IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.586 OF 2013
BETWEEN:
M.G. Raju
S/o Late Madhvanda Rao,
Aged about 54 years,
Senior Technician,
C/o INSAT, M.E.F.,
HASSAN - 573 201. :PETITIONER
(By Sri Chethan B, Advocate)
AND:
H.T. Ravindra Kumar
S/o Thimmappa,
Aged about 45 years,
Resident of Vedio Palace,
Saraswathipuram,
Salagame Road,
Hassan - 573 201. :RESPONDENT
(Respondent is served)
This Criminal Revision Petition is filed under Section
397 read with S.401 of Cr.P.C. praying to set aside the
Judgment dated 16.10.2012 passed by the II Additional
Crl.R.P.No.586/2013
2
Civil Judge and JMFC at Hassan in C.C. No.1131/2000 and
the Judgment dated 19.03.2013 passed by the Addl.
Sessions Judge and P.O., FTC - I at Hassan in Crl. A.
No.154/2012 and such other order as the Court deems fit
in the circumstances of the case.
This Criminal Revision Petition coming on for
Admission through Physical Hearing/Video Conferencing
this day, the Court made the following:
ORDER
Present revision petition is by the accused who was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, hereinafter referred to as 'the N.I. Act'), by the learned II Addl. Civil Judge & JMFC, Hassan in C.C. No.1131/2000 by its impugned Judgment of conviction and Order on sentence dated 16.10.2012. He preferred an appeal challenging his conviction, in Criminal Appeal No.154/2012 in the Court of learned Additional Sessions Judge and the Presiding Officer, Fast Track Court - I at Crl.R.P.No.586/2013 3 Hassan (for brevity, 'Sessions Judge's Court') which Court by its impugned Judgment dated 19.03.2013 dismissed the appeal confirming the Judgment passed by the Trial Court in C.C. No.1131/2000 dated 16.10.2012. Aggrieved by the same, the accused has preferred the present revision petition.
2. The present respondent has been the complainant in the Trial Court. The summary of the case of the complainant in the Trial Court is that the accused being known to him had availed a loan of `18,000/- from him on 03.02.1996 to meet the expenses of his sister's marriage. Though he had agreed to repay the loan amount within eight months, but he did not repay the said loan. However, towards the repayment of the loan, he issued a cheque to the complainant, bearing No.755481 dated 05.10.1996 drawn on State Bank of India, Hassan Branch. When the said cheque was presented by the complainant through his banker, the same came to be returned with the banker's endorsement "payment stopped by drawer".
Crl.R.P.No.586/2013 4 It was thereafter the complainant got issued a legal notice to the accused on 16.10.1996 demanding the payment of the cheque amount. Even after the said legal notice, the accused did not pay the cheque amount. Hence, the complainant was constrained to institute the complaint against him.
The accused appeared in the Trial Court and contested the matter. After recording the evidence led by both side and hearing the arguments, the Trial Court by its Judgment dated 16.10.2012 convicted the accused for the alleged offence punishable under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of `21,000/-. In default to make payment of the fine amount, the accused was ordered to undergo simple imprisonment for a period of six months. Out of the fine amount of `21,000/-, a sum of `18,000/- was directed to be paid to the complainant and remaining sum of `3,000/- was directed to be paid to the State. Challenging the said Judgment of conviction and Crl.R.P.No.586/2013 5 Order on sentence, the petitioner preferred Crl.A. No.154/2012 in the Sessions Judge's Court which Court by its Judgment dated 19.03.2013, dismissed the appeal while confirming the Judgment of conviction and Order on sentence passed by the Trial Court. It is against the said Judgments of conviction and Order on sentence the accused has preferred the present revision petition.
3. In spite of service of notice upon the respondent, he has remained unrepresented.
4. Learned counsel for the petitioner in his single sentence argument submitted that he would not challenge the impugned Judgment of conviction passed by the Trial Court which was affirmed by the Appellate Court, however, he would only request this Court to take a lenient view on the order on sentence. He further submits that the petitioner / accused is ready to pay the entire fine amount, but however, the sentence of imprisonment may be set aside. In his support, he relies upon a Judgment of the Crl.R.P.No.586/2013 6 Hon'ble Apex Court in METERS AND INSTRUMENTS PRIVATE LIMITED AND ANOTHER Vs. KANCHAN MEHTA, reported in (2018) 1 SCC 560 and draws the attention of this Court to paragraph 11 of the said Judgment.
5. In view of the above submission, though the matter is listed for admission, it is heard for final disposal. Perused the materials placed before this Court including the impugned Judgment passed by both the Trial Court and Sessions Judge's Court.
6. In view of the fact that the petitioner through his counsel has submitted that he would not dispute or challenge his conviction for the offence punishable under Section 138 of the N.I. Act but would only request this Court to take a lenient view so far as the sentence of imprisonment is concerned, it is not required to go into the merits of the case so far as conviction of the petitioner for the offence under Section 138 of the N.I. Act is concerned. Since the revision petitioner himself now confines the present petition only in challenging the sentence of Crl.R.P.No.586/2013 7 imprisonment but not his conviction for the offence punishable under Section 138 of the N.I. Act as well the order of sentence to pay a fine amount of `21,000/-, it is taken that the said aspect of Judgment of conviction and Order on sentence imposing a fine of `21,000/- be need not revisited or revised.
7. The contention of the learned counsel for the petitioner is that since the petitioner / accused is ready and willing to pay the entire fine amount without any further delay, the Court may take a lenient view in the matter. He relies upon KANCHAN MEHTA's case (supra) in his support and draws the attention of the Court to paragraph 11 of the said Judgment which reads as below:
" 11. While it is true that in Subramanium Sethuraman versus State of Maharashtra [(2004) 13 SCC 324] this Court observed that once the plea of the accused is recorded under Section 252 of the CrPC, the procedure contemplated under Chapter XX of the CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to Crl.R.P.No.586/2013 8 the 2002 amendment. The statutory scheme post-
2002 amendment as considered in Mandvi Coop. Bank [(2010) 3 SCC 83] and J.V. Baharuni [ (2014) 10 SCC 494] has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 CrPC which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the CrPC are applicable "so far as may Crl.R.P.No.586/2013 9 be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context."
8. A reading of the said Judgment more particularly the paragraph 11 therein would clearly go to show that the Hon'ble Apex Court has made the observation to the effect that the scope of Section 138 of the N.I. Act is not for punishing drawer of a cheque whose conduct is reasonable or where compensation to the complainant to meet the ends of justice was made specifically in those circumstances, where the accused pleads himself guilty under Section 252 Cr.P.C. It is at that stage the Hon'ble Apex Court observed that the punishment need not be the object of Section 138 of the N.I. Act when the accused voluntarily pleads guilty for the alleged offence.
9. Whereas, in the instant case, a perusal of the materials placed before me, go to show that at the earliest Crl.R.P.No.586/2013 10 point of time that was on 07.09.2006, the accused was convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for a period of two months and also to pay a fine of `3,000/- for the offence punishable under Section 138 of the N.I. Act. It appears that he challenged the said Judgment of conviction and Order on sentence in Crl. A. No.108/2006 before learned Additional Sessions Judge at Hassan, which Court by its Judgment dated 01.03.2007 appears to have allowed the appeal in part and by setting aside the Judgment of conviction had remanded the matter back to the Trial Court. It is thereafter the Trial Court proceeded with the matter and pronounced the impugned Judgment of conviction and Order on sentence on 16.10.2012. Subsequently, challenging the said Judgment of conviction of the Trial Court dated 16.10.2012, the present petitioner preferred criminal appeal before the Sessions Judge's Court in Crl. A. No.154/2012 which came Crl.R.P.No.586/2013 11 to be dismissed on its merit by the Judgment dated 19.03.2013.
10. Thus it is crystal clear that the revision petitioner / accused had made a voyage of two rounds before the Trial Court and the Sessions Judge's Court in the matter and prior to the remanding of the matter by the Sessions Judge's Court and subsequent to the remand of the matter also he was convicted and the same was confirmed. Therefore, the accused apart from not pleading guilty under Section 252 Cr.P.C. has made futile exercise from the year 2000 till date in proving his alleged innocence towards the alleged offence but he has failed in his repetitive attempts. In such a circumstance, I do not find any reasons for setting aside the sentence of imprisonment in toto. Considering the fact that at the earliest point of time when he was convicted for the first time in the same case by the Trial Court on 07.09.2006, he was sentenced to undergo imprisonment only for two months and also imposed with fine and in the impugned Judgment passed Crl.R.P.No.586/2013 12 by the Trial Court, it has not given any reason for sentencing him to undergo simple imprisonment for one year and also considering the fact that even the Sessions Judge's Court also has not given its reasoning for confirming the said sentence of imprisonment, I am of the view that the said sentence of imprisonment of one year as simple imprisonment apart from payment of the fine amount is not proportionate to the gravity of the proven guilt against the accused. On the other hand, it is slightly exorbitant to the proven guilt. Therefore, considering the facts and circumstances of the case and also of the fact that the accused made two trips before the Trial Court as well as the Session Judge's Court and thus has made a futile exercise in ensuring the setting aside of his conviction which consequently has made the complainant to be deprived of the cheque amount for more than two decades, I am of the view that confining the sentence only to the fine amount would not meet the ends of justice and imposing the sentence of imprisonment is also warranted Crl.R.P.No.586/2013 13 in the circumstances of the case. However, one year simple imprisonment imposed since being on the higher side, the circumstances of the case warrant confining it to two months simple imprisonment which was originally and at the earliest point of time imposed against him by the Trial Court in its Judgment dated 07.09.2006 and that would be reasonable. Accordingly, I proceed to pass the following:
ORDER The revision petition is partly allowed. Though the Judgment of conviction for the offence punishable under Section 138 of the N.I. Act holding the accused / petitioner guilty of the alleged offence is confirmed, however, the Order on sentence is modified. While confirming the fine amount imposed at `21,000/- against the accused/petitioner, the sentence of imprisonment is reduced from one year to two months and the default sentence to one month's simple imprisonment. The rest of the finding of both the Trial Court as well as the Session Crl.R.P.No.586/2013 14 Judge's Court in the apportionment of the fine amount would remain unaltered.
Registry to transmit copy of this Judgment to the Trial Court and Session Judge's Court along with their respective records forthwith.
Sd/-
JUDGE sac*