Telangana High Court
B.H.Kutumba Rao, R.R.Dt., vs The State Of A.P., Rep. By Pp., And Anr., on 21 March, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.1912 and 1913 OF 2012
COMMON ORDER:
The Criminal Revision Case Nos.1912 and 1913 of 2012 are filed aggrieved by the judgment dated 27.09.2012 in Criminal Appeal Nos.77 and 87 of 2011 on the file of the learned Additional District Judge, at Wanaparthy (for short, "the appellate Court") in modifying the judgment dated 16.08.2011 in C.C.No.297 of 2005 on the file of the learned Judicial Magistrate of First Class, Special Mobile, Nagarkurnool (for short, "the trial Court").
2. Heard Ms. Malavika Badriraju, learned Amicus Curiae appearing on behalf of the petitioner, Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1 State and Mr. Shanta Ram, learned counsel representing Mr. Hanumanth Rao, learned counsel for respondent No.2 State.
3. As the issue involved in both the Revision cases is one and the same, they are being disposed of by way of common order. 2
4. For the sake of convenience, the facts in Criminal Revision Case No.1912 of 2012 are discussed are hereunder:-
The brief facts of the case are that respondent No.2/complainant and petitioner/accused were known to each other. On 24.06.2004, the accused obtained an amount of Rs.1,50,000/- from the complainant and an amount of Rs.15,000/- on 18.12.2004. On 18.12.2004, he executed a document in favour of the complainant at Kollapur and issued post dated cheque to the complainant vide Cheque No.874981 dated 18.12.2004. The accused failed to pay the amount due inspite of several demands. Therefore, the complainant presented the subject cheque in State Bank of Hyderabad, Kollapur branch. But the same was dishonoured for the reasons "insufficient funds". Therefore, the complainant issued legal notice dated 19.04.2005 to the accused demanding him to pay the amount due. But the accused failed to pay the amount within the stipulated time. Therefore, the accused was alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
5. The trial Court vide judgment cited supra found the accused guilty for the offence under Section 138 of NI Act and 3 sentenced him to undergo rigorous imprisonment for a period of six months and pay fine of Rs.5,000/-, in default, he was directed to suffer simple imprisonment for one month. Aggrieved thereby, accused preferred an appeal.
6. The appellate Court vide judgment cited supra dismissed the appeal confirming the judgment passed by the trial Court. Assailing the same, the present Revision.
7. 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 N.I.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 1 2010 (5) SCC 663 2 (2012) 1 SCC 260 3 (2014) 16 SCC 32 4 (2015) 9 SCC 622 4 Somnath Sarkar Vs. Utpal Basu Mallick5, 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 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 as imposed by the lower Court. Therefore, he seeks to pass appropriate orders relying upon the said order. 5 2013 (16) SCC 465 5
8. Learned Assistant Public Prosecutor and learned counsel for respondent No.2 opposed the same and contended that respondent No.2 underwent severe mental agony by roaming around the trial Court as well as the appellate Court. Learned counsel submitted that both the Courts upon appreciating the oral and documentary evidence rightly passed the impugned judgments and sought to dismiss the Revision.
9. On behalf of the prosecution, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P9. On behalf of the defence, none were examined and no document was marked. Upon careful scrutiny of the oral and documentary evidence, the trial Court and the appellate Court observed that the complainant has made out all the ingredients which are required so as to constitute the offence under Section 138 of NI Act.
10. A perusal of the record shows that this Court vide order dated 09.10.2012 suspended the sentence of imprisonment imposed on the petitioner and released him on bail on furnishing a personal bond for Rs.5,000/- by him with one surety for a like sum each to the satisfaction of the trial Court. Thereafter, the matter underwent several adjournments.
6
11. Having regard to the submissions made by all the learned counsel, on 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 and considering the fact that the petitioner underwent mental agony roaming around the trial Court as well as the appellate Court, this Court deems it appropriate to take a lenient view and reduce the sentence imposed against the petitioner to the period of imprisonment already undergone by him.
12. The petitioner is further directed to deposit compensation of Rs.1,00,000/- to the credit of the trial Court within a period of six months from today. On such deposit, respondent No.1 is at liberty to withdraw an amount of Rs.90,000/- with immediate effect. An amount of Rs.10,000/- shall remain with the State.
13. If the petitioner fails to comply the aforesaid direction, he shall suffer simple imprisonment for a period of one month.
14. With the above direction, the Criminal Revision Case No.1912 and 1913 of 2012 are disposed of. Needless to mention, the petitioner is at liberty to work out the remedies available under law.
7
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 21.03.2024 ESP