TMI Blog2022 (6) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Court to enhance the sentence ordering compensation in the absence of appeal by the complainant. The compensation is not an independent component under Section 138 of Negotiable Instruments Act which is a special Act. It should be part of the fine amount and fine is part of sentence. It is a trite principle of law that, in appeal preferred by the accused person sentence cannot be enhanced. Therefore, the order of the Appellate Court perverse, contrary to law, hence liable to be set aside. The Bail bond stands cancelled. The petitioner is directed to surrender before the trial Court to undergo the remaining period of sentence as modified - the Criminal Revision is partly allowed. - Criminal Revision Case No. 594 of 2017 - - - Dated:- 16-6-2022 - THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN For the Appellant : D. Selvaraju for C. S. Saravanan For the Respondents : Ma. P. Thangavel ORDER The revision petition is filed against the concurrent findings of the Courts below. The subject matter of the revision is the cheque dated 09.04.2007 issued for Rs. 9,00,000/- by the revision petitioner, in favour of the respondent. According to the respondent, the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent/complainant. The petitioner herein had earlier transaction only with one S. Nagarajan, colleague of the respondent/complainant. The respondent had no wherewithal to advance loan of Rs. 9,00,000/-. His bank transaction as spoken by D.W.1 would clearly indicate that, at relevant point of time, the respondent/complainant never had cash balance exceeding Rs. 5,00,000/-. 9. The subject cheque was given to Nagarajan in respect of property, which he was holding the power of attorney. During the course of the said transaction, the blank cheque given to S. Nagarajan has been misused by his friend Natarajan/the complainant and same has been presented, filling the amount as Rs. 9,00,000/-. The petitioner has proved that, the complainant had no wherewithal to advance loan of Rs. 9,00,000/- and the complainant has failed to prove how Rs. 9,00,000/- was given to the petitioner herein. Hence, the Courts below ought to have dismissed the complaint. 10. The two cheques obtained from the petitioner herein by Nagarajan has been handed over to Natarajan. He, in-turn has filled up one blank cheque in his name for Rs. 9,00,000/- was presented and the complaint in C.C. No. 214 of 2007 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Though, the statutory notice was returned with endorsement not claimed , the petitioner had received the summons from the Court and appeared before the Court to contest the case. He cannot take advantage of his own fault for not collecting the statutory notice and take a defence that, statutory notice not served on him. 14. Regarding the enhanced punishment of awarding compensation, the Learned Counsel for the respondent would rely upon the judgment of the Hon'ble Supreme Court in Kalamani Tex and another -v- P. Balasubramanian reported in (2021) 5 SCC 283 and submit that, the Appellate Court can award compensation in a case arising under Section 138 of Negotiable Instruments Act, even if the complainant has not filed any appeal for enhancement of punishment or compensation. 15. Heard the Learned Counsel for the petitioner and the Learned Counsel for the respondent. Records perused. 16. The specific case of the complainant is that the petitioner herein running business in the name and style of M/s. Karrthekai Trading Company. To met out his business expenses, on 09.04.2007, he borrowed Rs. 9,00,000/- from the complainant. Promising him that, the said money will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to award and the complainant had not preferred any appeal seeking compensation? 23. Though Negotiable Instrument Act empowers the Court in case the accused found guilty to award compensation twice the amount of the cheque. When the trial Court has consciously not awarded compensation in lieu of fine and consciously imposed fine of Rs. 5,000/- only and one year S.I. Awarding compensation in the appeal filed by the accused will tantamount to enhancement of punishment. 24. Section 138 of Negotiable Instruments Act, 1881, reads as below:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 5,000/- in default one month simple imprisonment. 31. On Appeal filed by the accused, the Appellate Court confirmed the sentence of one year simple imprisonment and fine of Rs. 5,000/-. In addition ordered compensation of Rs. 9,00,000/- being the cheque amount. 32. Kalamani Tex and another cited supra is an appeal by the accused, the Hon'ble Supreme Court while considering the plea of the respondent seeking compensation had categorically held that, by not preferring appeal, the claim of compensation stands impliedly overturned. However, in the said case, since the accused has already deposited the cheque amount, the Hon'ble Supreme Court has concluded that, in the peculiar facts and circumstances of the case, since the accused/appellant has voluntarily deposited the cheque amount. Pending appeal, take a lenient view altering the order of the High Court, sentencing him to undergo three months simple imprisonment and fine of Rs. 5,000/-. It modified the order of the High Court and directed the appellant shall not required to undergo the awarded sentence since the cheque amount deposited and same is treated as compensation. 33. Examine the wordings of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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