by a series of decisions of the Supreme Court resting with the decision in Vijayan v. Sadanandan (2009 (2) KLT 618 SC)). It is elementary and it does not call for the wisdom of Solomon to conclude that in a prosecution under sec.138 of the Act in respect of a cheque for Rs.1.37 lakhs, imposition of the flea bite Crl.R.P. No.428 of 2001 -: 9 :- sentence of fine of Rs.5,000/- shall not meet the ends of justice and would, in turn, result in failure/miscarriage of justice. The Hon'ble Supreme Court in Suganthi Sureshkumar v. Jagdeeshan [(2002) SC 681] has adverted to the compelling need to impose a just sentence in a prosecution under Section 138 of the N.I Act.
11. All courts - original, appellate, revisional, or constitutional, must have an ultimate and abiding commitment to the interests of justice. They should all realise that not merely the letter of the law but dispensation of justice is important while disposing of cases. If any court feels satisfied in the absence of better reasons that it has done justice by imposing a flea bite sentence of fine of Rs.5,000/- in a prosecution under Sec.138 of the Act in relation to a cheque for an amount of Rs.1.37 lakhs, we can only say that such court has unwittingly perpetrated injustice of the gross variety. We therefore come to the firm conclusion that the modified sentence to pay a fine of Rs.5,000/- has resulted in gross injustice.
12. How can injustice be prevented? What should the appellate court in the given circumstances have done? Has it failed and if so, where and how has it failed? This is the context in which the four questions initially raised by us arises for Crl.R.P. No.428 of 2001 -: 10 :- consideration before us.
13. Question Nos.(i) & (ii): We shall now consider questions (i) and (ii). The Code of Criminal Procedure contemplates various types of appeals from orders/judgments of subordinate criminal courts. There can be appeals against acquittal (Sec.378 of the Code); against conviction (Sec.374 of the Code); for enhancement of sentence (Sec.377 of the Code) and appeals against other orders (like appeals under Secs.449, 454 of the Code etc.). Sec.386 of the Code deals with the powers of the appellate court while dealing with such appeals. We feel that it will be apposite in this context to extract Sec.386 of the Code which reads as follows:
Section 386: 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--
Crl.R.P. No.428 of 2001 -: 11 :-
(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 from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction 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 Crl.R.P. No.428 of 2001 -: 12 :-
(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 reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
(emphasis supplied) Crl.R.P. No.428 of 2001 -: 13 :-
14. We shall initially deal with a contention raised regarding Clause (e) of Sec.386 of the Code. Clauses (a) to (d) of Sec.386 of the Code specifies the nature of the powers of an appellate court and the courses/options available to it while dealing with one of the four categories of appeals referred to already. Clause (e) speaks of the power to amend or make any consequential or incidental order that may be just and proper. A contention is raised by Advocate Mr.S. Rajeev, who was requested to assist this Court as amicus curiae, that Clause (e) is wide enough to pass such other orders which may not be strictly justified by Clauses (a) to (d). According to Mr.S. Rajeev, invoking the power under Clause (e) even an enhancement of sentence can be ordered in an appeal against conviction if the sentence already imposed is set aside on the ground of illegality - that it offends Sec.29 of the Code as in this case.
15. The learned counsel draws support for this argument from the fact that the first proviso stipulates that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. In short, the argument of the learned counsel is that notwithstanding the language of Sec.386(b)(iii) of the Code that the sentence cannot be enhanced in an appeal against Crl.R.P. No.428 of 2001 -: 14 :- conviction, in a situation like the instant one, the powers under Clause (e) are available and that read along with the first proviso to Sec.386 of the Code must clothe the appellate court with the power to order even enhancement of sentence in an appeal from conviction under Sec.386(b) of the Code, provided the mandate of the first proviso is satisfied.
16. We are unable to accept this contention. We have been taken through the legislative history behind Sec.386 of the Code which was introduced in 1973. We have been taken through the earlier Sec.423 of the 1898 Code. A specific provision for enhancement of sentence in an appeal against conviction was not there when such appeals were dealt with by Sessions Courts and the Sessions Courts were obliged to make reference in such cases to the High Court. Even though the Law Commission proposed certain amendments, those proposals were not fully accepted by the Parliament. A plain reading of Sec.386 of the Code reveals that in an appeal against acquittal, only the powers under Sec.386(a) are available to the appellate court. In an appeal against conviction, only the powers under Sec.386(b) of the Code are available to the appellate court. In an appeal for enhancement of sentence, only the powers under Clause (c) are available. In all other appeals only the powers Crl.R.P. No.428 of 2001 -: 15 :- under Clause (d) are available with the appellate court. When such appeals are pending before the High Court, the High Court can invoke the powers under Sec.401 Cr.P.C. and even enhance the sentence invoking its revisional powers, after satisfying the mandate of the first proviso. But it appears to us that the substantive appellate powers of an appellate court, in each category of appeals, are the ones conferred respectively under Sec.386 (a) to (d) of the Code only.
17. Clause (e) , according to us, does not confer powers on the criminal appellate court to be exercised in derogation of the powers specified under Clauses (a) to (d). That does not appear to be the legislative scheme at all. It is unnecessary for us to be detained any further on this aspect as we find that the Supreme Court in Commandant 20th Battalion, ITB Police v. Sanjay Binjola ((2001) 5 SCC 317) had considered this question and authentically concluded it. Dealing with the powers under Sec.386(e) of the Code, the Supreme Court observed thus:
"Incidental or consequential orders are such orders which are permissible under law and likely to follow as a result of the main order. The consequential or incidental orders contemplated under clause (e) of Section 386 of the Code are orders which follow as a matter of course Crl.R.P. No.428 of 2001 -: 16 :- being necessary complements to the main orders without which the latter would be incomplete and ineffective, such as issuance of directions for refund of fine realised from the accused ultimately acquitted or on the reversal of acquittal or any direction as to punishment, fine or compensation payable under Section 250 of the Code and the like"
To this reservoir of residuary powers we may add the power to modify directions issued under Sec.357(1) and Sec.357(3), the power to alter directions regarding disposal of property in any appeal or the directions as to the sentences running consecutively or concurrently.
18. It is now clear that Clause (e) does not confer any jurisdiction on criminal appellate court to pass orders not contemplated by Clauses (a) to (d). Clause (e) only clothes the criminal appellate court, after passing orders of the type contemplated under Clauses (a) to (d) to pass such consequential or incidental orders which would be just and proper. The residuary powers under Clause (e) are not to be invoked in derogation of the powers under Clauses (a) to (d). By any stretch of imagination it cannot be held that under Clause (e) an enhancement of sentence is permissible in an appeal against Crl.R.P. No.428 of 2001 -: 17 :- conviction contrary to the clear mandate of Sec.386(b)(iii) of the Code.
19. The learned counsel Mr.S. Rajeev submits that the first proviso which stipulates that the sentence shall not be enhanced would then be redundant. The learned counsel argues that the said proviso cannot have any application to the powers under Clauses (a) to (d) of Sec.386. The counsel argues that the proviso suggests that a power of enhancement of sentence is available under Clause (e). In short, the argument is that the proviso applies to Sec.386(1)(e) only. We are unable to agree. We agree with the learned counsel for the accused Shri. Philip that the proviso in the scheme of Sec.386 of the Code can apply only to Clause (c) of Sec.386 and not to Clauses (a), (b), (d) or
(e). In that view of the matter, we find the contention canvassed by Advocate Mr. S. Rajeev with the help of the decisions in Jayaram Vithoba v. State of Bombay (AIR 1956 SC 146) and Mani & Others v. State (1971 KLT 218) to be unacceptable. We take the view that an appellate court cannot, on its own, enhance the sentence by invoking the powers under Clause (e) read with the first proviso. We agree with Advocate S. Rajeev that even without the first proviso notice would have been given to the respondent/accused in an appeal under Sec.386(c). But Crl.R.P. No.428 of 2001 -: 18 :- that does not persuade us to alter the conclusion reached by us earlier.
20. We are now concerned with an appeal from conviction which is dealt with by Sec.386(b) of the Code. In an appeal from conviction three options appear to be available to the court. They are enumerated in Clauses (i)(ii) and (iii) of Sec.386(b) of the first Code.
21. Now we are concerned with the first option i.e., Clause
(i). That shows that in an appeal from a conviction the appellate court can "reverse the finding and sentence". Once that is done, three further options appear to be available to the appellate court and they are:
(a) acquit or discharge the accused;
(b) order him to be re-tried by a court of competent jurisdiction subordinate to the appellate court; or
(c) order him to be committed for trial.
These are the three options available after the appellate court comes to a conclusion that "finding and sentence" is liable to be reversed.
22. We shall immediately note that Clauses (ii) and (iii) of Sec.386(b) of the Code permits upholding of the sentence after altering the finding and the altering of the nature or the extent, Crl.R.P. No.428 of 2001 -: 19 :- or the nature and extent of the sentence with or without altering the finding. But there is an embargo that the sentence should not be enhanced to the prejudice of the appellant in an appeal against conviction preferred by the appellant.
23. Sec.386(b) of the Code has come up for consideration before the courts. In State of A.P. v. Thadi Narayana (AIR 1962 SC 240), the Supreme Court had considered this. Later two learned single Judges of this Court - Justice S. Padmanabhan in Poulose v. Food Inspector (1992 (1) KLT 522) and Justice M. Sasidharan Nambiar in Gopakumar v. State of Kerala (2009 (1) KLT 551) had occasion to consider Sec.386(b) of the Code. Our attention have been drawn to these decisions. We do not find those decisions directly relevant to our context. We find no scope for any dispute on the proposition of law adumbrated in those decisions. `The finding' referred to in Sec.386(b)(i) of the Code refers to the finding relating to the conviction impugned. When the accused challenges the conviction under a certain charge, it is not open to the appellate court to alter the finding regarding acquittal on any other charge and direct re-trial. That position has been made very clear in those decisions. By invoking the powers of re-trial available to the appellate court under Sec.386(b)(i) of the Code, an accused/ Crl.R.P. No.428 of 2001 -: 20 :- appellant cannot be deprived of the benefit of the unchallenged acquittal on certain counts rendered by the trial court in his favour. That position appears to be too well settled to warrant any further discussion.
24. Can the appellate court uphold the finding of guilt against the appellant and thereafter set aside the sentence and direct the accused to be re-tried only for imposition of an appropriate sentence? That is the question that squarely falls for our consideration. The argument advanced is that the expression: "finding and sentence" must be read conjunctively and not disjunctively. Therefore it is contended that where the finding regarding guilt impugned in an appeal is not disturbed and is upheld, the jurisdiction to direct re-trial cannot be invoked merely for the purpose of imposing an appropriate sentence. The expression "finding and sentence" in Sec.386(b)(i) of the Code cannot be bisected and cannot be read as "the finding and/or sentence". If the finding regarding conviction is not disturbed in an appeal, the jurisdiction to order re-trial for imposition of an appropriate sentence is not available to the appellate court. This, in short, is the first contention.
25. The learned counsel for the accused places reliance on, at least, seven decisions of other High Courts on this aspect. Crl.R.P. No.428 of 2001 -: 21 :-
(1) P. Mazher v. State of A.P. (2003 Cri.L.J. 3269) (Andra Pradesh).
(2) Roja Kamalam v. State [AIR 1971 Madras 41] (3) State v. Pulish Ghosh [1973 Cri.L.J. 510] (Calcutta) (4) Mukand Lal v. State [1979 Cri.L.J. 105] (Delhi) (5) Suresh v. State (1995 Cri.L.J. 3741) (Delhi) (6) Md. Bashir Ahmad v. The State [1961 (1) Crl.L.J 834](Patna) (7) G.Sankar v. A.B.Varadarajan [2007(3) Crimes 590] (Madras).
26. These decisions, we note, have accepted the proposition that an appellate court cannot direct re-trial of the accused for the purpose merely of imposing an appropriate sentence when it chooses to uphold the finding of guilt and conviction. The learned counsel for the accused Shri. Philip submits that the observations of the Supreme Court in para-7 of the decision in State of A.P. v. Thadi Narayana (AIR 1962 SC 240) support the conclusions of the Delhi, Andhra Pradesh, Calcutta, Patna and Madras High Courts. We extract those observations in para-7 below:
"7. Section 423 (1) (b) (1) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or Crl.R.P. No.428 of 2001 -: 22 :- discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial. In the context it is obvious that "the finding" must mean the finding of guilt. The words "the finding and sentence" are co-related. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence. There is no difficulty in holding that S.423 (1) (b) (1) postulates the presence of an order of sentence against the accused and it is in that context that it empowers the Appellate Court to reverse the finding of guilt and sentence and then to pass any one of the appropriate orders therein specified. In our opinion S.423 (1)
(b) (1) is, therefore, clearly confined to cases of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore conditioned by the said consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a Crl.R.P. No.428 of 2001 -: 23 :- party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.
There can thus be no doubt that the order passed by Mr.Justice Naidu cannot be justified under this clause."
(emphasis supplied)
27. We are unable to see anything in the observations in para-7 of the Thadi Narayana (supra) to support the said conclusion of the other High Courts. Para-7 of Thadi Narayana (supra) was dealing only with the question as to the meaning that must be assigned to the expression "the finding" in Sec.386(b)(1) of the Code and it has been held that it must mean the finding of guilt which is impugned. We have already dealt with that proposition earlier. We are unable to find any observation in para-7 of the Thadi Narayana (supra) to support the contention that the appellate court has no power after upholding the finding on conviction to direct re-trial for the purpose of imposing an appropriate sentence alone.
28. The learned counsel for the accused Shri. Philip has placed reliance on the decision of the Supreme Court in Kumar Exports v. Sharma Carpets ((2009) 2 SCC 513) to contend Crl.R.P. No.428 of 2001 -: 24 :- that the Supreme Court has disapproved the course adopted by the High Courts of sending matters back to the court below merely for the purpose of imposing sentence. Reliance is placed on paragraph-26 of Kumar Exports (supra). We are unable to agree that the decision in Kumar Exports (supra) can in any way help us in the given situation. Kumar Exports (supra) was dealing with a case under Sec.386(a) of the Code - that is an appeal against acquittal. The appellate court while exercising its powers under Sec.386(a) of the Code is competent to exercise all the powers of the trial court and there is no question of the court finding itself unable jurisdictionally to impose an appropriate and just sentence. The decision in Kumar Exports (supra) cannot therefore help us in the given situation. Of course, we agree with the learned counsel for the accused that a remand cannot and need not ordinarily be ordered by any court. Unless there are compelling reasons justifying remand, no court should resort to such a course. Such a course of unnecessary remand has been frowned upon by superior courts at all times. Kumar Exports (supra) is authority only for the proposition that an unnecessary remand should not be made. The Supreme Court did not have in its contemplation a situation like the one in this case where the appellate court finds itself Crl.R.P. No.428 of 2001 -: 25 :- fettered to impose an appropriate and just sentence while setting aside the sentence already imposed. In this view of the matter, we hold that the dictum in Kumar Exports (supra) cannot be held to be decisive in this case.
29. We have considered the matter in depth. We are unable to agree with the conclusion of the Andhra Pradesh, Delhi, Calcutta, Patna and Madras High Courts on that aspect. We find no binding precedents specifically on this point by the Supreme Court or larger Benches of this Court. No Division Bench or Single Bench of this Court has so far considered this question. We feel obliged to undertake an analysis of the statutory provision from various angles.
30. Under Sec.386(b)(i) of the Code a re-trial is perfectly permissible. What does the expression "re-trial" mean? Does it contemplate a `de novo' trial invariably? Doubts to this effect were raised at a certain point of time; but they are all laid to rest by a lucid judgment of the Division Bench of this Court in Lakshmanan Sundaram v. State of Kerala (1990 Cri.L.J. 1800). In that case ,the Division Bench has laid down beyond the pale of controversy that a direction for re-trial does not necessarily mean a de novo trial and that a direction for re-trial can be issued to continue the trial from any specified point in Crl.R.P. No.428 of 2001 -: 26 :- the course of trial. The decision in Lakshmanan Sundaram (supra) concludes the issue and removes the last trace of doubt, if any, on this aspect.
31. A doubt was expressed as to whether the proceedings post conviction till sentence is imposed will also be part of the trial. The trial ends with the verdict of guilty/not guilty and does not go beyond such verdict of guilty/not guilty, it is argued. In this view of the matter, an argument is advanced that there cannot be a direction for re-trial after the verdict of guilty/not guilty is upheld. According to us, it is too late in the day to advance such a contention. In James v. State of Kerala (1989 (1) KLT 275), a learned single Judge of this Court - Hon'ble Mr. Justice S. Padmanabhan, has considered the matter in detail and has come to the conclusion that a trial ends only when the sentence is pronounced and not earlier. From principle and precedent that position appears to be well covered and settled. A later Division Bench of this Court also had occasion to consider whether the trial would end with the pronouncement of guilt/innocence and whether the trial can be held to continue even thereafter till the sentence was pronounced. That Bench in S.V. Enterprises v. Rajasekharan Nair (2006 (3) KLT 930) has laid down beyond the trace of controversy that the trial Crl.R.P. No.428 of 2001 -: 27 :- would stand terminated only on pronouncing judgment either acquitting the accused or awarding the sentence after conviction. That sentence also forms part of the judgment and all proceedings till the pronouncement of judgment would be trial is thus held beyond the trace of doubt in S.V. Enterprises (supra). We are hence satisfied that a remand for re-trial for imposing a just and appropriate punishment is possible.
32. We shall now proceed to consider the inevitable complications which may arise if we were to take the view that the expression "reverse the finding and sentence" cannot be understood as "reverse the finding and/or sentence". It is trite, going by the dictionary, the legal dictionary, and the precedents that the word "and" in an appropriate context can carry the meaning "and/or". If precedents be necessary on this aspect, we can advantageously refer to the following decisions in:
(1) S. Krishnan & Others v. The State of Madras and Another (AIR 1951 SC 301) (2) Food Inspector, Trichur Municipality v. Paul (1964 KLT 721.
(3) Ishwar Singh Bindra & Others v. State of U.P. (AIR 1968 SC 1450) (4) Municipal Corporation of Delhi v. Tek Chand Bhatia ((1980) 1 SCC 158) (5) Fakir Mohd. V. Sita Ram ((2002) 1 SCC 741) Crl.R.P. No.428 of 2001 -: 28 :- We also note that:
"In Stroud's Judicial Dictionary, 3rd Edition, Vol.I, it is stated at p.135: "And"
has generally a cumulative sense,
requiring the fulfilment of all the
conditions that it joins together, and herein it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a context, read as "or". While dealing with the topic "OR is read as AND, and vice versa", Stroud says in Vol.3, at p.2009: You will find it said in some cases that 'or' means 'and'. Similarly, in Maxwel on Interpretation of Statutes, 11th Edition, pp. 229-30, it has been accepted that "to carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions "or" and "and" one for the other". The word "or" is normally disjunctive and "and" is normally conjunctive, but at times they are read as vice-versa".
(See page 62 of S.C. on Words and Phrases).
33. We shall now consider the results which may follow if we do not read the expression purposively in that manner. It is our considered view that the expression "and" between the Crl.R.P. No.428 of 2001 -: 29 :- words "finding and sentence" in Sec.386(b)(i) has to be read as "and/or".
34. We do first of all refer to the two decisions of the Supreme Court in Santa Singh v. State of Punjab (AIR 1976 SC 2386) and Narpal Singh v. State of Haryana (AIR 1977 SC 1066). Those are the decisions where the Supreme Court, after upholding the finding of guilt, remanded the matter to the trial court solely for the purpose of imposing an appropriate sentence. Both were cases where the trial court (Sessions Courts) without complying with the mandate of hearing the accused under Sec.235 of the Code, proceeded to impose death sentence on the indictees. The Supreme Court clearly held that if such opportunity for hearing were not given to the accused, the trial/imposition of sentence will be illegal and improper. The Supreme Court therefore after upholding the conviction, sent the matter back to the trial court for imposition of sentence in accordance with law after complying with Sec.235 of the Code. We reckon these as authority for the proposition that it is not anathema to law to uphold the conviction and send the matter back to the court below for imposition of an appropriate sentence. It is true that the powers under Sec.386 were not considered specifically in these decisions. Crl.R.P. No.428 of 2001 -: 30 :-
35. In the latter decision in Narpal Singh (supra) the Supreme Court went further and considered the consequence and effect of such an order of remand. We find lucid discussions on this aspect in paragraph-30 of the judgment. A contention was raised that such a remand would oblige the subordinate court to re-consider the question of guilt/conviction itself again in the light of the earlier decision in Payare Lal v. State of Punjab (AIR 1962 SC 690). Repelling that contention the Supreme Court held that the remand for imposition of sentence, after upholding the conviction, is permissible and in the wake of such an order of remand the question of conviction cannot and need not be re-opened at all before the trial court. The decisions in Santa Singh and Narpal Singh (supra) are, according to us, clear authority for the proposition that the remand of the case to the trial court after upholding the conviction to impose appropriate and just sentence by setting aside the sentence is perfectly justified and permitted by law.
36. The learned counsel for the accused Shri. Philip points out that at least in two later decisions of the Supreme Court, the Supreme Court has taken the view that it is not necessary to remand such cases for compliance of Sec.235 and such compliance can be made before the appellate court itself. The Crl.R.P. No.428 of 2001 -: 31 :- decisions in Dagdu v. State of Maharashtra (AIR 1977 SC 1579) and Tarlok Singh v. State of Punjab (AIR 1977 SC 1747) are relied on by the learned counsel for the accused. We have gone through these decisions. These decisions do not say that the course adopted in Santa Singh and Narpal Singh (supra) is not permissible or justifiable. They are only authority for the proposition that it is not invariably necessary in every case to order remand for the purpose of compliance of Sec.235 of the Code and in an appropriate case even without remand, the appellate court can ensure compliance with Sec.235 of the Code. We are of the opinion that the decision Dagdu and Tarlok Singh (supra) do not in any way militate against the proposition in Santa Singh and Narpal Singh (supra) that in an appropriate case remand for the purpose of imposing appropriate sentence after upholding the conviction is permissible.
37. The learned counsel for the accused submits that all those decisions are rendered by the Supreme Court while exercising its powers under Art.136 of the Constitution and not while considering the powers under Sec.386 of the Code. We do note that distinction. But what we intend to note is only that the course of upholding the conviction and setting aside the Crl.R.P. No.428 of 2001 -: 32 :- sentence and remand for re-trial for the purpose of imposition of a sentence is not anathema to law. To achieve the ends of justice such an order can be passed, it is clear.
38. The learned counsel for the accused submits that in all those four cases the question was only whether the sentence deserves to be reduced. The learned counsel argues that such powers were invoked by the Supreme Court only to consider whether the sentence deserves to be reduced. The learned counsel argues that in the instant case the powers under Sec.386
(b) of the Code are sought to be invoked not to consider the imposition of a lesser sentence but to decide whether an appropriate higher sentence ought to be imposed or not. We are primarily concerned with the question whether the expression "finding and sentence" can be read as "finding and/or sentence". What exactly was the purpose for which remand was made in the specific cases is not directly relevant while attempting to spell out the scope and ambit of the expression. Move over, we must note that the case on hand is one where the sentence is directly challenged and the court finds itself fettered by the procedural stipulations to impose a sentence which the trial court is competent to impose because of the embargo under Sec.386(b)
(iii) of the Code. It is in such a case alone that the expansive understanding of the expression "finding and Crl.R.P. No.428 of 2001 -: 33 :- sentence" will be called for.
39. If we take the view that the expression "the finding and sentence" will have to be read conjunctively always and not disjunctively ever in any situation, in cases like the ones dealt with by the Supreme Court in Santa Singh and Narpal Singh (supra), an appellate court will not be able to remand the case for re-trial for the purpose of imposing an appropriate sentence. Even in a case where the court feels that the appellate court cannot comply with the mandate of Sec.235 effectively, the court will be helpless and will not be able to resort to the course that the Supreme Court resorted to in Santa Singh and Narpal Singh (supra). In that view of the matter the restricted understanding of Sec.386(b) of the Code - to insist that the conviction and sentence must both be set aside before the power to remand is resorted to is likely to lead to unreasonable results.
40. We have considered the possibility of other situations also. It is perfectly possible to contemplate a penal provision in a statute which prescribes only a substantive sentence of imprisonment and no fine at all. In fact, Sec.119(2) and 345 IPC are instances where the law prescribes only a substantive sentence of imprisonment but no fine. If in such a prosecution where only substantive sentence of imprisonment is permissible, Crl.R.P. No.428 of 2001 -: 34 :- the trial court imposes erroneously a sentence of fine alone and the accused challenges such conviction and sentence, the court is likely to find itself in a precarious situation. It may take the view that the conviction is justified. The challenge of the accused that the sentence is illegal and not justified by the penal provision would be correct. The trial court having chosen to impose a sentence of fine, the appellate court would not be able to enhance the sentence and impose any substantive sentence of imprisonment. In that situation, the only course open to the appellate court would be to uphold the conviction, set aside the sentence which is illegal and allow the accused to go scot-free . That cannot obviously be the law, according to us. To avoid such precarious and absurd situation also, it is essential and necessary that a purposive expanded meaning must be assigned to the expression "finding and sentence" in Sec.386(b)(i) of the Code.
41. The only other way to save the interests of justice in such a situation would be to follow the course adopted by the Madras High Court in Roja Kamalam v. State (AIR 1971 Madras 41) and G. Sankar v. A.B. Varadarajan (2007 (3) Crimes 590) - of unnecessarily setting aside the finding regarding conviction also. In those cases the Judges finding Crl.R.P. No.428 of 2001 -: 35 :- themselves powerless under Sec.386(b) chose to set aside the conviction also to serve the ends of justice. To us, it appears that it would be a totally unnecessary and unjustified course causing unnecessary trauma, misery and protraction. We are of the opinion that such an unnecessary setting aside of the order of conviction merely to facilitate a remand to impose a just sentence would be totally unjustified. Such a course can be avoided giving a purposive interpretation to the expression "the finding and sentence".
42. We note that in identical situations, the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) and the Madhya Pradesh High Court in Nathuram Sharraa v. Rajendra Goyal (2007 MPHT 4-114) have taken the view that it will be perfectly permissible to direct remand of the case to the court below to continue the trial from the stage of conviction and impose an appropriate and just sentence. Though we find that detailed discussions on the play of Sec.386
(b)(i) is not there, the course adopted by the courts in those cases justify the conclusions which we propose to reach.
43. The learned counsel for the accused contends that such a remand under Sec.386(b)(i) of the Code would be impermissible as the appellate court would then virtually be Crl.R.P. No.428 of 2001 -: 36 :- doing what it is prohibited from doing under Sec.386(b)(iii) of the Code. Under Sec.386(b)(iii) in an appeal against conviction by the appellant, the sentence imposed on him cannot be enhanced. If the appellate court cannot itself enhance the sentence it would be unjust to resort to the powers under Sec.386(b)(i) of the Code to facilitate such enhancement by the trial court. This would cause prejudice to the accused and is against all canons of beneficial construction of a penal statute. A construction favourable to the accused must be adopted, argues the learned counsel.
44. We are unable to agree. At the first instance, this is not a case where enhancement of sentence is sought to be achieved by the appellate court. It is the accused who challenges the sentence. If he does not challenge the sentence, the court would have left it there and would not have enhanced it. But the accused wants to rely upon the technically that Sec.29 of the Code places a cap on the amount of fine that can be imposed. The impugned fine imposed is in excess of Rs.5,000/- and hence illegal, contends the learned counsel. It is in the wake of that contention that the appellate court has to look at the alternatives. The appellate court finds that it cannot do justice in any manner. We have already held that imposition Crl.R.P. No.428 of 2001 -: 37 :- of fine of Rs.5,000/- for an offence under Sec.138 of the N.I. Act in respect of a cheque for Rs.1.37 lakhs would be perverse and grossly inadequate and unjust. It is only because the appellate court is obliged to interfere with the sentence passed by the trial court and finds itself fettered by the procedural stipulations to impose an appropriate sentence that the power to direct re-trial under Sec.386(b)(i) is sought to be invoked. This is clearly not a case of the appellate court attempting to enhance the sentence. Consequent to the setting aside of the impugned sentence, the appellate court is looking at alternatives permissible. In view of the bar under Sec.386(b)(iii) of the Code, substantive sentence of imprisonment - even one of imprisonment till rising of court cannot be imposed. Consequently, Sec.357(3) of the Code cannot be invoked. The residuary powers under Sec.386(e) of the Code to amend and make consequential or incidental alterations cannot also be invoked. In such a situation, we are certainly of the opinion that resort to the option under Sec.386
(b)(i) of the Code to direct re-trial is available.
45. The mere possibility that a superior court does not have the power to achieve result directly cannot be a fetter on its power of remand to ensure justice. This is evident from the provision of Sec.401(3) of the Code. The powers of revision - Crl.R.P. No.428 of 2001 -: 38 :- Sec.401(3) mandates, cannot be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. But that does not affect the power of the revisional court - the High Court or the Court of Session, to set aside a judgment of acquittal and direct fresh disposal by the subordinate court. Such subordinate court may after remand enter a finding of guilt and convict the indictee. Such course is certainly not available to the revisional court in view of Sec.401(3) of the Code. But that does not fetter the power of the revisional court to remand the matter to the court below for fresh disposal or the power of such court to which the case is remanded to dispose of the matter afresh and enter a verdict of guilty and conviction. Following that analogy we are unable to accept the argument that by directing re-trial for imposing appropriate and just sentence the appellate court will be doing indirectly what it cannot do directly in the wake of Sec.386(b)(iii) of the Code.
46. To conclude the discussions on this aspect we enter the following findings:
(i) The expression "the finding and sentence" in Sec.386(b)
(i) of the Code really means and must be read as "the finding and/or sentence".
(ii) Wherever possible, alteration of the sentence must be Crl.R.P. No.428 of 2001 -: 39 :- performed by a court by resort to the provisions of Sec.386(b)(iii) of the Code. But where the court finds itself incapable of doing justice because of the procedural fetters it shall be open to the appellate court to uphold the verdict of guilty and direct re-trial from the stage of conviction of an accused.
(iii) The mere fact that after such remand the trial court may impose a sentence which is in excess of what the appellate court could have imposed if such sentence were to be imposed by the appellate court under Sec.386(b)(iii) of the Code is no reason to hold that such power to direct re-trial/remand is not available to the appellate court.
47. In this view of the matter, we hold that the appellate court in the instant case has grossly erred in simply imposing a sentence of Rs.5,000/- which amounts to gross failure/ miscarriage of justice. The appellate court must have invoked its powers under Sec.386(b)(i) of the Code and directed re-trial by the trial court from the stage of conviction.
48. Lest there be any misapprehension, we may hasten to observe that resort to the power to direct re-trial under Sec.386
(b)(1) of the Code to impose an appropriate sentence should not be invoked unless the court finds itself compelled to interfere with the sentence already imposed and finds itself Crl.R.P. No.428 of 2001 -: 40 :- jurisdictionally incompetent and powerless thereafter to impose an appropriate and just sentence. Where it is only a question of mere inadequacy of sentence imposed by the trial court, interference with such sentence and a consequent direction for re-trial to impose a just sentence cannot be made by invoking the powers under Sec.386(b) of the Code. In such case it shall be open to the State to prefer an appeal under Sec.377 of the Code for an enhancement of sentence or the victim/aggrieved/ complainant to approach the revisional court with the grievance about the inadequacy of sentence. In such cases merely for the purpose of enhancement of the sentence the power to direct re- trial under Sec.386(b)(i) of the Code cannot be invoked. We take the view in the instant case that the matter could have been sent back for re-trial to impose a just sentence only because of and on the basis of the challenge by the accused that the sentence imposed is illegal under Sec.29 Cr.P.C. The appellate court in the wake of that plea finds itself obliged to set aside the sentence and further finds itself unable to impose an appropriate sentence.
49. Needless to say, after such remand the accused will have to be heard on the question of sentence. It is true that in a summons trial/summary trial there is no separate provision for Crl.R.P. No.428 of 2001 -: 41 :- hearing of an accused. It is well settled that all interstitial spaces in a statute must be filled up by the principles of natural justice. The obligation of the court to hear the accused on the question of sentence is founded on the principles of natural justice and needless to say the accused has to be heard on the question of sentence before the trial court passes fresh sentence in accordance with law. Point Nos.(i) and (ii) are thus answered against the accused and in favour of the revision petitioner.
50. Point Nos.(iii) & (iv): The revisional jurisdiction is the jurisdiction of correction and superintendence. Wherever injustice/impropriety results from the procedure adopted by the subordinate courts, the revisional court can intervene to invoke its revisional powers and to ensure that justice is done. In fact, the revisional powers of supervision and correction are available to the superior courts i.e., the Court of Session and the High Court to be invoked in the interests of justice. Even an application by the party is not necessary to justify invocation of the revisional jurisdiction. By filing revision petition the party is only bringing to the notice of the court the need to invoke its revisional jurisdiction of superintendence and correction. Of course, we have the provisions of Sec.401(4) of the Code which mandates that the powers of revision shall not be invoked at the Crl.R.P. No.428 of 2001 -: 42 :- instance of a person who has a right of appeal and who has not invoked such right of appeal. That stipulation notwithstanding, the revisional powers are the powers vested in superior courts to ensure that proceedings before the courts below do not result in injustice or failure or miscarriage of justice. In that view of the matter, we are of the opinion that the revisional jurisdiction must be understood and interpreted in the widest possible manner to ensure that injustice is avoided and justice prevails.
51. If the appellate court, in the circumstances of the case, found itself unable to impose an appropriate sentence we would never expect such a court to remain idle by complying with the letter of the law under Sec.29 of the Code. Even assuming that the appellate power does not permit the court to direct re-trial for imposition of an appropriate sentence we would certainly have expected a responsible Sessions (Appellate) Judge with commitment to the cause of justice to write to the High Court to inform the High Court of his helpless position because of the procedural fetters and his inability to do justice. A Sessions Court in view of the distinction between the revisional powers available to a Sessions Court under Sec.399(1) and the High Court under Sec.401(1) as explained in John Samuel v. State of Kerala (1985 KLT 902) and State v. Baby (1981 KLT 27) Crl.R.P. No.428 of 2001 -: 43 :- faces fetters. No judicial functionary should have persuaded himself to adopt a heartless course by mechanically reducing the sentence of fine to Rs.5,000/-, the maximum permitted under Sec.29 of the Code. In such a case we would expect the subordinate judicial functionaries with a sense of commitment to justice to write to the High Court through proper channel impressing upon the High Court the need to invoke its revisional powers to prevent failure of justice. Our dissatisfaction/grievance against the appellate court is that the appellate court did not follow such course. The appellate court in addition to the power to remand which it has, as we have already found under Sec.386(b)(i) of the Code, could certainly have addressed the High Court to invoke the revisional jurisdiction which it is unable to invoke in the light of the John Samuel and Baby (supra). That is also not done by the court below and that has resulted in miscarriage of justice.
52. The learned counsel for the accused in this context points out the decision in Vijayakumar v. State (2009 (2) KLT
499). The learned counsel Shri. Philip does not contend that the revisional power cannot be invoked. The learned counsel only contends that this is not a fit case where the High Court should invoke its revisional jurisdiction. According to the learned Crl.R.P. No.428 of 2001 -: 44 :- counsel, inasmuch as the complainant had not preferred a revision petition against the illegal sentence imposed by the trial court, the revisional jurisdiction of the High Court cannot and need be invoked to his advantage at this stage.
53. We are unable to accept this argument. The complainant was satisfied with the judgment of the trial court, though technically incorrect. In that situation if the complainant did not prefer a revision against the order with which he was satisfied though technically incorrect his right to move the High Court when the impugned order passed by the appellate court works out injustice against him cannot be questioned at all. We are, in these circumstances, of the opinion that this is an eminently fit case where the revisional jurisdiction vested in this Court under Sec.401(1) of the Code can and ought to be invoked.
54. The learned counsel points out that in the light of the observations in paragraphs-12, 14 and 15 in Vijayakumar (supra), this Court in revision cannot exercise any power which the appellate court under Sec.386(b) of the Code does not have. It is in the light of this contention that we have to consider whether the law laid down in Vijayakumar (supra), is correct. We are of the opinion that the learned single Judge did not Crl.R.P. No.428 of 2001 -: 45 :- realistically comprehend the width and amplitude of the jurisdiction of the revisional court. The jurisdiction in revision does not end with the mere correction of technical errors by subordinate courts. The commitment of the revisional court must also be to the ends of justice. The judgment of the trial court, though technically not correct, did not result in injustice to the complainant. But the appellate modification of the said judgment resulted in injustice to the complainant. The revisional court cannot abdicate its jurisdiction to do justice by merely holding that the appellate court has not committed any technical error and has complied with the letter of the law. We have already taken the view that the appellate court has power of remand and in not doing that the appellate court has committed an error which warrants correction in revision. But even that apart, we must disagree with the conclusion in Vijayakumar (supra) to the extent that it holds that the powers of the revisional court extend merely to correction of errors of the appellate court even when the trial court judgment read along with the appellate court judgment results in injustice against one of the contestants. We are unable to agree with the conclusion in Vijayakuamr (supra) by the learned single Judge to that extent. To that extent, we overrule the dictum laid down Crl.R.P. No.428 of 2001 -: 46 :- in Vijayakuamr (supra). We take the view that where impropriety/injustice has resulted the revisional court cannot consider itself to be powerless. It must intervene to reverse the injustice. Question Nos.(iii) and (iv) are answered thus.
55. Finally a question arises as to what should be the appropriate sentence to be imposed in the facts and circumstances of this case. The verdict of guilty and conviction have become final. No attempt is made before us to challenge the said verdict of guilty and conviction. The cheque is for an amount of Rs.1.37 lakhs. The cheque bore the date 6/10/1995. A period of about 15 years has elapsed from the date of the cheque. No amount has admittedly been paid also. To each what he deserves is the `manthra' of justice. The complainant has to be adequately compensated. He has been compelled to wait from 1995 and fight three rounds of legal battle by now for the redressal of his grievances. He deserves to be compensated satisfactorily.
56. We are satisfied that a deterrent substantive sentence of imprisonment has no relevance in a prosecution under Sec.138 of the N.I. Act particularly during the initial period of enforcement of the statute. We are, in these circumstances, of the opinion that a deterrent substantive sentence of Crl.R.P. No.428 of 2001 -: 47 :- imprisonment need not be imposed. A lenient substantive sentence of imprisonment alone need be imposed; but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant. Imposition of a lenient substantive sentence of imprisonment till rising of court coupled with an appropriate direction to pay compensation under Sec.357(3) of the Code along with default sentence, we are satisfied, shall eminently meet the ends of justice.
57. In the result:
(a) This revision petition is allowed.
(b) The impugned judgments of the trial court and the appellate court in so far as they relate to the sentence imposed on the accused are set aside.
(c) In supersession of the sentence imposed by the courts below on the accused, the accused/respondent herein is sentenced under Sec.138 of the N.I. Act to undergo imprisonment till rising of court and to pay an amount of Rs.1,75,000/- (Rupees one lakh and seventy five thousand only) as compensation and in default, to undergo simple imprisonment for a period of three months.
(d) The compensation amount shall be paid/deposited within a period of three months. Modified sentence hereby Crl.R.P. No.428 of 2001 -: 48 :- imposed shall not be executed till 10/6/10. The accused shall appear before the trial court on 11/6/10 to undergo the modified sentence hereby imposed. If the accused does not pay the amount and/or does not appear before the court on that date, appropriate steps for execution of the impugned sentence shall be taken by the trial court thereafter.
Sd/-
R. BASANT (Judge) Sd/-
M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge