ISHAQUE Vs. RAVEENDRAN THAMPAN

JUDGEMENT

(1.) (i) Does a Criminal Appellate Court, in an appeal against conviction, have the power under S.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

(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 S.138 of the 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 06/10/1995. 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 S.357(1) of the Code.