The main legal point established is that the Appellate Court cannot enhance the sentence by ordering compensation in the absence of an appeal by the complainant.

JUDGMENT

(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to set aside the judgment and conviction dated 24.03.2017 made in C.A.No.30 of 2016 on the file of the III Additional District and Sessions Court, Gobichettipalayam confirming the judgment dated 28.01.2016 made in C.C.No.411 of 2007 on the file of Judicial Magistrate No.I, Gobi.)

1. The revision petition is filed against the concurrent findings of the Courts below. The subject matter of the revision is the cheque dated 26.07.2007 issued for Rs.6,00,000/- by the revision petitioner, in favour of the respondent. According to the respondent, the cheque was given by the revision petitioner to discharge the loan. On presentation, the cheques was returned for “insufficiency of fund”, hence after serving statutory notice, a complaint filed under Section 138 of Negotiable Instruments Act, 1881.

2. To prove the case, the complainant/A.R.Sundar (P.W.1) and Ranganathan (P.W.2), Postal Inspector were examined. In support of the complainant, 6 exhibits were marked.

3. On behalf of the petitioner/accused, two witnesses were examined and 9 exhibits were marked.

4. The Trial Court held the accused guilty and 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.6,00,000/- being the value of the cheque amount.

7. Aggrieved by the concurrent findings of the Courts below, the present revision petition 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.6,00,000/- was borrowed by the revision petitioner on 27.05.2007. Whereas, the cheque is dated much prior to the said date i.e., 26.07.2007. 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 the version of the accused that the complainant herein has misused the cheques given by the petitioner to one S.Nagarajan, Advocate who is the colleague of Natarajan Advocate, having joint office. The said Natarajan is the brother-in-law of this complainant. Nagarajan through this complainant and through his colleague Natarajan and his brother-in-law A.R.Sundar had filled up the two blank cheques to defraud the accused. The self contradictions of the complainant P.W.1, in his evidence, regarding filling up of blank cheque will prove that cheque was not issued to him for any legally enforceable debt. But, the unfilled cheque handed over to the colleague of the petitioner, filled and misused to extract money.

8. The Learned counsel appearing for the petitioner/accused submit that, there is no privity of contract between petitioner/accused and respondent/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.6,00,000/-.

9. The subject cheque was given to one 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 Nagarajan has been misused his friend A.R.Sundar/the complainant. The blank cheque given to Nagarajan filled up and presented for Rs.6,00,000/-. The complainant has failed to prove how Rs.6,00,000/- was given to the petitioner herein. Hence, the Courts below ought to have dismissed the complaint.

10. The Learned Counsel for the petitioner/accused contended that the