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2020 DIGILAW 325 (KAR)

K. N. Shashidhara v. V. S. Srikantha

2020-02-04

K.NATARAJAN

body2020
JUDGMENT 1. This revision petition is filed by the petitioner/accused under Section 397 of Criminal Procedure Code (for short Cr.P.C.) being aggrieved by the judgment of conviction and sentence dated 28.09.2016 passed by the Principal Civil Judge and JMFC, Chikkanayakanahally, (hereinafter referred to as Trial Court) in CC No.189/2014 which was modified by V Additional District and Sessions Judge, Tiptur (hereinafter referred to as First Appellate Court) vide order dated 13.12.2017 in Crl.A.No.10035/2016. 2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent. 3. The status of the parties before the Trial Court is retained for the sake of convenience. 4. The case of the petitioner/accused before the Trial Court is that the respondent/complainant filed a complaint under Section 200 of Cr.P.C. against the accused for the offence under Section 138 of N.I Act alleging that the accused borrowed loan of Rs.2,50,000/- from the complainant and in order to discharge the said debt, the accused gave a cheque. The cheque was dishnoured for insufficiency of fund thereby a complaint came to be lodged. After appearance, the accused pleaded not guilty. On behalf of the complainant, he himself got examined as PW.1 along with another witness as PW.2 and got marked 14 documents as per Exs.P.1 to P.14. On behalf of the accused, no evidence either oral or documentary was let in before the Trial Court. The Trial Court found the accused guilty of the offence and convicted and sentenced him to pay compensation of Rs.1,00,000/- in default, to undergo simple imprisonment for six months. Assailing the same, the accused, preferred an appeal before the First Appellate Court and the First Appellate Court after hearing the arguments, allowed in the appeal in-part. However, enhanced the sentence to pay fine of Rs.3,00,000/- in default, to undergo simple imprisonment for a period of one year and six months. Further, ordered to pay Rs.2,50,000/- to the complainant out of the fine amount collected by way of compensation. The same is challenged before this Court by the accused. 5. However, enhanced the sentence to pay fine of Rs.3,00,000/- in default, to undergo simple imprisonment for a period of one year and six months. Further, ordered to pay Rs.2,50,000/- to the complainant out of the fine amount collected by way of compensation. The same is challenged before this Court by the accused. 5. Learned counsel for the petitioner mainly argued on the point that the First Appellate Court committed error in the appeal filed by the accused by mentioning it as allowed in-part, but enhanced the sentence from Rs.1,00,000/- to Rs.3,00,000/-, which is totally illegal when there is no appeal filed by the complainant before the First Appellate Court for enhancement of sentence and compensation as per Section 357 of Cr.P.C. On that ground, learned counsel for the accused prays for setting aside the judgment of the Courts below. 6. Learned counsel for the respondent though supported the judgment of both the Court below, fairly conceded that the complainant has not filed any appeal for enhancement of sentence, but the First Appellate Court has enhanced the sentence in the appeal filed by the accused. 7. Upon hearing the arguments and on perusal of the records, the point that arises for consideration is as follows: 'Whether the First Appellate Court committed error in allowing the appeal in-part and in enhancing the sentence and the compensation in the appeal filed by accused which calls for interference by this Court?' 8. Admittedly, a complaint was filed against the accused for dishonouring of the cheque for Rs.2,50,000/-. The Trial Court convicted the accused and sentenced him to pay compensation of Rs.1,00,000/- in default, to undergo simple imprisonment for six months, which is not correct. Absolutely, there is no discussion or reasoning given by the Trial Court to reduce the cheque amount to Rs.1,00,000/- and even without imposing any fine, the Trial Court has ordered to pay compensation, which is not correct. The First Appellate has rightly stated that the Trial Court ought to have convicted the accused and imposed the fine. But the Trial Court committed error in ordering to pay compensation of Rs.1,00,000/- without assigning any reason. The sentence has also not been properly imposed by the Trial Court. The First Appellate has rightly stated that the Trial Court ought to have convicted the accused and imposed the fine. But the Trial Court committed error in ordering to pay compensation of Rs.1,00,000/- without assigning any reason. The sentence has also not been properly imposed by the Trial Court. Once, the accused is found guilty, the Trial Court ought to have convicted the accused for the offence under Section 138 of the N.I. Act and also the question of reducing the cheque amount does not arise. Therefore, the judgment of the Trial Court is required to be set aside. However, the First Appellate Court has also committed error in passing the judgment by allowing the appeal in-part and enhancing the compensation as well as the sentence in the appeal filed by the accused. Admittedly, the complainant has not filed any appeal under Section 372 of Cr.P.C on the other hand, the accused himself filed an appeal under Section 374 of Cr.P.C. In the discussions made by the First Appellate Court, from paragraph 17 till the end, it goes to show that the First Appellate Court has considered the appeal as could as the appeal filed by the complainant, but committed error in allowing the appeal in-part and enhancing the sentence to pay Rs.3,00,000/- in default, to undergo simple imprisonment for one year and six months and to pay compensation of Rs.2,50,000/-, which is also not correct. It is not the case where both the complainant and accused have filed appeals. Even if the respondent-complainant has not filed the appeal, he can argue the case. Though the First Appellate Court has power to modify the order of sentence, but while enhancing the sentence, it is necessary to hear the accused. For the purpose of convenience, the provision of Section 386(b)(iii) of Cr.P.C. is extracted as under: '386. Powers of the appellate court. xxx (a) xxx (b) in an appeal from a conviction- (i) xxx (ii) xxx (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;' and further, the proviso to Section 386 says that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. But here in this case, though the First Appellate Court can modify the sentence, but the question of allowing the appeal filed by the accused without hearing on sentence is against the provisions of Section 386 of Cr.P.C. Therefore, the judgment of the First Appellate Court is liable to be set aside. Hence, I proceed to pass the following: The Criminal Revision Petition is allowed. The judgments of the Trial Court as well as the First Appellate Court are set aside and the matter is remanded to the Trial Court for fresh consideration based upon the evidence on record proper reason and dispose of the matter in accordance with law. The accused and the complainant are directed to appear before the Trial Court on 10.03.2020 without expecting any further notice. Send back the Trial Court records and a copy of this order.