THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1467 of 2005 Date:20.01.2014 Between:
V. Kameshwar Rao . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1467 of 2005 JUDGMENT:
This revision is preferred against judgment of II Additional Metropolitan Sessions Judge, Hydeabad dated 12-07-2005 passed in Crl.A.No.401 of 2003, whereunder the appellate Court modified the sentence imposed against the revision petitioner in C.C.No.837 of 2007 by judgment dated 07-10-2003.
2. The brief facts leading to filing of this revision are as follows:-
The revision petitioner herein filed complaint for the offence under Section 138 of Negotiable Instruments Act (herein after referred to as ‘138 of N.I Act’) against the revision petitioner alleging that revision petitioner and 1st respondent herein are working in Administrative Staff College of India and that 1st respondent approached revision petitioner for a hand loan of Rs.70,000/-. Accordingly, the revision petitioner advanced Rs.70,000/- on 14-10-2000. Subsequently, on the demand made by the revision petitioner, 1st respondent herein issued cheque for Rs.3,000/- bearing No.704849, dated 22-08-2000, cheque for Rs.17,000/- bearing No.572466, dated 24-08-2000, cheque for Rs.25,000/- bearing No.873851, dated 24-08-2000 and cheque for Rs.25,000/- bearing No.853852, dated 24-08-2000 drawn on State Bank of India, Bellavista Branch, Hyderabad towards discharge of the hand loan amount and those cheques were dishonoured on the ground of insufficient funds. Thereafter, the revision petitioner got issued notice dated 21-09-2000 but 1st respondent failed to repay the amount as demanded under statutory notice and failed to reply to the said notice, therefore he filed a private complaint. Learned trial Judge took the complaint on file and during trial, examined the complaint as P.W.1 and marked Exs.P1 to P10 and examined accused as D.W.1. On a over all consideration of evidence of both sides, the trial Judge found the 1st respondent herein guilty for the offence under Section 138 of N.I.Act and convicted him and sentenced to suffer one year imprisonment with a compensation of Rs.70,000/-. Aggrieved by the conviction and sentence, 1st respondent herein preferred Crl.A.No.401 of 2003 to the Metropolitan Sessions Court, Hyderabad and II Additional Metropolitan Sessions Judge, confirmed the conviction, but modified the sentence by setting aside the sentence of one year imprisonment but confirmed compensation of Rs.70,000/-. Now aggrieved by the judgment of the appellate Court, complainant preferred the present revision.
3. Heard both sides.
4. The main contention of the advocate for revision petitioner is that awarding compensation under Section 357 Cr.P.C is only in addition to the punishment and having found the 1st respondent herein guilty for the offence under Section 138 of N.I Act leaving him without awarding any punishment is incorrect and illegal. As per the amended provision of Section 138 of N.I.Act, the offence of dishonour of cheque is punishable with imprisonment for a term, which may extend to one year or with fine which may extend to twice the cheque amount or with both. Here the trial Court imposed one year imprisonment besides awarding compensation of Rs.70,000/- under Section 357 Cr.P.C. As rightly pointed out by the learned Advocate for revision petitioner, compensation under Section 357 Cr.P.C is not a punishment and it is only in addition to the punishment prescribed under law. There is distinction between granting of compensation and punishing the guilt. Learned Sessions Judge, while confirming the conviction, ordered for modification of sentence and in the process, the sentence of imprisonment of one year is set aside confirming the compensation resulting without awarding any punishment for the offence under Section 138 of N.I Act.
This part of order of learned appellate Judge is definitely illegal and incorrect, because when 1st respondent is found guilty for the offence under Section 138 of N.I Act leaving him without any punishment is definitely a great error. Admittedly, no appeal is preferred by the 1st respondent herein against the conviction. Therefore, the order of the appellate Court to the extent of modification of sentence is liable to be set aside.
5. Now the contention of the Advocate for revision petitioner is that the sentence of imprisonment awarded by the trial Court has to be restored, but as per the sentencing process, the accused has to be heard on quantum of sentence, therefore, it is not proper for this Court to restore the sentence imposed by the trial Court without hearing the accused.
So considering the facts of the case and nature of offence, I feel that the matter has to be remitted back to the appellate Court for passing appropriate order on sentence without touching the conviction and compensation granted.
6. For the reasons stated above, revision is disposed of and the order of the appellate Court to the extent of modifying the sentence is set aside and the matter is remitted back to the appellate Court with a direction to pass appropriate order on sentence, after hearing both sides, without touching conviction and compensation awarded.
7. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand disposed of.
JUSTICE S. RAVI KUMAR
Date:20.01.2014
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