TaxTMI 
TaxTMI 
2021 (3) TMI 285
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....efault of payment of compensation amount, as also fine of Rs. 10,000/- for each four counts. 2. The brief facts giving rise to the present revision, are that, the applicant No.2, which is a private limited company, deals in the business of production and selling of milk powder and other products and the applicant No.1 Gopal Sharma is the Director of that company. The respondent is a firm, which deals in the business of sell and purchase of Medicines, Dairy products, Milk, Milk powder, Ghee and other products. The respondent firm placed an order to the applicants for supplying 50 Metric Tonnes Milk Powder. The applicant company agreed to supply milk powder and received Rs. 80 Lacs in advance for that transaction but, the applicant company neither supplied the milk powder nor returned the money. When the respondent pressurized the applicant for returning the money, the applicant provided four cheques of Rs. 10 Lacs each. When those cheques were presented in the bank for encashment, the same were dishonoured and the bank returned those cheques with an endorsement that sufficient funds are not available in the account of the applicants. Thereafter, the respondent contacted the applica....
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....t set aside the sentence passed by the appellate Court and remitted the matter back to the appellate Court with a direction to reconsider the order of sentence after giving an opportunity of hearing to both the parties. Thus, the criminal appeal No.2700046/2016 was restored to its original number and after hearing arguments of both the parties, learned appellate Court reconsidered the order of sentence and again delivered a judgment on 18.2.2020, whereby the applicant No.1 was sentenced to undergo Rigorous Imprisonment for 1 year (Four counts for each cheque of Rs. 10 Lacs), all imprisonments to run concurrently, and also affirmed the compensation amount of Rs. 53,76,000/-, with default stipulation. In addition, learned appellate Court also imposed fine of Rs. 10,000/- for each four counts, as imposed by the appellate Court in its previous judgment. 6. The applicant being aggrieved by the order of appellate Court dated 18.2.2020 preferred this revision on the ground that learned trial Court did not consider the provisions of Section 138 of NI Act in proper perspective. It is a compensatory aspect rather than preventive. Nature of offence is of civil nature. 7. Having heard the le....
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....ncement: 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" 8. The appellate Court while dealing with the appeal filed being aggrieved by the conviction and sentence passed against any accused, cannot enhance the sentence passed by the trial Court until respondent files an appeal for enhancement of sentence. In the present matter, the respondent has not preferred any appeal for enhancement of punishment but has filed an appeal only for calculating the compensation @ 16% instead of 9%, as calculated by the trial Court and that appeal was dismissed by the appellate Court. In such circumstances, this Court finds that learned appellate Court has committed an apparent error while imposing additional fine of Rs. 10,000/- for each four counts. Hence, this revision deserves to be allowed on this point and sentence of fine of Rs. 10,000/- for each four counts, as imposed by the appellate Court deserves to be set aside. 9. Learned Senior Counsel appearing for the applicant submits that offence ....
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....c interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions." 12. Hon'ble the Apex Court in the case of Kaushyalya Devi Massand Vs. Roopkishore Khore, (2011) 4 SCC 593, in para 11 has held has under:- "11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones." 13. Hon'ble the Apex Court in the case of Meters and Instruments Private Limited and another Vs. Kanchan Mehta, (2018) 1 SCC 560, in para 18.5 has held has under:- "18.5 Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence....