Thota Ashok Kumar ... vs M. Sridhar Goud, R.R.Dist. Ano
2022 Latest Caselaw 572 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

         CRIMINAL REVISION CASE No.309 OF 2016


ORDER:

This criminal revision case is preferred by the petitioner/

appellant/accused aggrieved by the judgment dated 30-6-2015 in

Crl.A. No.55 of 2012 on the file of the Additional Metropolitan

Sessions Judge for trial of Communal Offence Cases cum VII

Additional Metropolitan Sessions Judge, Hyderabad, questioning the

enhancement of sentence i.e. raising the fine amount of Rs.10,000/- to

Rs.9,00,000/- in default to suffer Simple Imprisonment for 3 months.

2. The case of the revision petitioner - accused in brief was that

the 1st respondent filed a private complaint against him for the offence

under Section 138 of the Negotiable Instruments Act (for short 'NI

Act') alleging that the accused approached the complainant for a hand

loan of Rs.9,00,000/- on 15-12-2007 and the complainant advanced

the said amount, the accused executed an undertaking letter promising

to repay the money within 3 months, but failed to repay the said

amount and dodged the matter on one pretext or other. On repeated

demands the accused issued a cheque bearing no 186962 dated

25-11-2009 for Rs.9,00,000/- drawn on Dena Bank, Saroor Nagar

branch, Hyderabad towards discharge of legally enforceable debt. The

cheque was returned unpaid with a memo for the reason of "funds

insufficient" in the account of accused. Thereafter, the complainant

issued statutory notices and filed the complaint under Section 138 of Dr.GRR,J 2 Crlrc.No309. of 2016

the NI Act. After recording the sworn statement of the complainant,

the VIII Additional Chief Metropolitan Magistrate, Hyderabad took

cognizance of the case and issued process. Subsequently, the case

was transferred to the XV Additional Judge cum XIX Additional

Chief Metropolitan Magistrate, Hyderabad, numbered as CC No. 134

of 2011 and tried by him. After considering the evidence on record,

the trial court convicted the accused and sentenced him to undergo

Simple Imprisonment for a period of one year and to pay fine of

Rs.10,000/-, in default of payment of fine, to undergo Simple

Imprisonment for three (3) months for the offence under Section 138

of the NI Act. Challenging the conviction, after payment of fine

amount, the accused preferred the appeal under Section 374 Cr.P.C.

The same was decided by the Additional Metropolitan Sessions Judge

for trial of Communal Offence Cases cum VII Additional

Metropolitan Sessions Judge, Hyderabad, vide Crl.A. No.55 of 2012.

The learned Judge dismissed the appeal confirming the judgment of

the XIX Additional Chief Metropolitan Magistrate, Hyderabad, but

modified the sentence, enhancing the fine amount from Rs.10,000/- to

Rs.9,00,000/-, in default to suffer Simple Imprisonment for three (3)

months, while maintaining the sentence of Simple Imprisonment for a

period of one year. Out of the fine amount collected, awarded

Rs.8,95,000/- to the complainant towards compensation under Section

357 Cr.P.C.

3. Aggrieved by the enhancement of fine amount, the petitioner/

accused preferred this revision contending that in the appeal preferred Dr.GRR,J 3 Crlrc.No309. of 2016

by the accused against the conviction, sentence could not be enhanced

as per the provision under Section 386(b)(iii) Cr.P.C. The

enhancement of fine and default imprisonment imposed by the learned

Sessions Judge was against the law and procedure and it was liable to

be set aside. The imposition of fine apart from awarding

imprisonment was under the discretionary power of the court. Order

to pay compensation was not mandatory. The word used under

Section 357 Cr.P.C. was "may", therefore there was no defect and

illegality in the procedure followed by the trial court. Both the courts

failed to consider the probabilities of financial capacity of the

complainant to lend the amount. Both the courts failed to examine the

pending civil dispute in O.S.No.1231 of 2008 filed under Specific

Relief Act for the alleged amount of Rs.9,00,000/- lent to the accused.

No prudent man would believe that a huge amount in lakhs of rupees

was lent to a person as hand loan without any document against whom

and his family member, a civil dispute was pending in the court. Both

the courts below failed to appreciate the oral and documentary

evidence on record. Both the courts below drawn presumptions under

Section 139 of the NI Act without considering the probabilities and

financial capacity of the complainant. The appellate judge failed to

record proper reasons to discard the documents marked as Exs.D1 to

D3. The respondent/complainant in his cross examination admitted

about execution of MoU dated 25-9-2010 (Ex.D1) and also admitted

his signature thereon and admitted that he had withdrawn the matter

before the XI Metropolitan Magistrate in pursuance of the MoU, but Dr.GRR,J 4 Crlrc.No309. of 2016

he intentionally denied the MoU in the case on hand. Both the courts

below failed to appreciate the evidence of PW.1 in proper perspective

and wrongly recorded the sentences and enhanced the fine amount,

hence prayed to set aside the conviction and sentences imposed by the

courts below.

4. Heard the learned counsel for the revision petitioner and the

learned counsel for the 1st respondent.

5. Now the point for consideration before this court is whether

the judgment of the appellate court in confirming the conviction of the

petitioner/accused and enhancing the fine amount is correct, legal or

proper, or need to be set aside.

6. The power under revision is conferred both on the High

Court and Sessions Court to satisfy itself as to the correctness, legality

or propriety of any finding, sentence or order passed by the courts

below. It is well settled that the scope of revisional jurisdiction is very

limited and the court cannot re-appreciate evidence afresh as if sitting

in appeal unless the evidence is found perverse and unreasonable. The

finding of facts recorded by the courts below cannot be interfered with

unless such findings are perverse or based on no evidence or suffered

from any error of law.

7. In the light of the settled principles with regard to the scope

of the revision, when the judgments of the trial court and the appellate

court are observed, no illegality is found in appreciating the evidence

on record by the courts below and applying the law to the facts of the

case. Both the courts below on considering the oral and documentary Dr.GRR,J 5 Crlrc.No309. of 2016

evidence on record and applying the presumptions as the accused

admitted his signature on the cheque and had not adduced any

acceptable material to rebut the presumptions raised under Sections

118 and 139 of NI Act, convicted the accused. The appellate court had

also taken into consideration the additional evidence adduced by the

accused under Section 391 Cr.P.C. It also discussed the evidence of

accused examined as DW.1 and discussed the documents marked

under Exs.D1 and D2 and rightly came to the conclusion that the

accused failed to rebut the presumptions under the Act. Hence, this

Court finds no illegality in the judgment of the appellate Court in

confirming the conviction on the revision petitioner/accused.

8. The only point that needs to be considered in this revision is

whether the enhancement of fine amount and imposing default

sentence by the appellate court in the appeal preferred by the accused

is in accordance with law.

9. Section 386 Cr.P.C. in Chapter XXIX deals with the powers

of the appellate court and 386 (b) Cr.P.C. is pertaining to the appeals

from convictions, which reads as follows:

"386. Power of the Appellate Court: After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) xxxxx

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him Dr.GRR,J 6 Crlrc.No309. of 2016

to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same."

10. As such, Section 386 (b) (iii) Cr.P.C. clearly prescribes that

in an appeal against a conviction, the nature of the sentence can be

altered but it cannot be enhanced.

11. The appellate Court committed an error in recording the

enhancement of the fine amount which he had ordered in Revision.

His mistake was in enhancing the fine amount in the appeal against

the conviction preferred by the accused. The appellate Court was

correct to the extent of dismissing the appeal confirming the sentence

passed by the trial Court in CC No.134 of 2011. It was even entitled

to modify the sentence but could not have enhanced the fine amount

in the appeal preferred by the appellant. As the complainant also

preferred a revision and the Sessions Court had allowed the said

revision and enhanced the fine amount and awarded the compensation

out of the fine amount to the complainant, the Sessions Court ought

not to have mentioned the same in the appeal, which created

confusion. As such, it is considered fit to allow the criminal revision

case in part deleting the portion of the judgment of the appellate court

to the extent of enhancement of fine amount in the appeal, however, Dr.GRR,J 7 Crlrc.No309. of 2016

confirming the conviction and sentence recorded by the trial Court as

confirmed by the appellate Court.

12. In the result, the Criminal Revision Case is allowed in part

deleting the portion i.e. "The accused shall undergo Simple

Imprisonment for a period of one year and to pay a fine of

Rs.9,00,000/- in default to suffer S.I., for 3 months (Instead of

Rs.10,000/- and out of the fine collected, Rs.8,95,000/- is awarded to

the complainant towards compensation under Section 357 Cr.P.C.

Already Rs.10,000/- collected by the Court below. The appellant-

Respondent shall pay the remaining fine amount of Rs.8,90,000/-

(Rupees Eight Lakhs Ninety thousand only) within two months from

the date of this Judgment. Lower Court is directed to take steps for

implementation of this Judgment", of the judgment dated 30.06.2015

passed in Crl.A. No.55 of 2012 by the Additional Metropolitan

Sessions Judge for trial of Communal Offence Cases cum VII

Additional Metropolitan Sessions Judge, Hyderabad, confirming the

conviction and sentence recorded by the trial Court as confirmed by

the appellate Court.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date : 11.02.2022 KTL