P MAZHER Vs. STATE OF A P

JUDGEMENT

(1.) This revision is filed against the judgment dated 6.12.2000 in Criminal Appeal No.68 of 1999 on the file of 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=00. 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=00, out of which a sum of Rs.1,50,000=00 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=00 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=00 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: