Due to failure in observing provisions of sections 360 and 361 of the Code, Court cannot review its order.

1. This petition is filed by the respondent in Criminal Appeal No.470 of 1994 under Sec.482 of the Crl.P.C. praying to afford the petitioner an opportunity of being heard on the question of sentence and to modify the order of sentence as deemed just and proper by this Court.

2. The petitioner was the accused in C.C.No.40 of 1993 on the file of the Judicial First Class Magistrate's Court, Changanassery, wherein he was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act on the basis of the complaint filed by the respondent. After trial the lower court found the petitioner was not guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act, acquitted and set him at liberty, by judgment dated 27.1.1994. The respondent herein preferred Criminal Appeal No.470 of 1994 before this Court challenging the order of acquittal. This Court after hearing both sides, by judgment dated 5.2.1998 reversed the findings of the lower court, found the petitioner guilty of the offence punishable under Sec.138 of the Act and convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.3,000 in default of payment to undergo simple imprisonment for a period of one month. The petitioner has filed this petition to modify the sentence awarded by this Court after affording an opportunity to be heard regarding the question of sentence under Sec.482 of the Crl.P.C.

3. The counsel for the petitioner vehemently submitted that the petitioner was not heard by this Court before awarding sentence and the counsel for the petitioner did not get an opportunity to bring to the notice of this Court the provisions of Secs.360 and 361 of the Crl.P.C, and to consider whether the petitioner can be dealt with under those benevolent provisions of law. Therefore, according to him, in order to meet the ends of justice the benevolent provisions of Secs.360 and 361 of the Crl.P.C. or Sec.4 of the Probation of Offenders Act should be invoked and the sentence passed against the petitioner should be kept in abeyance during the period of probation that may be determined by this Court.

4. This petition is vehemently opposed by the respondent on the ground that no court is empowered to alter or review the sentence awarded except otherwise provided under Sec.362 of the Crl.P.C. and inherent powers of this Court under Sec.482 has absolutely no application to the facts of this case.

5. The counsel for the petitioner submitted that the fact that this Court has no power to review its findings is admitted and that Sec.362 of the Crl.P.C. empowers the court to alter or review the judgment only to correct a clerical or arithmetical error save as otherwise provided by the C.P.C. or by any other law for the time being in force. He also argued that Sec.42 of the Crl.P.C. saves the inherent power of the court to give effect to any order passed under the Crl.P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. According to him, the inherent power of this Court to secure ends of justice is not taken away or curbed by the provisions of Sec.362 of the Crl.P.C. he further argued that in this case, there is an omission on the part of this Court to take note of the statutory provisions contained in Secs.360 and 361 of the Crl.P.C. or there is failure on the part of the counsel for the petitioner to bring those statutory provisions to the notice of this Court and therefore, the petitioner only seeks to bring the judgment of this Court in consonance with the statutory requirement and to do justice without altering the sentence by invoking the benevolent provisions of Secs.360 and 361 of the Crl.P.C. He also argued that such a course will only secure the ends of justice without any violence to Sec.362 of the Crl.P.C. which is empowered under Sec.482 of the Crl.P.C.

6. In the decision in State of Orissa v. Ram Chander State of Orissa v. Ram Chander , A.I.R. 1979 S.C. 87 th