TANMAY MAITY Vs. TUSHAR KANTI

JUDGEMENT

(1.) THIS criminal revision is preferred against order no.25 dated 25th September, 2013 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Howrah, in criminal appeal no.6 of 2012, whereby learned Judge of the court below held that the criminal appeal preferred by the opposite party against order dated 3rd January, 2012 passed by the learned Judicial Magistrate, 1st Court Howrah, in Case No.305C/2005 under Section 138 of the Negotiable Instruments Act, 1881 is maintainable in law.

(2.) IT appears from materials on record that the opposite party was held guilty for committing offence under Section 138 of the Negotiable Instruments Act and sentenced to suffer simple imprisonment for 15 days and to make payment of compensation of Rs.60,000/ - to the present petitioner by learned Judicial Magistrate, 1st Court Howrah, in Complaint Case No.305/2005 on 17th April, 2008. The said judgment and order of conviction was challenged by the opposite party by preferring an appeal being Criminal Appeal No.11/2008 which was disposed by the learned Additional Sessions Judge, 3rd Court, Howrah, on 20th March, 2009 by affirming the order of conviction and sentence passed by the learned Magistrate. The present petitioner challenged the judgment and order passed by learned Additional Sessions Judge, 3rd Court, Howrah, in criminal appeal no.11/2008 dated 20th March, 2009 by preferring criminal revision being CRR No.1540/2009 which was disposed of by His Lordship Hon'ble Justice Tapas Kumar Giri on 25th August, 2009. It appears from the judgment dated 25th August, 2009 passed in CRR No.1540/2009 that the Hon'ble High Court had set aside the order of sentence passed by learned Additional Sessions Judge, and consequently the order of sentence passed by the learned Judicial Magistrate. The High Court remanded the matter back to the trial court to pass necessary order only on the question of sentence and compensation according to law, which implies that the order of conviction passed by learned Magistrate and affirmed by learned Additional Sessions Judge in the criminal appeal was also affirmed by this High Court in CRR No.1540/2009.

(3.) MR . Ayan Bhattacharya, learned counsel for the petitioner, submits that the order of conviction passed by the learned Magistrate and affirmed by the learned Additional Sessions Judge, and also subsequently affirmed by this High Court by implication in CRR No.1540/2009 cannot be reopened either by learned Magistrate as trial court or by learned Additional Sessions Judge, 1st Court, Howrah, as the appellate court. By referring to various provisions of the Chapter XXIV of the Code of Criminal Procedure, 1973, Mr. Bhattacharya has categorically submitted that there is no provision in the Code of Criminal Procedure for preferring appeal only against sentence imposed by the trial court, except the limited provisions in Section 374(3)(b)&(c). The criminal appeal preferred by the opposite party against the order of sentence passed by learned Magistrate in compliance with the direction given by the High Court in CRR No.1540/2009 does not fall within the ambit of Section 374(3)(b)(c) of the Code of Criminal Procedure, 1973. According to Mr. Bhattacharya, the impugned order passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Howrah, is liable to be set aside as the impugned order was passed by the learned Judge of the court below in excess of jurisdiction conferred on him by law.