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2023 DIGILAW 897 (JHR)

Mukteshwar Prasad v. State of Jharkhand

2023-07-18

SANJAY PRASAD

body2023
JUDGMENT : Sanjay Prasad, J. The present Criminal Revision Application has been filed on behalf of the petitioner by challenging the judgment dated 02.12.2016 passed by the learned Sessions Judge, Lohardaga in Criminal Appeal No.21 of 2016, by which, the said Criminal Appeal has been dismissed with the modification in sentence by which the appellant has been directed to pay a compensation amount of Rs.7,00,000/- within 30 days from the date of passing of the order, failing which, the compensation amount is to be realized from the movable or immovable properties of the appellant and in default of payment of compensation amount within stipulated time, the appellant will undergo Simple Imprisonment for a period of 1 and ½ years apart from the realization of the compensation amount from his movable or immovable properties, although vide judgment of conviction and order of sentence dated 05.02.2016 passed by Sri Shekhar Kumar, learned Judicial Magistrate, 1st Class, Lohardaga in connection with Complaint Case No.201/2012, the petitioner has been convicted for the offence under Section 138 of the N.I. Act and has been sentenced to undergo Rigorous Imprisonment for a period of (02) two years and to pay a compensation amount of Rs.7,00,000/- to the complainant by the Judicial Magistrate. 2. The case of the complainant, in brief, is that the complainant is the Owner of Rudra Enterprises and he is engaged in the business of sale of cement, iron-rod and other building materials. It is further stated that the complainant had supplied materials to the accused-petitioner and Rs.5,35,000/- was due against the accused in lieu of materials supplied by the complainant. It is further stated that on 31.07.2012, the accused-petitioner came to the shop of the complainant which is situated at Block More, Lohardaga and handed over two cheques bearing Cheque Nos.045454 & 045455 for the amount of Rs.4,25,000/- and Rs.1,10,000/- respectively. It is also stated that both the cheques were deposited by the complainant but the same were dishonored vide cheque return memo dated 06.09.2012 due to “insufficient fund”. Subsequently, a legal demand notice was sent to the accused-petitioner on 14.09.2012 through registered post, but the petitioner to pay the cheque amount and finally on 12.10.2012, the complaint case was filed. 3. Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Someshwar Roy, learned counsel for the State. Subsequently, a legal demand notice was sent to the accused-petitioner on 14.09.2012 through registered post, but the petitioner to pay the cheque amount and finally on 12.10.2012, the complaint case was filed. 3. Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Someshwar Roy, learned counsel for the State. However, none had appeared on behalf of the O.P No.2, although notices were issued upon the O.P. No.2 vide order dated 31.07.2017 and order dated 28.06.2022 respectively. 4. It is submitted by the learned counsel for the petitioner that the judgments and order passed by the learned Court below are illegal and not sustainable in the eyes of law. It is further submitted that learned Courts below ought to have considered that the notice as envisaged under Section 138(2) of the N.I. Act, 1938 as amended up to date, has not been served upon the petitioner and there is no material A/D available on record to show that the notice has been served upon the petitioner and on this basis the judgment passed by the learned Sessions Judge is liable to be set-aside. It is further submitted that the cheques in question were not issued in discharge of legal liabilities and debts. It is further submitted that the complainant failed to prove any chit of paper regarding purchase of cement by the petitioner. It is further submitted that the learned Court below ought to have considered that the cheque in question has been misused by the complainant because the same had been presented before the Bank by writing the date on it, although on the alleged date there was no liability of the petitioner towards the complainant. It is further submitted that the learned Court below failed to appreciate Ext.-A, which is the certified copy of F.I.R. of Jobang P.S. Case No.01/2012 which was lodged by the petitioner for faulty construction of bridge in which bogus raw materials were supplied by the complainant. The learned counsel for the petitioner has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Subodh S. Salaskar vrs. Jayprakash M. Sahas reported 2008 (13) SCC 689 and has submitted that the complaint case was premature one and hence the judgments and order passed by the learned Court below may be set-aside in the interest of justice and this Criminal Revision Application may be allowed. 5. Jayprakash M. Sahas reported 2008 (13) SCC 689 and has submitted that the complaint case was premature one and hence the judgments and order passed by the learned Court below may be set-aside in the interest of justice and this Criminal Revision Application may be allowed. 5. On the other hand, learned counsel for the State has opposed the prayer of the petitioner and has submitted that the judgments and order passed by the learned Court below are fit and proper and no interference is required. It is further submitted that the complainant was examined as C.W.1, who has fully supported his case. It is further submitted that Ext.1 and Ext.1/1 are the cheques, which were issued by the petitioner himself and which have not denied by him and both the cheques bear the signature of the petitioner and thus, cheques, issued by the petitioner, were found valid in discharge of legal liability. It is further submitted that Ext.-3 is the legal notice and Ext.2 is the cheque return Memo dated 06.09.2012 and Ext.3 is the legal notice dated 13.09.2012 and Ext.4 is the postal receipt of the said legal notice and the complaint case was filed on 12.10.2012. It is further submitted that Ext. – ‘A’ relates to the O.P No.-2 which is certified copy of the FIR of Jabang P.S. Case No.01/2012 which was instituted by the petitioner against the O.P No.-2 for causing loss to the State Government and the same is not relevant. It is further submitted that the petitioner has got examined two (02) witnesses in support of his case, which have been disbelieved by the learned Court below and as such, this Criminal Revision Application may be dismissed. 6. Perused the Lower Court Records of this case and also considered the submissions of both the sides. 7. It transpires from the complaint petition that the petitioner had arrived on 31.07.2012 at the shop of the complainant -O.P No.2 and had given two cheques to him bearing cheque bearing Nos. 045454 and 045455 for an amount of Rs.4,25,000/- and Rs.1,10,000/- respectively in lieu of materials supplied by the O.P No.2. However, when the cheques were presented for encashment on 06.09.2012, then the same were dishonoured on 06.09.2012 due to insufficient fund in account of the petitioner. 045454 and 045455 for an amount of Rs.4,25,000/- and Rs.1,10,000/- respectively in lieu of materials supplied by the O.P No.2. However, when the cheques were presented for encashment on 06.09.2012, then the same were dishonoured on 06.09.2012 due to insufficient fund in account of the petitioner. Thereafter, legal notice was sent by the O.P No.2 to the petitioner on 14.09.2012 and the complaint case was filed on 12.10.2012. 8. In order to prove his case, the complaint has examined only one witness namely, Vinay Kumar (i.e., Complainant) as C.W.1. 9. The complainant has got marked the following documents as Exhibits which are as follows:- (i) Ext.-1 and 1/1 are the cheques bearing No.-045454 and cheques No.-045455 both dated 31.07.2012, (ii) Ext.-2 is the cheque return memo dated 06.09.2012, (iii) Ext.-3 is the legal notice dated 13.09.2012, (iv) Ext.-4 is the postal receipt dated 14.09.2012, 10. Thereafter, the accused-petitioner was examined under Section 313 Cr.P.C. on 26.08.2015 and he denied the circumstances put forth before him. 11. Thereafter, the petitioner has produced two witnesses in support of his case who are as follows:- (i) D.W.1 is Mukteshwar Prasad, (i.e. the petitioner) and (ii) D.W. 2 is Ashok Kumar Sahu 12. The following document were marked as Exhibits on behalf of the defence which are as follows:- (i) Ext.-‘A’ is the certified copy of the FIR of Jobang P.S. Case No.01/2012 dated 13.01.2012 (ii) Ext.A/1 to Ext.A/16 are the sixteen cash memo of Rudra Enterprises (iii) Ext.B and Ext.B/2 are the money receipts dated 06.10.2021 and 22.11.2011 and 25.03.20211 respectively. 13. Thereafter, the learned Judicial Magistrate, 1st Class, Lohardaga after considering the evidence of both the sides, has convicted the petitioner for the offence under Section 138 of the N.I Act and has sentenced him to undergo Simple Imprisonment for a period of two (02) years and to pay compensation of Rs.7,00,000/- and the learned Appellate Court has dismissed the appeal filed by the petitioner by modifying the sentences. 14. The learned Trial Court below has considered the evidence of the complainant, who has supported his case during his evidence and during his cross-examination he has stated that cheques were given by the petitioner. Thus, the learned Trial Court has convicted the petitioner on the basis of the evidence of C.W.1 i.e., Vinay Kumar and the documents filed on behalf of the O.P No.2. 15. Thus, the learned Trial Court has convicted the petitioner on the basis of the evidence of C.W.1 i.e., Vinay Kumar and the documents filed on behalf of the O.P No.2. 15. It further transpires that the learned Appellate Court below has held in its judgment that the complainant’s case was presented before the Court within time on 12.10.2012, and notice was sent on 14.09.2012 and has upheld the judgment and sentence passed by the learned Trial Court by dismissing the Criminal Appeal No.21 of 2016. 16. From scrutinizing the evidence of C.W.1 i.e., Complainant, it would appear that he has filed his evidence on an affidavit stating therein, that he has given materials and articles of Rs.5,35,000/- till 31.07.2012 in debt from his shop, while the petitioner was doing contract work for the building construction and he wanted to purchase cement, iron-rod from his shop. Thereafter, the petitioner had given two cheques bearing Cheque Nos.045454 and 045455 respectively for an amount of Rs.4,25,000/- and Rs.1,10,000/- respectively in his shop on 31.07.2012. However, when the cheques were presented for encashment by the complainant then the same were dishonored due to ‘insufficient funds’ and for which, he had sent legal notice upon the petitioner on 14.09.2012. During his cross-examination, he has asserted that cheques were issued with regard to the business for the period of April, 2012 to June, 2012 and debt was approx. Rs.6,00,000/-. He has also stated that the petitioner has taken some amount on debt, but he has not returned the said amount. However, he has further stated that he is not aware that due to damage of bridge, one case bearing Jobang P.S. Case No.01/2012 was instituted against him. He has further stated that the petitioner was doing the construction of Bridge Work at village Barabar in Kisko-Block. Although, he has stated that due amount was approx. Rs.6.00 Lakhs, but he failed to say as to what amount in cash has been taken. Thus from the evidence of C.W.-1, it would appear that the cheques handed over by the petitioner had been dishonored. 17. Although, he has stated that due amount was approx. Rs.6.00 Lakhs, but he failed to say as to what amount in cash has been taken. Thus from the evidence of C.W.-1, it would appear that the cheques handed over by the petitioner had been dishonored. 17. D.W.1 is the petitioner himself, who has stated that he was doing contract work about four years ago and had constructed work bridge at village and for which, he had purchased the building material and other building material from the shop of the complainant and one Ram Pukar Sahu and Ashok Sahu were looking after his works and Niraj Kumar was Iron Mason. However, one slab of Barbara Birdge was damaged and quality of cement, iron-rod were not proper and for which, the First Information Report was lodged, which were marked as Ext.A and due to which, the petitioner had suffered loss of Rs.10,00,000/-(Rs.10.00 Laks). During his further cross-examination, he has stated that he had suffered loss of Rs.10,00,000/- but he had not filed any case of compensation. Thus, from scrutinizing the evidence of D.W.1, it is evident that although he had himself admitted for taking cement, iron-rod and other building materials from the shop of the complainant, but the Bridge was damaged and he claimed that he had suffered a loss of Rs.10,00,000/- as he had to construct the Bridge again at his own cost. 18. Therefore, it is evident that the complainant had filed the complaint case on 12.10.2012 i.e. much after lodging of FIR against him by the petitioner on 13.01.2012 and hence, there cannot be any occasion to take away articles and materials from the shop of the complainant by the petitioner, when the petitioner had already lodged FIR against the O.P No.2 on 13.01.2012. 19. D.W.2 is Ashok Kumar Sahu, who has stated that the petitioner is a Contractor and his relative and he was looking after the Bridge while the same was under construction for the period of 2010-2014. He has further stated that cement, iron-rod and other building material were purchased from the shop of the complainant and he has proved Ext.A/1 to Ext.A/16 respectively which are the bills of supply of cement and iron-rod from the shop of the Rudra Enterprises. He has proved Plain Money receipt dated 06.10.2010, 22.11.2011 and 25.03.2011, which were marked as Ext.B, Ext.B/1 and Ext.B/2 respectively. He has proved Plain Money receipt dated 06.10.2010, 22.11.2011 and 25.03.2011, which were marked as Ext.B, Ext.B/1 and Ext.B/2 respectively. During his cross-examination, he has stated that he has come for evidence at the instruction of the petitioner and receipts are in the signature of the O.P No.2. He has also stated that he had tested the quality of cement. 20. One of the main question in this Criminal Revision Application is that whether the complainant was filed within stipulated time or before the period as per the provision of Section 138 and Section 142 (b) of the N.I. Act. 21. It has been held in the case of Subodh S. Salaskar Versus Jayprakash M. Shah and Another reported in 2008 (13) SCC 689 at para-19, 22, 23, 24, 25 and 26 as follows:- “Para.19:- A complaint petition in view of clause (b) of Section 142 of the Act was required to be filed within one month from the date on which the cause of action arose in terms of clause (c) of the proviso to Section 138 of the Act which stipulates that: “138. (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.” Para.22:- In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: “Para.27:- Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” Para-23. Thirty days' time ordinarily must be held to be sufficient for service of notice. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by speed post, ordinarily the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days. Para-24. Presumption of service, under the statute, would arise not only when it is sent by registered post in terms of Section 27 of the General Clauses Act but such a presumption may be raised also under Section 114 of the Evidence Act. Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. Such a notice, as has been held by a three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed [ (2007) 6 SCC 555 : (2007) 3 SCC (Cri) 236] should be construed liberally, stating : (SCC p. 565, para 17) “17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [K. Bhaskaran v. SankaranVaidhyan Balan, (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the ‘giving of notice’ in the context of clause (b) of the proviso was the same as the ‘receipt of notice’ a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.” Para.25:- The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001. Para.26:- Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation.” 22. If the proviso appended to clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation.” 22. However, in the above case, the complaint was filed after delay of more than 15 days and as such, it was observed the High Court should not have condoned the delay, if the complaint was not filed within time. It is evident that the complaint case was to be filed within 30 days. Therefore, above case is not applicable on the facts and in the circumstances of this case as it relates to filing of complaint case by the complainant after expiry of 15 days from the statutory period. 23. It further transpires that the both the learned Court below have not considered Ext.A/1 to A/16 and Ext. B to B/2 respectively filed on behalf of the petitioner and both the learned court below have not discussed even said Exhibits marked on behalf of the petitioner. 24. It further transpires that Ext.1 & 1/1 respectively, are the cheques issued by M. Prasad as Proprietor of M/s. Lotus Construction to M/s Rudraenterprises (not to the complainant as Vinay Kr. Singh), but complaint filed by Vinay Kumar Singh is against Mukhteshwar Prasad, M/s Lotus Construction, but company of the petitioner has not been made party. 25. Ext. A/1 to A/9 respectively are the receipts issued by Rudra Enterprises to Lotus Construction whereas Ext.-A/10 to A/16 respectively, are the receipts of Rs.73,600/- with VAT @ 14% each dated 06.09.2011 & 07.09.2011 and on other dates. 26. Ext.-B is plain paper of Rs.2,41,080/- showing payment of amount by the Lotus Construction to one Rampukar on 06.10.2010. 27. It transpires that the complainant had purchased the material in the capacity of Proprietor of M/s. Rudra Enterprises from the M/s. Lotus Construction through its Proprietor Mukteshwar Prasad. However, the petitioner has not made M/s Lotus Construction i.e. the firm as an accused in this case. 28. It further transpires that Ext.-1 and 1/1 are the cheques of 31.07.2012 and 31.07.2012 of Rs.4,25,000/- Rs.1,10,000/- respectively issued in favour of Ms. Rudra Enterprises by Proprietor Ms. Lotus Construction. However, the said Ms. Lotus Construction has not been made an accused in this case. 28. It further transpires that Ext.-1 and 1/1 are the cheques of 31.07.2012 and 31.07.2012 of Rs.4,25,000/- Rs.1,10,000/- respectively issued in favour of Ms. Rudra Enterprises by Proprietor Ms. Lotus Construction. However, the said Ms. Lotus Construction has not been made an accused in this case. 29. Therefore it is evident that in absence of company or firm being made as the party, the complaint case was not maintainable. 30. It has been held in the judgment reported in the case of Aneeta Hada Vs. M/s Godfather Travels and Tour Pvt. Limited reported in (2012) 5 SCC 661 at para-53, 58 and 59 as follows:- “Para-53:-It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. Para-58:-Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. Para-59:-In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. Para-59:-In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distilleries has to be treated to be restricted to its own facts as has been explained by us hereinabove.” 31. It has been held in the judgment reported in the case of G. Ramesh Versus Kanike Harish Kumar Ujwal and Another reported in (2020) 17 SCC 239 at para-11, 12 and 16 as follows:- Para-11:-In terms of the explanation to Section 141, the expression “company” has been defined to mean any body corporate and to include a firm or other association of individuals. Sub-section (1) of Section 141 postulates that where an offence is committed under Section 138 by a company, the company as well as every person who, at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business shall be deemed to be guilty of the offence. Para-12:-In determining as to whether the requirements of the above provision have been fulfilled, it is necessary to bear in mind the principle of law that a partnership is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include a firm. Para-16:-In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated.” 32. At this stage, it is relevant to quote Section 30 of CrPC and Section 386 of the CrPC, which read as follows:- “Section 30:-Sentence of imprisonment in default of fine.—(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term— (a) is not in excess of the powers of the Magistrate under section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29. Section - 386:-Powers 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) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him 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; (c) ……………………………………………………….. (d) ……………………………………………………… (e) ……………………………………………………….. (d) ……………………………………………………… (e) ……………………………………………………….. Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 33. Therefore, it is evident that although Magistrate has sentenced the petitioner to undergo R. I. for a period of two (2) years and to pay compensation of Rs.7,00,000/- to the complainant-opposite party no. 2. However, the learned Appellate Court below without issuing any notice to the petitioner for making recovery of Rs.7,00,000/- from the movable or immovable property of the applicant, which is per se illegal and the learned Appellate Court has further committed illegality by directing the petitioner to undergo S.I. for a period of one and half (1 ½) years apart from realization of the compensation amount from his movable or immovable property and which is in complete violation of Section 30 of the Cr.PC and Section 386 of the Cr.PC also. 34. On the facts and in the circumstances mentioned above, the impugned judgment dated 02.12.2016 passed by the learned Sessions Judge, Lohardaga in Criminal Appeal No.21 of 2016 and the impugned judgment of conviction and order of sentence dated 05.02.2016 passed by Sri Shekhar Kumar, Judicial Magistrate, 1st Class, Lohardaga in connection with Complaint Case No.201/2012 by which the petitioner has been convicted for the offence under Section 138 of the N.I. Act and has been sentenced to undergo Rigorous Imprisonment for a period of (02) two years and to pay a compensation amount of Rs.7,00,000/- to the complainant are set aside and the petitioner namely Mukteshwar Prasad is acquitted for the offence under Section 138 of the N. I. Act and the petitioner is also discharged from the liability of his bail bonds. 35. Accordingly, this Criminal Revision Application No.289 of 2017 is allowed.