- (1.)THE disputed point in both the cases being similar, both the cases are being disposed of by this common order. In these cases, both the petitioners have been convicted by the Trial Court for the offence punishable under Section 138 of negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act')imposing only fine sentence along with compensation under Section 357 (3) of cr. PC. Both the petitioners preferred criminal appeals. Criminal Appeal no. 19/07 filed by petitioner Nathuram Sharma has been disposed of vide judgment dated 23rd May, 2007 and Criminal Appeal No. 125/07 filed by petitioner Rajesh Bansal has been disposed of vide judgment dated 6th June, 2007 passed by Sessions Judge, Gwalior. In both the appeals, the learned Judge, while highlighting the observation taken in the case of Sanjeev Vs. Triveni Credit corporation, 2006 (4) Crimes 475, that in such cases fine sentence and compensation under Section 357 (3) of Cr. PC both cannot be imposed at a time, has observed that if the fine sentence is removed, there remains no sentence for the offence under which the petitioners have been convicted. The learned Judge has remanded the case back to the Trial Court with a direction to impose effective sentence. Feeling aggrieved with these judgments of the learned judge, both the revisions have been preferred by both the petitioners.
(2.)THE only contention of the petitioners is that under the appellate powers, the learned Judge was not empowered to remand the case with aforementioned direction. In support they have placed reliance on, 1. Harisingh vs. State of M. P. , 1992 (2) MPJR 24 and 2. kalloo Khan Vs. State of M. P. , 2000 (3)MPLJ 384. As per the facts of the case of Hari Singh (supra), in a case under section 394 of IPC, property of the complainant was not put up for identification. In an appeal against conviction, the Sessions Judge set-aside the conviction and remanded the case with direction to examine person conducting test identification parade. It was observed that by making such order the learned judge has not only given an opportunity to the prosecution to fill up the weak spot of the prosecution case but also put the case to the stage of investigation which was not open to the Judge while exercising his appellate powers under section 386 (b) of Cr. PC. In the case of Kallu Khan (supra), the Appellate Court enhanced the sentence passed by the Trial Court. In an appeal against the conviction filed by the accused, it is observed that under Section 386 (b) of cr. PC, no such enhancement can be ordered.
(3.)COUNTERING the contentions, the learned Counsel appearing on behalf of the respondents, while placing reliance on a judgment delivered by the supreme Court in Suganthi suresh Kumar Vs. Jagdeeshan, 2002 SCC (Cri.) 344, have submitted that flea-bite sentence under Section 138 of the Act is not justified. On perusal of this case, it appears that two cheques amounting to rs. 4,50,000/- were dishonoured. The Trial Court imposed imprisonment till rising of the Court and also payment of fine of Rs. 5000/ -. In revision, High Court observed that the sentence was inadequate, the Trial Magistrate, should have at least invoked Section 357 (3), Cr. PC. Despite this observation, High Court did not interfere in the sentence passed by the Trial Magistrate. Matter reached upto the Supreme Court. It is observed by the Apex Court that there was no case for the respondent that the amount involved in the two cases had been paid. If the amount had been paid there perhaps would have been justification for imposing a flea-bite sentence. In the last the Hon'ble Court accepting the proposal, remitted the case back in the Trial Court with a direction to hear both sides once again in the matter of sentence and pass a sentence which is condign. The sentence was set aside.