Telangana High Court
S.V.Subbaiah , E.V.Shastry vs A.Sadasiva Rao And The State Of A.P. on 21 March, 2024
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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.394 OF 2013
O R D E R:
The present Criminal Revision Case is filed aggrieved by the judgment dated 20.02.2013 in Criminal Appeal No.530 of 2012 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 30.05.2012 in C.C.No.17 of 2012 (old C.C.No.625 of 2011) on the file of the learned XXIII Special Magistrate, Hyderabad (for short, "the trial Court").
2. Heard Mr. S. Jagadish, learned counsel for the petitioner appearing on-line, Mr. K. Manik Prabhu, learned counsel for respondent No.1 and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.2 State.
3. The brief facts of the case are that the petitioner/accused issued a cheque bearing No.080337 dated 02.05.2011 to respondent No.1/complainant of Rs.70,000/- drawn on HDFC Bank, Lakdikapul Branch, Hyderabad, at his house in Vinay Nagar, Saidabad, Hyderabad towards discharge of debt due by him against the loan of Rs.2,50,000/- received and borrowed by him from the complainant on 07.03.2010 by executing a 2 promissory note, separately to the complainant stating that he is in need of money to meet his sons B-Tech engineering to tide over some financial problems. He promised to pay the said amount within three months along with interest at the rate of 18% per annum.
4. On presentation, the said cheque was returned unpaid for the reason "funds insufficient". The same was intimated to the accused. When the accused failed to pay the amount, the complainant issued legal notice dated 27.06.2011 to the accused. But the accused failed to pay the amount after stipulated time. Thus, 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 sentenced him to undergo rigorous imprisonment for three months and to pay fine of Rs.5,000/-, in default, accused was to suffer simple imprisonment for one month. Aggrieved thereby, accused preferred an appeal.
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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 Somnath Sarkar 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 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 4 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.
8. Learned counsel for respondent No.1 and 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. Learned counsel submitted that both the Courts upon appreciating the 5 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 PW1 and marked Exs.P1 to P7. 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 22.02.2013 suspended the sentence of imprisonment imposed on the petitioner for the offence under Section 138 of NI Act, pending Revision, and released him on bail on furnishing a personal bond for Rs.5,000/- by him with two sureties for 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 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 6 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.70,000/- 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 the same with immediate effect.
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 is disposed of. Needless to mention, the petitioner is at liberty to work out the remedies available under law.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 21.03.2024 ESP