Perumal P.S.L. vs K. Baliah

A. Packiaraj, J.—This petition relates to the maintainability of the review petition filed on behalf of the petitioner in the above revisions. Since

the office felt that no review petition lies against the judgment rendered by the High Court in the High Court itself, the matter has been posted for

maintainability.

The learned counsel for the petitioner Mr. A. Thiagarajan, argued in-extenso and submitted that this Court has power to set aside its own order,

if the respective parties were able to show that the order is palpably wrong or that it should be amended in the interest of justice. To substantiate

the above said argument the-learned counsel has referred to Section 362, Cr.P.C which reads as follows:

Court not to alter judgment - Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has

signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

The learned counsel also referred to Section 482, Cr.P.C which reads as follows:-

Saving of inherent powers of High Court I Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to

make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise

to secure the ends of justice.

Finally, the learned counsel argued that Section 482, Cr.P.C has a over-riding effect of Section 362, Cr.P.C and that if the Court comes to a

conclusion that its earlier order is wrong or based on erroneous consideration, it can certainly invoke the extra ordinary powers u/s 482, Cr.P.C

and rectify the order. According, to him, the orders passed in the aforesaid revisions are to be corrected since this Court has and overlooked the

salient features of Section 138, Negotiable Instruments Act; failed to note the distinction between the sentence and fine under criminal

jurisprudence of punishment; to understand the vital distinction between the punishment under pure criminal law and extent of fine to be imposed

under the Negotiable Instruments Act for covering the compensation payable to the complainant among other grounds.

Before going into the aspect of maintainability, I feel it is proper to give a gist of the circumstances under which the order in Crl.R.C.Nos. 719

and 720 of 2002 has come to be passed. Two cases had been filed by the petitioner herein before the XIII Metropolitan Magistrate, which had

been numbered as C.C.No. 5163 of 2000 and 10251 of 2000 against the same respondent for offence u/s 138, Negotiable Instruments Act. Two

cheques had been given by the petitioner (accused) in favour of the respondent (complainant) to the tune of Rs. 10,000 and Rs. 50,000

respectively. Towards the discharge of the liability the two cheques were issued by the accused which on presentation were dishonoured for want

of sufficient funds. Hence after observing all the formalities contemplated under the Negotiable Instruments Act, such as issuing notice and waiting

for the mandatory period, the complainant filed a complaint before the Court. The evidence have been let in by the complainant to prove his case.

Though the accused denied having committed the offence, the Courts had accepted the prosecution case and found the accused guilty and

sentenced him to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 2000, in default to undergo simple imprisonment for one

month and in addition to pay a compensation of Rs. 10,000 in the first case and Rs. 50,000 in the second. Aggrieved by the same, two appeals

were presented in C.A.Nos. 111 and 112 of 2001 before the Additional Sessions Judge, Chennai, who dismissed the appeals. Aggrieved by the

same, the revisions had been filed. This Court after going through the records and the judgment had confirmed the conviction. However, as far as

the sentence is concerned, it confirmed the sentence of imprisonment and also fine. But instead of compensation, since the Supreme Court has

clearly held in Sivasubramaniam v. Thangavel, 2002 (1) Cri. L.J. 102, that compensation could be granted only from the fine payable by the

accused, if the Court has imposed a fine. In the alternative, if fine has not been imposed, it is open for the Court to give any compensation as it

feels. This Court in view of Section 357(e), Cr.P.C and in view of the Supreme Court decision has felt that compensation cannot be given above

Rs. 5000. Since Rs. 2000 has been imposed as fine by the lower Court against which the respondent had not preferred any petition for

enhancement, this Court has set aside compensation. It is against this, the present review petition has been filed.

Though in the review, several grounds have been taken to alter the judgment, if accepted, the preliminary question arises whether the Court

which passed the judgment has a right to reverse or alter its own judgment ? Hence the matter has been posted for maintainability.

The learned counsel for the petitioner submitted the following point:-

Section 482, Cr.P.C gives an unlimited power to the High Court to make any such orders as may be necessary to give effect to any order under

this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Therefore according to the learned counsel,

even if a judgment has been passed by this Court, and if subsequently, it has been brought to notice that the said judgment has failed to secure the

ends of justice, certainly this Court has the power to interfere and correct the same.

However, a reading of Section 362, Cr.P.C in my opinion would prevail over Section 482, Cr.P.C and Section 362, Cr.P.C is a specific

Section which bars or prohibits the Courts from altering or correcting its own judgment except for correcting the typographical errors. When this

specific provision prohibits the Court to do an act, it cannot circumvented by the aid of another provision under the Code and supersede the

provision made in the concerned Section and pass an order. It is settled principle of law that the specific provision overrides the genera provision.

Further the Supreme Court in a case Hari Singh Mann v. Harbhajan Singh Bajwa and Ors., AIR 2001 SC 43, has clearly held as follows:

There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise for its

appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482, Section

362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to

correct a clerical on arithmetical error. The section is based on an acknowledged principle of law-that once a matter is finally disposed of by a

Court, the said Court in the absence of a specific statutory provision becomes, functus officio and disentitled to entertain a fresh prayer for the

same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court

becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of

correcting a clerical or arithmetical error.

Therefore this makes abundantly clear that the judgment rendered by the High Court cannot be altered or reversed by the same Court giving aid

of Section 482, Cr.P.C or any other provision in the Cr.P.C. The said decision becomes finality and if at all the parties are aggrieved, the party has

to necessarily approach the higher forum. Consequently, no review would ever lie. Hence, I hold this review petition against the judgment rendered

by the criminal Court cannot be entertained.