LATA SHAH Vs. NITIN

JUDGEMENT

(1.) APPLICANT has filed this application under Section 482, Cr. PC against the order dated 3-11-2001 passed in Criminal Revision No. 545/2001 passed by Second Addl. Sessions Judge, Indore arising out of judgment and finding dated 13-9-2001 passed by Judicial Magistrate First Class, Indore, in Criminal Case No. 2808/99, dismissing the revision of the applicant for want of prosecution on 2-11-2001 and thereafter his application for hearing the revision after issuance of notice to other side on merits by impugned order.

(2.) THE facts in narrow compass are that the applicant filed a complaint case before the Trial Court under Section 138 Negotiable Instrument Act against the non-applicant Nitesh alleging that the non-applicant issued a cheque amounting to Rs. 45,000/- (forty five thousand) on 16-4-99 but the same was dis- honoured for want of fund in the concerned Bank. Judicial Magistrate First Class, Indore registered the Criminal Case No. 2808/99 and after recording the evidence and hearing both the parties, convicted the non-applicant till rising of the Court with fine of Rs. 5000/- (five thousand) and in default of payment of fine further SI for four months. This leniency in sentence was adopted by the Trial Court on the ground that during pendency of the case, the non-applicant had deposited the cheque amount i. e. , Rs. 45,000/- (forty five thousand) in the Trial Court and also permitted the applicant to withdraw the said amount of Rs. 45,000/- (forty five thousand ). Dis-satisfied with this judgment and finding of Trial Court, the applicant filed a revision for enhancement before the Revisional Court i. e. before Second Addl. Sessions Judge, Indore where his revision was dismissed for want of prosecution because of absence of complainant and counsel on 2-11-2001. Thereafter the applicant filed an application for restoration and hearing the matter on merits, and after issuing notice to non-applicant, the Revisional Court declined to accept his prayer and rejected his application by order dated 3-11 -2001 on the ground that though the applicant was absent yet the revision was also dismissed on merits. Revisional Court has also mentioned that under Section 395, (1), Cr. PC revision can only be filed against the order passed in pending cases. In the present case revision was filed by the applicant against the final judgment so the revision is not maintainable. This approach of the Revisional Court is not correct that the revision can be filed by party only against the order passed in pending criminal cases. Section 395, Cr. PC is not provision for filing or consideration of revision but it is provision for reference which is different than the provision and power of revision enshrined under Section 397, Cr. PC. On this count the Revisional Court has committed illegality but since there is no provision in the Cr. PC for filing restoration or review, the application of applicant dated 3-11-2001 was not maintainable. Because the Lower Courts have no inherent power which can only be invoked under Section 482, Cr. PC by High Court.

(3.) IN the present case, the counsel for the applicant has filed this revision against the order dated 3-11-2001 he has not filed order dated 2-11-2001 by which his revision was dismissed. He has filed this petition under Section 482, Cr. PC for enhancement of sentence and compensation amount. According to this Court, this petition is not maintainable against order dated 3-11-2001 which is an order dismissing the application of applicant filed for restoration of the criminal revision. Apart from this, since the counsel for the applicant has filed photo-state copy of certified copy of Trial Court judgment and same is perused by this Court in its entirety, this Court does not find any illegality, irregularity or impropriety while imposing the sentence upon the non-applicant. The question of sentence is normally prerogative of Trial Court which had an opportunity to consider the demeanour and behaviour of parties appearing before them. In the present case, the Trial Court has awarded sentence till rising of the Court with fine of Rs. 5,000/and the non-applicant had during the pendency of trial already deposited the cheque amount i. e. , Rs. 45,000/- (forty five thousand) which shows his bona fide. Under Section 138 Negotiable Instrument Act, no maximum sentence is prescribed, therefore, the sentence awarded by the Trial Court appears to be just and proper requiring no interference by this Court under its inherent power.