JUDGMENT

Vibha Kankanwadi, J. (Oral) - Present revision has been filed by the original complainant by invoking the power of this Court under section 401 of Code of Criminal Procedure, 1973 in order to challenge the judgment and order passed by Additional Sessions Judge, Osmanabad in Criminal Appeal No. 57 of 2013; whereby the sentence awarded to the respondent for the offence punishable under section 138 of Negotiable Instruments Act came to be modified.

2. Present revision applicant is the original complainant, who had filed complaint bearing S. C. C. No. 394 of 2009 against the present respondent alleging that he has committed offence punishable under Section 138 of N. I. Act. It is necessary to have a glance at the allegations in the original complaint, at this stage, in order to appreciate further facts. Complainant had come with a case that he was knowing accused since long and had friendly relations with him. Accused was in need of money and therefore requested complainant on 15-08-2006 to extend hand loan of Rs. 70,000/-. Complainant agreed and issued cheque in favour of accused on 17- 08-2006. Accused had encashed the said cheque and assured to return the amount within one month. When complainant asked for the refund of the amount after the stipulated period, accused took certain time; but ultimately issued cheque for Rs. 70,000/- bearing No. 512801 drawn on State Bank Of Hydrabad on 22-07-2009. When complainant had deposited the said cheque in his Bank for encashment, it was dishonourned on the ground ''Funds Insufficient''. Complainant issued legal notice on 03-08-2009 and demanded the amount under the cheque. The said notice was received by the accused, but he did not comply with the same. Hence, he filed the complaint.

3. After the complaint was filed, verification was recorded by learned Judicial Magistrate First Class, Kalamb. Plea of the accused was recorded; wherein he pleaded not guilty. Trial has been conducted. Statement of the accused under section 313 of Code of Criminal Procedure, 1973 has been recorded. After hearing both sides, the learned Magistrate has convicted the accused after holding him guilty of the said offence. Accused was sentenced to undergo simple imprisonment for 4 months and pay fine of Rs. 3,000/-i/d. to suffer S. I. for 15 days.

4. Accused had challenged the said conviction in Criminal Appeal bearing No. 57 of 2013. After hearing both sides, learned Additional Sessions Judge, Osmanabad allowed the same on 29-06- 2016. It is to be noted that Appellate Court had confirmed the finding of the learned Magistrate of holding accused guilty, but modified the sentence. Appellate Court had set aside the conviction of the accused as was awarded by Magistrate and instead of the same it was altered to ''till rising of the Court with confirmation of fine''. This alteration or modification has been challenged by the original complainant in this revision.

5. Heard learned Advocate Shri. S. Y. Jantre for the revision applicant/original complainant and learned Advocate Shri. A. B. Tele for revision respondent No. 2. Learned APP has represented revision respondent No. 1, who is a formal party. Matter was taken up for final hearing with consent of both the parties.

6. It has been vehemently submitted on behalf of complainant that the alteration in the sentence by the first appellate court is illegal and unnecessary exercise of leniency. When the learned appellate Court was confirming the finding about guilt of the accused, then the sentence that was awarded also ought to have been confirmed. There were no circumstances before the first appellate Court to alter the sentence. He relied on the decision in M/s. Nagpal Traders vs. Davinder Singh reported in 2015 ALL MR (Cri) 1630 (S.C.) and H. Pukhraj vs. D. Parasmal reported in 2015 ALL MR (Cri) 1627 (S.C.) in order to support his submissions.

7. Per contra, it has been submitted on behalf of respondent No. 2 that even the trial Court had not allowed compensati