Telangana High Court
Syed Arifuddin, vs The State Of Ap Rep By Its Pp Hyd., And ... on 9 January, 2024
1
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE Nos.484 and 834 of 2012
COMMON ORDER:
Since the issue involved in both the Criminal Revision Cases is one and the same, they are being heard together and disposed of by way of common order.
2. The Criminal Revision Case No.484 of 2012 is filed by the petitioner/accused aggrieved by the judgment dated 28.02.2012 in Crl.A.No.261 of 2011 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 11.05.2011 in C.C.No.472 of 2010 on the file of the learned XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad (for short, "the trial Court").
3. The Criminal Revision Case No.834 of 2012 is filed by the petitioner/complainant seeking to modify the judgment dated dated 28.02.2012 in Crl.A.No.261 of 2011 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 11.05.2011 in C.C.No.472 of 2010 on the file of the learned XV Additional 2 Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad (for short, "the trial Court").
4. Heard Mr. Zulfaquar Alam, learned counsel for the petitioner, Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1 State. No representation on behalf of unofficial respondent No.2 despite service of notice. Perused the record.
For the sake of convenience, the facts in Criminal Revision Case No.834 of 2012 are discussed hereunder:-
5. The brief facts of the case are that the petitioner/complainant and respondent No.2/accused were known to each other. Out of such acquaintance, the accused requested the complainant to lend a sum of Rs.2,00,000/- as hand loan and promised to repay the same within a short time. On 24.04.2009 and 25.04.2009, the complainant advanced an amount of Rs.2,00,000/- to the accused through cheque bearing Nos.468954 and 468955 dated 24.04.2009, 468956 and 468957 dated 25.04.2009 for a sum of Rs.50,000/- each totaling Rs.2,00,000/- drawn on Darussalam Co-operative Urban Bank Limited, Aghapura Branch, Hyderabad. Later, the complainant demanded the accused to repay the said loan. 3
6. On demand, the accused issued cheque bearing No.860467 dated 10.07.2009 for Rs.2,00,000/- drawn on State Bank of India, Tolichowki branch, Hyderabad in favour of the complainant. The complainant deposited the said cheque in his account with his banker namely, Darussalam Co-operative Urban Bank Limited, Aghapura Branch, Hyderabad on 11.07.2009 and the said cheque was returned as unpaid for the reason "insufficient funds". The complainant informed the accused about dishonour of the cheque. Then, the accused requested him to represent the cheque. On re-presentation, the said cheque was returned unpaid once again, for the reason "insufficient funds". Therefore, the complainant issued legal notice dated 04.02.2010 to the accused seeking to pay the loan amount. But in vain. Hence, the complainant filed a case against the petitioner under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
7. The trial Court vide judgment dated 11.05.2011 in C.C.No.472 of 2010 sentenced the accused to undergo simple imprisonment for a period of one year and pay fine of Rs.10,000/-, in default, sentenced him to undergo simple imprisonment for a period of three months for the offence 4 punishable under Section 138 of NI Act. The remand period of the accused if any, was directed to be set off as against the term of imprisonment as per Section 428 of Cr.P.C. Against which, the accused preferred an appeal.
8. The appellate Court vide judgment dated 28.02.2012 in Crl.A.No.261 of 2011 dismissed the appeal by modifying the judgment passed by the trial Court and awarding the compensation of Rs.10,000/- to the complainant, apart from sentencing the accused to suffer the imprisonment for one year and payment of fine of Rs.10,000/- imposed by the trial Court. Assailing the same, the present Revision.
9. During the course of hearing, learned counsel for the petitioner stated that the trial Court as well as the appellate Court concurrently found the petitioner guilty for the offence punishable under Section.138 of 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. 1 2010 (5) SCC 663 5 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, modified the sentence of six months of simple imprisonment with fine of Rs.10,000/-, to imprisonment 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 2 (2012) 1 SCC 260 3 (2014) 16 SCC 32 4 (2015) 9 SCC 622 5 2013 (16) SCC 465 6 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, seeks to pass appropriate orders relying upon the said order.
10. Learned Assistant Public Prosecutor contended that respondent No.2 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 the impugned judgments. But, as the matter is pending from the year 2012 learned Assistant Public Prosecutor sought to pass appropriate orders.
11. Having regard to the submissions made by all the learned counsel and upon taking into consideration the decisions of the Apex Court cited (supra1) and Meters and Instruments Private Limited and another Vs. Kanchan Mehta 6, this Court is of the view that the accused had already undergone mental agony by suffering incarceration and roaming around the trial Court as well as the appellate Court and hence, this Court inclined to set off the period of imprisonment already undergone by him. Consequently, the petitioner is directed to deposit an amount of 6 (2018) 1 Supreme Court Cases 560 7 Rs.2,00,000/- to the credit of the trial Court within a period of six (6) months from the date of receipt of a copy of the order. On depositing the same, petitioner/complainant is at liberty to withdraw the same with the permission of the trial Court.
12. In default of payment of the said amount, the impugned judgment dated 28.02.2012 in Crl.A.No.261 of 2011 on the file of the learned Metropolitan Sessions Judge, Hyderabad stands good in all respects.
13. With the above direction, the Criminal Revision Case Nos.834 of 2012 and 484 of 2012 are disposed of.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 09.01.2024 ESP