Basant,J.

(i) Does a criminal appellate court, in an appeal against conviction, have the power under Sec.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?

(ii) Is the expression "reverse the finding and sentence" in Sec.386(b)(i) of the Code elastic enough to justify it being read as "reverse the finding and/or sentence"?

(iii) If injustice results, can the revisional court invoke its powers of revision notwithstanding the fact that the lower appellate court has not technically committed any error?

(iv) Does the decision of the learned single Judge in Vijayakumar v. State (2009(3) KLT 499) lay down the law on this aspect correctly?

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 Sec.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 6/10/1995. 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 Sec.357(1) of the Code.

4. The accused felt aggrieved and approached the Sessions Court with an appeal under Sec.374 of the Code against the verdict of guilty, conviction and sentence. The appellate court found no reason to interfere with the finding of guilt and conviction; but the appellate court following the decision of the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) took the view that the sentence of fine imposed is illegal inasmuch as it exceeds the pecuniary limits prescribed under Sec.29 of the Code. The learned appellate Judge proceeded to pronounce the impugned judgment. The sentence of fine was modified and reduced to a fine of Rs.5,000/-. The default sentence was reduced to simple imprisonment for a period of three months.

5. The accused obviously is very happy and rejoiced with the appellate judgment and he has not chosen to challenge the same. The complainant finds himself in a quandary. He faces an unfortunate predicament. The trial court's order, though not in conformity with Sec.29 of the Code, had ensured that justice was done to him. He did not feel the necessity to challenge the same because, according to him, the order whether technically ri