SAMUL PHILIPOSE Vs. KOSHY THOMAS

JUDGEMENT

(1.) These Criminal Revision Petitions and Criminal Revision Cases raise common question of law and fact and hence, are disposed of by a common order. The question involved is whether a Criminal Appeal preferred by the accused against his conviction and sentence after it is duly lodged could be dismissed as not pressed without entering findings on merit.

(2.) Petitioner who is common in all these revision petitions filed complaints against respondent No.l, common in all the cases for offence punishable under Section 138 of the Negotiable Instruments Act (for short "the Act"). Amount covered by the cheques is Rs. 60,000, Rs. 46,000 and Rs. 40,000, re-spectively. All those cheques being dishonoured for insufficiency of funds, pe-titioner served statutory notice on respon-dent No.l intimating dishonour and de-manding payment of the amount. Since there was no positive response, petitioner preferred complaints. Learned Judicial First Class Magistrate-II, Pathanamthitta before whom the cases came up for trial found respondent No.l guilty, convicted and sentenced him to pay fine of Rs. 5,000 each and in default of payment to undergo simple imprisonment for three months each under Section 138 of the Act. Respondent No.l preferred Criminal Appeals against his con-viction and sentence in the court of learned Sessions Judge, Pathanamthitta. Criminal Appeals were admitted. Notice was given to the learned Public Prosecutor and or-dered to the petitioner (who was respondent in those appeals). On 4.11.2000 it was rep-resented on behalf of respondent No.l (ap-pellant in those appeals) that the appeals are not pressed and thereon learned Sessions Judge dismissed the Criminal Appeals and confirmed conviction and sentence -passed by learned Magistrate. On 12.12.2000 petitioner has preferred these revision petitions challenging legality and extent of the sentence imposed on respondent No.l by learned Magistrate. When these revision petitions came before me for hearing it was noticed that the Criminal Appeals which were admitted for hearing were dismissed by learned Sessions Judge as not pressed without perusing the records and deciding the matter on merit and the conviction and sentence were confirmed. Noting that prima facie there appeared to be an illegality in the procedure adopted by learned Sessions Judge suo motu revisions were registered in each case against dis-posal of the Criminal Appeals. Notice of Criminal Revision Cases was given to the counsel on both sides and the Public Pros-ecutor. I have heard learned counsel on both sides and learned Public Prosecutor appear-ing for the State.

(3.) It is contended by learned counsel for petitioner that sentence awarded by learned Magistrate is not proper and legal and that the sentence was confined to payment of fine of Rs. 5.000/- each even after concluding that the cheques issued by respondent No.l for discharge of liability to the tune of Rs. 60,000, Rs. 46,000 and Rs. 40,000 were dishonoured for insufficiency of funds. Learned Magistrate has not adverted to the provisions of Section 357(3) of the Code of Criminal Procedure (for short, "the Code") which provides for awarding compensation to the victim who suffered loss at the hands of offender. Learned counsel contended that after fighting the case for several years pe-titioner has suffered loss on account of the nature of sentence imposed by learned Mag-istrate. Even out of the fine awarded, there is no direction for payment of amount to the petitioner by way of compensation under Section 357(1) of the Code. Learned counsel for respondent No.l in response contend that these revision petitions are not main-tainable insofar as judgments of the Trial Court have merged in the common judg-ment of the Appellate Court and hence judg-ments of the Trial Court are no more in ex-istence for this Court to exercise the power of revision on the sentence imposed by the learned Magistrate. Petitioner has not chosen to file revision against the common judg-ment of the Appellate Court confirming the conviction and sentence. Learned counsel has placed reliance on the decision inKunhayammed & Ors. v. State of Kerala., 2000 6 SCC 359.It is also contended by learned counsel that after nine years, this Court is not justified in exercising the power of suo motu revi-sion against the dismissal of the Criminal Appeals.