Telangana High Court
Sri Tallam Balaji vs M/S. Godavari Fertilizers And ... on 15 February, 2024
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THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.1767 OF 2008
O R D E R:
The present Criminal Revision Case is filed against the judgment dated 27.11.2008 in Criminal Appeal No.169 of 2008 on the file of the learned Additional Metropolitan Sessions Judge for the trial of Communal Offence Cases-cum-VII Additional MSJ Court Red Hills, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 06.06.2008 in C.C.No.1143 of 2004 on the file of the learned X Additional Chief Metropolitan Magistrate, at Secunderabad (for short, "the trial Court").
2. Heard Mr. Anand, learned counsel representing Mr. P. Nagendra Reddy, learned counsel for the petitioner and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.2 State. No representation on behalf of respondent No.1. Perused the record.
3. The brief facts of the case are that M/s. Vasavi Transport Company/accused No.1 was the partnership firm and accused Nos.2 and 3 were the active partners of the said firm. Accused No.1 was entrusted with the responsibility of stocking and storing the products of respondent No.1 company/complainant at 2 Cuddapah with a condition that accused No.1 firm shall not deliver and release the stocks without any written order or authorization to anyone. On 25.08.2003 a surprise check of physical stock was made at the go down of accused No.1 firm by the concerned authorities and it was found that there was a shortage of stock worth Rs.1,35,14,730/-. Accused No.2 owned the liability of shortage and the accused Nos.2 and 3 together agreed to make good all the shortage.
4. Pursuant thereto, an agreement-cum-indemnity bond was executed by accused Nos.2 and 3 being the partners of accused No.1 firm. Thereafter, five cheques were issued by accused No.1 firm pertaining to different dates, drawn by accused No.2, who was the authorized signatory of the firm. Out of those cheques, the impugned cheque dated 09.01.2004 for an amount of Rs.30,14,730/-, when presented for realization with the banker, it was dishonoured for the reason "insufficient funds". The complainant issued a legal notice to accused Nos.1 to 3 but there was no response. Thus, accused Nos.1 to 3 were alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act"). 3
5. The trial Court vide judgment cited supra, found accused No.1 firm and accused No.3 guilty of the alleged offence and imposed fine of Rs.5,000/- against accused No.1 firm, which was payable by accused No.3. Further, accused No.3 was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for a period of one month. The total fine amount imposed against accused Nos.1 and 3 was Rs.10,000/-. Aggrieved thereby, accused No.3 preferred an appeal.
6. The appellate Court vide judgment cited supra dismissed the appeal confirming the conviction and sentence imposed by the trial Court. Assailing the same, the present Revision.
7. Learned counsel for the petitioner submitted that vide judgment dated 21.02.2011 in C.C.No.156 of 2005, the learned II Additional Judicial Magistrate of First Class, Kadapa, found accused No.2 not guilty for the offences punishable under Sections.406, 407, 409 and 420 of IPC and thereby acquitted him.
8. Learned counsel for the petitioner further stated that the trial Court as well as the appellate Court concurrently found the petitioner guilty for the offence punishable under Section.138 of 4 NI Act. Learned counsel relied upon the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 2015, wherein and whereby, this Court upon taking into consideration the decisions passed by the Hon'ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 1, R. Vijayan Vs. Baby 2, S.R. Sunil & Company Vs. D. Srinivasavaradan 3, Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 4 and Somnath Sarka Vs. Utpal Basu Mallick 5, wherein it was held that, the object of incorporating the penal provisions under Sections 138 to 142 of the NI Act is not only to provide a strong criminal remedy to deter the high incidence of dishonour of cheques but a remedy of punitive nature and observed that where there is a conviction, there should be a consequential levy of fine amount sufficient to cover the cheque amount along with simple interest thereon at a fixed rate of 9% per annum and held that the interest should be followed by an award of such sum as compensation from the fine amount. However, to meet the ends of justice, this Court modified the sentence of six months of simple imprisonment with fine of Rs.10,000/-, to imprisonment 1 2010 (5) SCC 663 2 (2012) 1 SCC 260 3 (2014) 16 SCC 32 4 (2015) 9 SCC 622 5 2013 (16) SCC 465 5 till rising of the day by giving set off to the period undergone if any and fine of Rs.10,00,000/- of which Rs.50,000/- would go to the State and Rs.9,50,000/- as compensation to the complainant which includes Rs.10,000/- fine if paid to adjust and out of it in compensation received by complainant, for the balance to pay or deposit within one month from that day, failing which, the accused was to suffer the default sentence of six months simple imprisonment for the lower Court to levy under Section 421 of Cr.P.C. and enforce it. Therefore, he seeks to pass appropriate orders relying upon the said order.
9. Learned Assistant Public Prosecutor opposed the same and contended that respondent No.1 underwent severe mental agony by roaming around the trial Court as well as the appellate Court. He submitted that both the Courts upon appreciating the oral and documentary evidence rightly passed their respective judgments. But, as the matter is pending from the year 2008, he seeks to pass appropriate orders.
10. A perusal of the record shows that this Court vide order dated 28.11.2008 suspended the sentence of imprisonment alone imposed against the petitioner and enlarged him on bail on his executing a personal bond for Rs.10,000/- with two sureties 6 of a like sum each to the satisfaction of the trial Court. Thereafter, the matter underwent several adjournments.
11. Having regard to the submissions made by both the learned counsel and upon perusing the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 2015, this Court deems it appropriate to direct the petitioner/accused No.3 to deposit an amount of Rs.31,00,000/- to the credit of the learned X Additional Chief Metropolitan Magistrate, at Secunderabad within a period of one year from the date of receipt of a copy of this order, while reducing the sentence imposed against the petitioner to the period of imprisonment already undergone by him.
12. In default of payment of the said amount, the impugned judgment dated 27.11.2008 in Criminal Appeal No.169 of 2008 on the file of the learned Additional Metropolitan Sessions Judge for the trial of Communal Offence Cases-cum-VII Additional MSJ Court Red Hills, Hyderabad stands good in all respects.
13. Upon depositing the said amount, respondent No.1 company/complainant is granted liberty to withdraw the same with immediate effect.
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14. With the above direction, the Criminal Revision Case stands disposed of.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 15.12.2023 ESP 8 THE HON'BLE SRI JUSTICE E. V. VENUGOPAL 316 CRIMINAL REVISION CASE No.1767 OF 2008 Dated: 15.02.2024 ESP