IMPORTANT POINT
Appeals from convictions – In an appeal against conviction, nature of sentence can be altered but it cannot be enhanced.

ORDER :

Dr. G. Radha Rani, J.—This criminal revision case is preferred by the petitioner/appellant/accused aggrieved by the judgment dated 30-6-2015 in Crl.A. No.55 of 2012 on the file of the Additional Metropolitan Sessions Judge for trial of Communal Offence Cases cum VII Additional Metropolitan Sessions Judge, Hyderabad, questioning the enhancement of sentence i.e. raising the fine amount of Rs.10,000/- to Rs.9,00,000/- in default to suffer Simple Imprisonment for 3 months.

2. The case of the revision petitioner - accused in brief was that the 1st respondent filed a private complaint against him for the offence under Section 138 of the Negotiable Instruments Act (for short ‘NI Act’) alleging that the accused approached the complainant for a hand loan of Rs.9,00,000/- on 15-12-2007 and the complainant advanced the said amount, the accused executed an undertaking letter promising to repay the money within 3 months, but failed to repay the said amount and dodged the matter on one pretext or other. On repeated demands the accused issued a cheque bearing no 186962 dated 25-11-2009 for Rs.9,00,000/- drawn on Dena Bank, Saroor Nagar branch, Hyderabad towards discharge of legally enforceable debt. The cheque was returned unpaid with a memo for the reason of “funds insufficient” in the account of accused. Thereafter, the complainant issued statutory notices and filed the complaint under Section 138 of the NI Act. After recording the sworn statement of the complainant, the VIII Additional Chief Metropolitan Magistrate, Hyderabad took cognizance of the case and issued process. Subsequently, the case was transferred to the XV Additional Judge cum XIX Additional Chief Metropolitan Magistrate, Hyderabad, numbered as CC No. 134 of 2011 and tried by him. After considering the evidence on record, the trial court convicted the accused and sentenced him to undergo Simple Imprisonment for a period of one year and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo Simple Imprisonment for three (3) months for the offence under Section 138 of the NI Act. Challenging the conviction, after payment of fine amount, the accused preferred the appeal under Section 374 Cr.P.C. The same was decided by the Additional Metropolitan Sessions Judge for trial of Communal Offence Cases cum VII Additional Metropolitan Sessions Judge, Hyderabad, vide Crl.A. No.55 of 2012. The learned Judge dismissed the appeal confirming the judgment of the XIX Additional Chief Metropolitan Magistrate, Hyderabad, but modified the sentence, enhancing the fine amount from Rs.10,000/- to Rs.9,00,000/-, in default to suffer Simple Imprisonment for three (3) months, while maintaining the sentence of Simple Imprisonment for a period of one year. Out of the fine amount collected, awarded Rs.8,95,000/- to the complainant towards compensation under Section 357 Cr.P.C.

3. Aggrieved by the enhancement of fine amount, the petitioner/ accused preferred this revision contending that in the appeal preferred by the accused against the conviction, sentence could not be enhanced as per the provision under Section 386(b)(iii) Cr.P.C. The enhancement of fine and default imprisonment imposed by the learned Sessions Judge was against the law and procedure and it was liable to be set aside. The imposition of fine apart from awarding imprisonment was under the discretionary power of the court. Order to pay compensation was not mandatory. The word used under Section 357 Cr.P.C. was “may”, therefore there was no defect and illegality in the procedure followed by the trial court. Both the courts failed to consider the probabilities of financial capacity of the complainant to lend the amount. Both the courts failed to examine the pending civil dispute in O.S.No.1231 of 2008 filed under Specific Relief Act for the alleged amount of Rs.9,00,000/- lent to the accused. No prudent man would believe that a huge amount in lakhs of rupees was lent to a person as hand loan without any document a