Telangana High Court
K.Issac vs A.Ashok Kumar on 5 March, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.2208 OF 2013
O R D E R:
The present Criminal Revision Case is filed seeking to set aside the judgment dated 12.09.2013 in Criminal Appeal No.327 of 2012 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 10.04.2012 in C.C.No.22 of 2011 (old C.C.No.205 of 2010 on the file of I A.C.M.M., Hyderabad) on the file of the learned II Special Magistrate, Hyderabad (for short, "the trial Court").
2. Heard Mr. M. Arun Kumar, learned Amicus Curiae appearing on behalf of the petitioner, Mr. Akhileshwar, learned counsel representing Mr. A. Tulsi Raj Gokul, 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 misrepresented that he was the owner of the plot bearing No.47 in LIG category, at Shamshabad ring road town allotted by Hyderabad Urban Development Authority and entered into an agreement of sale with respondent No.1/ complainant. Believing 2 his words, the complainant paid an amount of Rs.2,00,000/- to the accused as an advance and the accused agreed to register the plot in the name of the complainant on payment of balance sale consideration within two months from the date of the said agreement. But the accused failed to register the said plot inspite of repeated requests made by the complainant.
4. The complainant demanded the accused to show him the original document pertaining to the said property. Then, the accused admitted that he had no such agreement with him. However, the accused assured him that he would return the advanced amount and thereby issued the cheque bearing No.000184 dated 05.11.2009 for Rs.1,00,000/- and another cheque bearing No.000185 dated 10.11.2009 for Rs.1,00,000/- both drawn on State Bank of Hyderabad, Tarnaka Branch, Secunderabad. The accused requested the complainant to present the said cheques in the month of February, 2012.
5. On presentation, the two cheques were returned for the reason "insufficient funds". The complainant issued legal notices for the two cheques. The accused acknowledged the said notices but failed to repay the amount due within the stipulated time. Hence, the accused was alleged to have committed the offence 3 punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
6. The trial Court vide judgment cited supra sentenced the accused to suffer rigorous imprisonment for a period of one year and pay compensation of Rs.2,00,000/- to the complainant within four months from that day @ Rs.50,000/- per month commencing from May, 2012 in default of any single instalment, he was directed to undergo simple imprisonment for a period of two months. Aggrieved thereby, accused preferred an appeal.
7. The appellate Court vide judgment cited supra dismissed the appeal confirming the judgment passed by the trial Court. Assailing the same, the present Revision.
8. 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 4 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 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 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 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.
9. Learned counsel appearing 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 oral and documentary evidence rightly passed the impugned judgments and sought to dismiss the Revision.
10. On behalf of the prosecution, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P20. On behalf of the defence none were examined and no document was marked. Upon careful consideration of the oral and documentary evidence, the trial Court observed that PW1, in his evidence stated that the accused issued Exs.P3 and P4 cheques stating that he would make necessary arrangements in his account, to honour the two cheques, on the date of presentation. Except a vague suggestion of denial that the accused has not issued the two cheques, no 6 specific suggestion was made to PW1, by the accused, stating that he has not issued the subject cheques. According to accused, he stated that the cheques were lost and he made a complaint to the bank authorities. Except making a suggestion to PW1 in that regard, accused has not chosen to adduce any evidence to prove his contention. The accused also failed to file a copy of the so called complaint made to bank authorities with regard to the loss of cheques. The accused never entered into the witness box to depose about the loss of cheques. However, from the documentary evidence of Exs.P1 and P2, it was clear that the accused claimed to be the owner of the subject plot belonging to another, entered into an agreement of sale with the complainant and received an amount of Rs.2,00,000/- from the complainant towards advance amount from the total sale consideration of Rs.10,94,800/-.
11. The accused after receiving the legal notices, failed to repay the amounts. Thus, the accused created upon himself a liability of returning the advance amount of Rs.2,00,000/- which is a legally enforceable liability. Thus, the trial Court found that the accused issued Exs.P3 and P4 cheques in discharge of the said legally enforceable liability and rendered the judgment cited 7 supra. The appellate Court upon re-appreciating the evidence available on record also found that the ingredients of Section 138 of NI Act are proved by the complainant and the accused failed to raise any probable defence in this case. Hence, the appellate Court dismissed the appeal confirming the judgment passed by the trial Court.
12. A perusal of the record shows that this Court vide order dated 25.09.2013 suspended the execution of sentence imposed against the petitioner and ordered him to be released on bail on his executing a personal bond for a sum of Rs.10,000/- with two sureties for a like sum each to the satisfaction of the trial Court pending Revision. Thereafter, the matter underwent several adjournments.
13. 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 8 imposed against the petitioner to the period of imprisonment already undergone by him.
14. The petitioner is further directed to pay compensation of Rs.2,50,000/- 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.
15. If the petitioner fails to comply the aforesaid direction, the judgment dated 12.09.2013 in Criminal Appeal No.327 of 2012 on the file of the learned Metropolitan Sessions Judge, Hyderabad stands good in all respects.
16. 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: 05.03.2024 ESP