- (1.)Concurrent findings on facts recorded by the Courts below (Judicial First Class Magistrate - 1, Kozhikode in C.C. 838/93 and the learned Addl. Sessions Judge - II, Kozhikode Division in Crl.A. 59/1996) on proper appreciation of evidence are sought to be assailed by filing this revision by the convicted accused. Learned counsel for the revision petitioner submitted fairly before me that in view of the settled position of law that this Court is loath to interfere with the concurrent findings on facts recorded by the Courts below on proper appreciation of evidence unless glaring feature which would otherwise tantamount to gross miscarriage of justice is brought to this Courts notice the revision petitioner is not challenging the findings based on trustworthy and cogent evidence led in support of his case by the complainant - 1st respondent.
(2.)The Trial Court on proper appreciation of evidence convicted the revision petitioner for the offence punishable under S.138 of the Negotiable Instruments Act, 1881 as amended (for short, the Act) and on appeal the appellate Court affirmed the conviction. Trial Magistrate, on conviction, ordered the revision petitioner to undergo imprisonment for six months and the learned Sessions Judge interfering with the sentence awarded altered the sentence to fine of Rs. 30,000/- with a default clause. Learned counsel submitted that illegality or irregularity has been committed by the learned Addl. Sessions Judge and he contended that while altering the sentence of imprisonment awarded by the trial Magistrate into one of fine of Rs. 30,000/-, Sessions Judge imposed a punishment higher than the maximum punishment that could have been imposed by the Trial Court. Counsel argued vehemently that the revision petitioner was tried by the Judicial First Class Magistrate - I, Kozhikode, who could not impose a fine exceeding Rs. 5,000/-, and therefore the learned Sessions Judge could not have imposed on the revision petitioner fine exceeding Rs. 5000/-. Counsel submitted that by imposing a fine of Rs. 30,000/- the learned Sessions Judge imposed a punishment higher than the maximum punishment (fine) that could have been imposed by the Trial Court.
(3.)There appears to be considerable force in the above contention urged vigorously before me. It is settled position of law that appellate court is not competent to impose a punishment higher than the maximum that could have been imposed by the Trial Court. An appeal court is a court of error, that is, a court established for correcting an error. If the court were to do something which is beyond the competence of the trying court, it could not be said to be correcting an error of the trying court. The power of appellate court to pass a sentence must be measured by the power of the Court from whose judgment an appeal has been brought before it. (See Jagat Bahadur v. State of M.P. ( AIR 1966 SC 945 ).