HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.343 OF 2003 ORDER: This revision is directed against the judgment dated 20-11-2001 in Criminal Appeal No.18 of 2000 on the file of the First Additional Sessions Judge, Visakhapatnam, whereby the learned Sessions Judge while setting aside the sentence of imprisonment of one year imposed against the respondents 1 and 2 herein by the trial Court, confirmed the fine amount and compensation amount. 2. The brief facts are that there are money transactions between the parties and when a cheque dated 01-02-1998 was issued for an amount of Rs.6,50,000/- and when it was bounced, the petitioner after following the procedure under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) filed a private complaint under Section 138 of the NI Act. The learned Magistrate took cognizance of the same and numbered it as C.C. No.304 of 1998. 3. During the course of trial, the complainant was examined as PW-4 and four more witnesses were examined on her behalf and Exs.P-1 to P-11 were marked. The respondents 1 and 2 have not chosen to adduce any oral or documentary evidence. 4. The trial Court having analyzed the entire evidence, came to the conclusion that the said cheque was issued without properly arranging for funds and for that reason the said cheque was bounced and therefore, held that the said cheque was issued in lieu of a legally enforceable debt. In the light of the said finding, the trial Court found the respondents 1 and 2 guilty of the offence punishable under Section 138 of the NI Act and sentenced them to undergo simple imprisonment for a period of one year each and also to pay a fine of Rs.2,000/- each. Further, the trial Court awarded an amount of Rs.6,50,000/- towards compensation as provided for under Section 357(3) Cr.P.C., in default, to suffer simple imprisonment for a period of three months. The said judgment was pronounced on 07-02-2000. Respondents 1 and 2 questioned the said judgment by filing Criminal Appeal No.18 of 2000 and the learned Additional Sessions Judge by judgment dated 20-11- 2000 while concurring with the said finding of the trial Court that the respondents are guilty of the offence punishable under Section 138 of the NI Act, took a lenient view in setting aside the sentence of imprisonment against the respondents 1 and 2, however, confirmed the fine amount and the compensation amount. While confirming the amount of compensation, the learned Additional Sessions Judge, reduced it from Rs.6,50,000/- to Rs.5,50,000/- with default clause. The same is questioned by the complainant by filing this revision. 5. As the notices are not served on the respondents, this Court directed the learned counsel for the petitioner Sri Ravi Shankar Jandhyala to take out substitute service and in the light of the said direction, the learned counsel got published the notice in Enadu Telugu Daily Newspaper of Visakhapatnam Edition dated 25-08-2010 and also produced the same in the Court. Even after publication of the said notice in the Newspaper, there is no appearance of the respondents 1 and 2. Heard the learned counsel for the petitioner. 6. According to the learned counsel for the petitioner, the lower appellate Court has misunderstood the object behind Section 138 of the NI Act and in a case of this nature, the lower appellate Court ought not have set aside the said conviction imposed by the trial Court. According to him, if the amount of compensation, which has been awarded by the lower appellate Court is paid, the petitioner would not have had any grievance. But, the said amount of compensation was not paid and even if the respondents are taken into custody, the sentence as per the trail Court is only three months. According to him, the cheque amount is Rs.6,50,000/- and the lower appellate Court has reduced the same to Rs.5,50,000/-, in default, simple imprisonment for a period of three months is imposed, which cannot be adequate to meet the ends of justice. In this context, the learned counsel has drawn my attention to various judgments of the Apex Court. 7. This Court is totally in agreement with the submissions made by the learned counsel for the petitioner. In my considered view, the trial Court has rightly found the respondents guilty of the offence punishable under Section 138 of the NI Act and properly convicted them to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.2,000/- and compensation of Rs.6,50,000/-, in default, to undergo simple imprisonment for a period of three months. The lower appellate Court, in my considered view, ought not to have set aside the said conviction. If the respondents 1 and 2 paid the said amount of compensation, it may be proper for the lower appellate Court to take a lenient view and set aside the sentence of imprisonment imposed by the trial court. It is a case where the respondents 1 and 2 have not come forward to pay the compensation amount and the lower appeal Court ought not to have passed the judgment setting aside the conviction and confirming the fine amount. As it is the contention of the learned counsel for the petitioner that the said cheque amount also has not been paid, in my considered view, this matter requires remand to the lower appellate Court for imposition of proper sentence. 8. Accordingly, the Criminal Revision Case is allowed and the matter is remanded to the lower appellate Court for fresh disposal in accordance with law. It is made clear that the lower appellate Court shall not go into the merits once again, and it shall restrict itself only to imposition of sentence. ________________________ GOPALA KRISHNA TAMADA, J September 23, 2010. KTL