Telangana High Court
Chowl Shanker vs The State Of A.P. Rep., By Its Pp And ... on 21 March, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.531 OF 2012
O R D E R:
The present Criminal Revision Case is filed aggrieved by the judgment dated 03.02.2012 in Criminal Appeal No.22 of 2011 on the file of the learned Sessions Judge, at Nizamabad (for short, "the appellate Court") in confirming the judgment dated 01.03.2011 in C.C.No.20 of 2010 on the file of the learned Judicial Magistrate of First Class, at Armoor (for short, "the trial Court").
2. Heard Mr. Venkat Reddy, learned counsel for the petitioner, Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1 State and Mr. Gudi Madhusudhan Reddy, learned counsel for unofficial respondent No.2.
3. The brief facts of the case are that on 15.01.2009, the petitioner/accused borrowed an amount of Rs.2,50,000/- from respondent No.2/complainant upon executing a promissory note. On demand, the accused issued a post dated cheque. The said cheque was presented on 16.09.2009 in Indian Overseas Bank, Armoor for collection of amount but the cheque was returned on 17.09.2009 with an endorsement "insufficient funds". Thereupon, 2 the complainant issued legal notice dated 24.09.2009 to the accused. On receipt of legal notice, the accused issued an evasive reply dated 13.10.2009. Thus, the accused was alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
4. 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 a period of one year and to pay fine of Rs.5,000/-, in default of payment of fine, the accused was directed to suffer simple imprisonment for a period of three months. Aggrieved thereby, accused preferred an appeal.
5. The appellate Court vide judgment cited supra dismissed the appeal confirming the judgment passed by the trial Court. Assailing the same, the present Revision.
6. 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 3 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 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 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 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.
7. Learned Assistant Public Prosecutor and learned counsel appearing 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.
8. On behalf of the prosecution, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P9. On behalf of the defence, DW1 was examined and Exs.D1 and D2 was marked. Upon careful consideration of the evidence of PWs.1 and 2, Exs.P1 to P9 coupled with Exs.D1 and D2, the trial Court and the appellate Court observed that the complainant has made out all the 5 ingredients which are required so as to constitute the offence under Section 138 of NI Act.
9. A perusal of the record shows that this Court vide order dated 30.03.2012 suspended the sentence of imprisonment imposed on the petitioner for the offence under Section 138 of NI Act pending Revision and released the petitioner 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.
10. 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.
11. The petitioner is further directed to deposit compensation of Rs.1,50,000/- to the credit of the trial Court within a period of six months from today. On such deposit, respondent No.2 is at 6 liberty to withdraw an amount of Rs.1,45,000/- with immediate effect. An amount of Rs.5,000/- shall remain with the State.
12. If the petitioner fails to comply the aforesaid direction, he shall suffer simple imprisonment for a period of two months.
13. 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