Andhra HC (Pre-Telangana)
P. Mazher vs State Of A.P. And Anr. on 12 March, 2003
Equivalent citations: 2003(2)ALD(CRI)258, 2003(2)ALT(CRI)362, III(2003)BC491, 2003CRILJ3269
ORDER Dubagunta Subrahmanyam, J.
1. This revision is filed against the judgment dated 6.12.2000 in Criminal Appeal No. 68 of 1999 on the file or Metropolitan Sessions Judge, Hyderabad.
2. The second respondent herein filed a private complaint in CC No. 106 of 1997 on the file of II Metropolitan Magistrate, Hyderabad, for the offence punishable under Section 138, Negotiable Instruments Act. The accused is said to have issued a cheque dated 1.1.1997 for a sum of Rs. 1,24,033/-. After trial, by his judgment dated 25.2.1999, the learned Magistrate held that the prosecution proved the guilt of the accused for the offence punishable under Section 138, Negotiable Instruments Act. After convicting him for the said offence, the learned Magistrate sentenced the accused to pay a fine of Rs. 1,70,000/-, out of which a sum of Rs. 1,50,000/- shall be paid to the complainant towards compensation under Section 357, Cr.P.C., and the balance amount shall be credited to the Government towards fine and in default the accused shall undergo simple imprisonment for one year. Therefore, as per the said judgment of the learned Magistrate, he imposed a fine of Rs. 20,000/- for the offence punishable under Section 138, Negotiable Instruments Act. Aggrieved by the conviction and sentence imposed on him, the accused preferred an appeal in Criminal Appeal No. 68 of 1999 before the Metropolitan Sessions Judge, Hyderabad. The learned Metropolitan Sessions Judge after considering the material available on record upheld the conviction given by the learned Magistrate against the accused for the offence under Section 138, Negotiable Instruments Act. Regarding the sentence, the learned Metropolitan Sessions Judge held that the Supreme Court held that the Magistrate has no power to impose fine over and above Rs. 5,000/- and, therefore, the sentence is not proper and hence the same is liable to be set aside. He allowed the appeal in part confirming the conviction and setting aside the sentence. He remanded the case to the lower Court to impose sentence according to law. Aggrieved by the said judgment of the learned Metropolitan Sessions Judge, the accused preferred the present revision.
3. Section 386, Cr.P.C., deals with powers of the Appellate Court. As the appeal was filed before the learned Metropolitan Sessions Judge from a conviction, the relevant provision is Section 386(b), Cr.P.C. It reads as follows :
"386(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."
A reading of the above provision makes it clear that the Appellate Judge has got the option to reverse the finding and sentence and acquit the accused of the offence of which he was charged. The Appellate Court is also at liberty to order retrial of the accused by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial. The Appellate Court is also at liberty to alter the finding and maintain the sentence imposed by the Trial Court. It has also got the option with or without altering the finding, alter the nature and extent of the sentence. However, it has no power to enhance the sentence given by the Trial Court. Section 386(b), Cr.P.C., does not entitle the Appellate Judge in an appeal from conviction to confirm the conviction and at the same time remit back the case to the Trial Court for consideration regarding the sentence alone. In my considered opinion the learned Metropolitan Sessions Judge has committed an error in remitting the case to the Trial Court regarding the sentence alone after confirming the conviction imposed by the Trial Court.
4. I have come across some reported decisions to support the view taken by me regarding the powers of the Appellate Court while dealing with an appeal from conviction given by the Trial Court. The Madras High Court in a decision in Roja Kamalam v. State, , held that the Appellate Court cannot remand the case for passing proper sentence and before ordering retrial, the conviction and sentence must be set aside. In that case the Trial Court convicted the accused for the offence under Section 380 I.P.C., and sentenced him to suffer rigorous imprisonment for three months. In the appeal, the Sub-Divisional Magistrate confirmed the conviction and remanded the case to the Sub-Magistrate observing that the matter should be dealt with under the provisions of Probation of Offenders Act, if the age was found to be 20. The Madras High Court held categorically that there can be no remand of a case for the purpose of passing a proper sentence.
5. There is a judgment of Calcutta High Court in State v. Pulish Ghosh, 1973 Crl.L.J. 510. In a food adulteration case, acting on the plea of guilty made by the accused, the Magistrate convicted the accused and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Rs. 10,000/-. Accused preferred an appeal before the Sessions Judge. The Sessions Judge upheld the conviction and set aside the sentence and sent back the record to the Magistrate for imposing sentence after examination of the accused under Section 342, Cr.P.C. (Old). Thereafter the learned Magistrate imposed a sentence of rigorous imprisonment for five months and a fine of Rs. 900/-. Again the accused preferred an appeal before the Sessions Court. The second appeal came up before another learned Sessions Judge other than the Sessions Judge who remitted earlier case to the Magistrate. The later Sessions Judge made a reference under Section 438, Cr.P.C. (Old) to the High Court. The High Court held that the previous Sessions Judge made a peculiar order, he upheld the conviction, he set aside the sentence and send the record to the Magistrate for imposition of sentence after examining the accused under Section 342 of the Code. The High Court held that if the Sessions Judge though that the sentence should be reduced, he could himself reduced the sentence. It held that the order that he made could not have been made under the powers which he as the Appellate Court had under Section 423 of the Old Code. It also observed that he should have realised that since he was maintaining the conviction, there was no further scope for the learned Magistrate to examine the accused under Section 342, Cr.P.C. The High Court set aside the order of the Sessions Judge.
6. There is also a similar judgment of Delhi High Court reported in Mukand Lal v. State, 1979 Crl.L.J. 105. It was held that the order of the Sessions Judge remanding the case to the lower Court to offer an opportunity of hearing on the question of sentence is irregular.
7. There is a judgment or the Apex Court reported in K. Bhaskaran v. Sankaran Vaidhyan Balan, IV(1999) CCR 63 (SC)=VIII (1999) SLT 147=1999 Crl.L.J. 4606. The principle of law relating to sentences to be imposed for the offence under Section 138, Negotiable Instruments Act read with Sections 29(2) and 357(3) of Cr.P.C., is laid down in the above decision. The Supreme Court held that a Judicial Magistrate of First Class could not impose a fine exceeding Rs. 5,000/- besides the imprisonment and the High Court while convicting the accused in an appeal in the same case could not impose a sentence or fine exceeding the said limit. It held that the Magistrate can alleviate the grievance in the complainant by making resort to Section 357(3) of the Code, no limit is mentioned and a Magistrate can award any sum as compensation. It held while fixing the quantum of such compensation, the Magistrate, has to consider what could be the reasonable amount of compensation payable to the complainant and thus even if the trial for cheque dishonour was before a Court of Magistrate of First Class in respect of a cheque which covers an amount exceeding Rs. 5,000/-, the Court has power to award compensation to be paid to the complainant.
8. In the present case, the order of the learned Metropolitan Sessions Judge confirming the conviction and at the same time setting aside the sentence and remitting back the case to the Magistrate for sentence alone is bad in law and it is liable to be set aside. Therefore, the appeal in Criminal Appeal No. 68 of 1999 is to be remitted back to the learned Metropolitan Sessions Judge for fresh disposal in accordance with law. The confirmation of the conviction made by the learned Metropolitan Sessions Judge as well as the order remitting back the case to the Magistrate regarding the sentence are set aside. The learned Metropolitan Sessions Judge is directed to consider the appeal afresh on merits notwithstanding any of the observations made by the said Court in the appeal.
9. In the result, the appeal is allowed. The entire judgment dated 6.12.2000 in Criminal Appeal No. 68 of 1999 is set aside. The appeal is remitted back to the Metropolitan Sessions Judge, Hyderabad, with a direction to dispose of the entire appeal on merits after hearing both the parties.