ORDER:

This criminal revision case is preferred by the petitioner/

respondent/accused aggrieved by the order dated 30-6-2015 in Criminal Revision Petition No.446 of 2012 on the file of the Additional Metropolitan Sessions Judge for trial of Communal Offence Cases cum VII Additional Metropolitan Sessions Judge, Hyderabad, in enhancing the sentence i.e. raising the fine amount from Rs.10,000/- to Rs.9,00,000/- and 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 notice 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 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 an appeal under Section 374 Cr.P.C. The 1st respondent/ complainant filed a revision petition vide Crl.R.C. No.466 of 2012 questioning the inadequacy of the sentence. The learned Additional Metropolitan Sessions Judge dismissed the appeal and allowed the revision by enhancing the fine amount from Rs.10,000/- to Rs.9,00,000/-, in default to suffer simple imprisonment for three months while maintaining the Simple Imprisonment for a period of one year. Out of the fine amount collected, awarded Rs.8,90,000/- 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 case contending that the learned Sessions Judge failed to examine that the revision filed by the complainant for enhancement of sentence and fine was improper and was not maintainable procedurally. The proper procedure was to file an appeal under Section 382 read with 372 proviso and the appellate Court was empowered to deal with the appeal under Section 386 (c) Cr.P.C., the Session Judge erred in enhancing the fine/compensation and imposing default sentence. The Session Judge failed to consider that under NI Act, there was no mandatory provision to award compensation to the complainant or to pay compensation from the collected fine amount, the Sessions Judge failed to examine the language of Section 357 Cr.P.C. that imposition of fine apart from the punishment of imprisonment was in the discretion of the Court and the order for payment of whole and part of fine recovered was also in the discretion of the Court. As the order to pay compensation was not mandatory, the word “may” was used. Therefore, there was no defect or illegality procedurally in the judgment of the trial Court. The learned Sessions Judge erred in interfering with the discretionary power of the tri