TaxTMI 
TaxTMI 
2022 (6) TMI 1033
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.... sentenced him to undergo one year S.I. and to pay fine of Rs. 5,000/- in default one month S.I. 5. Aggrieved by that, the accused preferred appeal before the III Additional District and Sessions Court, Gopichettipalayam. 6. The Appellate Court, after re-appreciation of evidence confirmed the findings of the Trial Court and dismissed the appeal. While dismissing the appeal, the Trial Court in addition awarded compensation of Rs. 9,00,000/- being the value of the cheque amount. 7. Aggrieved by the concurrent findings of the Courts below, the present revision is filed on the ground that, the Courts below failed to take note of the fact that the statutory notice was not served to the accused. The Courts below failed to take note of the fact that the complainant, in his chief examination has stated that, Rs. 9,00,000/- was borrowed by the revision petitioner on 09.04.2007. Whereas, the cheque is dated much prior to the said date i.e., 02.05.2007. This sole fact destroy the entire case of the complainant. The said discrepancy cannot be reconciled by any other evidence. Therefore, when the transaction itself is much later to the date of cheque, the Courts below ought to have believed ....
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....hatically argue that, the petitioner herein who is a practising Advocate has abused the process of law by initiating criminal complaint under Section 138 of Negotiable Instruments Act, 1881, even without proper service of the statutory notice. Apart from lack of privity of contract, there is no evidence to prove that the cheque was issued for discharge of legally enforceable debt. For non-serving of statutory notice, the judgment of the Courts below is liable to be set aside. 12. Particularly, the Learned Counsel appearing for the petitioner submitted that the complainant having failed to prove his wherewithal and the manner in which the alleged Rs. 9,00,000/- paid, cannot sustain his complaint. Though the complainant has not preferred any appeal for enhancement of sentence, the Appellate Court, while confirming the Trial Court judgment, had in addition awarded compensation which tantamounts to enhancement of punishment which is contrary to law. Thus, the order of the Courts below bristles with non-application of mind and malafide. 13. In rebuttal, the Learned Counsel appearing for the respondent/complainant further submit that, the complainant has proved his wherewithal by produ....
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....e was denied and questioned by the petitioner/accused, he summoned P.W.2/Ranganathan, Postal Inspector and examined him. Based on the records, P.W.2 has spoken about the delivery of the notice to the accused on 30.05.2007. 18. Regarding wherewithal to advance Rs. 9,00,000/-, the evidence of the complainant accepted by the Courts below that, he had withdrawn Rs. 5,00,000/- from the bank account shortly before advancing loan to the petitioner and from the savings of his wife Rs. 4,00,000/- was paid to the petitioner. Though doubt raised by the Learned Counsel for the petitioner regarding this portion of evidence, the Courts below, on facts have held that, the petitioner had wherewithal to advance loan of Rs. 9,00,000/-. 19. The Learned Counsel appearing for the petitioner would rely upon the defence document, particularly Ex.D.8 dated 14.07.1999 entered between the petitioner/accused as a power agent of one Subbanna Gounder and Nagarajan S/o. Vadivel contended that, this cheque was issued by the petitioner/accused only to Nagarajan, in connection with the transaction referred in Ex.D.8. 20. The Courts below have rejected the said defence since there is no corroborative evidence to....
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.... of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (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. Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 25. Thus, the Act provides for imposing fine to an extend of twice the cheque amount. The compensation can be paid from out of the fine by applying Section 357 of the Cr.P.C., which reads as below:- "357. Order to pay compensation.-- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civ....
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....ising its power under Section 357(4) of Cr.P.C., ordered compensation without altering the nature or extent of sentence while exercising the power under Section 357(4) of Cr.P.C., the appellate Court has failed to take note of its limits particularly Section 386(b)(iii) of Cr.P.C. which reads as under:- 386. Powers of the Appellate Court:- (b). in an appeal from a conviction- (i) ...... (ii) ..... (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. 28. In this case, the Appellate Court despite bar to enhance the sentence, had imposed compensation of Rs. 9,00,000/- without altering the nature or the extent of the sentence. This part of the appellate Court order is beyond its power and therefore perverse. 29. The Learned Counsel appearing for the respondent 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 submitted that the Hon'ble Supreme Court has held, in an appeal preferred by the accused compensation can also be ordered while confirming the conviction. He further submitted ....