Sri Dattatreya Hegde vs Sri Prasad Shetty
2021 Latest Caselaw 6442 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 18TH DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO. 257 OF 2013

BETWEEN:

SRI. DATTATREYA HEGDE,
S/O. LATE GANAPATI HEGDE,
AGED ABOUT 48 YEARS,
RESIDING AT NO.3/1, 8TH CROSS,
1ST MAIN, SRIKANTESHWARANAGAR,
BENGALURU-560 096.
                                     ...PETITIONER
(BY SRI. VINOD PRASAD, ADVOCATE)

AND:

SRI. PRASAD SHETTY,
S/O. PANDURANGA SHETTY,
AGED ABOUT 36 YEARS,
RESIDING AT NO.10/2,
5TH MAIN ROAD,
SHANKARNAGAR,
MAHALAKSHMI LAYOUT,
BENGALURU-560 096.
                                     ...RESPONDENT

(BY SRI. S. SHANKAR SHETTY, ADVOCATE)(ABSENT)

    THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING
                                 2

TO SET ASIDE THE ORDER DATED 16.01.2013 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-V,
BENGALURU IN CRL.A.NO.660/2012, SO FAR AS IT
RELATES TO THE REDUCING THE FINE AMOUNT FROM
RS.3,50,000/- TO RS.2,50,000/-.

     THIS CRIMINAL REVISION PETITION COMING FOR
FINAL HEARING,, THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

Sri. Vinod Prasad, learned counsel for revision

petitioner is present virtually. There is no

representation on behalf of respondent. Hence, this

Court has perused the materials and proceeded to

pass the orders.

2. The accused, who is a respondent was

facing trial and was convicted for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short 'N.I. Act') and

ordered to pay a sum of Rs.3,60,000/- with a default

sentence of six months, out of the said amount,

Rs.3,50,000/- was ordered to be paid as

compensation to the complainant.

3. Being aggrieved by the same, the accused

preferred an appeal before District Court in

Crl.A.No.660/2012. Learned judge in the First

Appellate Court after hearing the parties dismissed the

appeal filed by the accused, however, modified the

sentence of fine from Rs.3,60,000/- to 2,50,000/-,

which is the cheque amount. Being aggrieved by the

same, complainant is before this Court seeking

enhanced compensation.

4. The brief facts of the case are as under:-

The complaint came to be filed under Section

200 Cr.P.C., contending that accused and complainant

were known to each other. The accused was running

a condiments shop in premises bearing No.11, ground

floor, 5th Main, Shankar Nagar, Bengaluru, on lease

basis from Sri. Dore Raju. The complainant was

running shop near the shop of the accused and

accused has approached the complainant stating that

he is intending to dispose off the shop by closing

business and complainant was interested in getting

the said shop from the accused and the accused

decided to transfer the said business to the

complainant from the consent of the owners of the

shop premises and paid an amount of Rs.3,50,000/-

as good will to the accused and had the possession of

the premises. The complainant further commenced

the business on the said premises on 27.03.2009.

After running the business for sometime, the

complainant came to know that there was no much

turnover as is portrayed by the accused and he

explained the same to the accused and he agreed to

take back the business from the complainant. The

accused agreed to repay good will to the extent of

Rs.2,50,000/- and took back the business from the

complainant. The accused issued two cheques in this

regard, one of Rs.3,50,000/- and another cheque of

Rs.2,50,000/- on 18.06.2009 towards the good will as

well as expenses towards furnishing of the shop. The

accused paid cash in Rs.3,50,000/- and got cancelled

the cheque issued in a sum of Rs.3,50,000/- and

assured the complainant that, on the presentation of

2nd cheque bearing No.862941 for Rs.2,50,000/-

drawn on ICICI Bank Limited, Bengaluru, with a

promise to honor the same. However, to his surprise,

the cheque on presentation came to be dishonored

and statutory notice came to be issued. The accused

failed to reply to the notice and there is no compliance

to the callings of notice, which necessitated the

complainant to file a complaint against the accused

seeking action under Section 138 of N.I. Act.

5. The presence of the accused was secured

and plea was recorded. Since accused pleaded not

guilty, trial was held. In order to prove the case of

the prosecution, the complainant got examined

himself as P.W-1 and relied on 38 documents which

were exhibited and marked as Exs.P1 to P38. The

accused statement as contemplated under Section

313 Cr.P.C was recorded, wherein the accused denied

all the incriminatory circumstances, but did not chose

to examine himself as a witness nor placed any

written submission before the Court. The above

incident as is contemplated under Section 313(5) of

Cr.P.C., Therefore, the trial Magistrate heard the

parties in detail and passed an order of conviction by

convicting the accused for the offence punishable

under Section 138 of N.I. Act and imposed fine of

Rs.3,60,000/- as against cheque amount of

Rs.2,50,000/- with default sentence of six months

simple imprisonment and out of the fine amount, a

sum of Rs.3,50,000/- was ordered to be paid as

compensation to the complainant. However, in

appeal, the learned District Judge after hearing the

parties in detail modified the fine amount awarded by

the trial Magistrate in a sum of Rs.2,50,000/-. Being

aggreived by the same, the complainant is before this

Court.

6. Learned counsel for revision petitioner

Sri. Vinod Prasad, vehemently contended that there is

no proper reason assigned by the learned judge in the

First Appellate Court for reduction of the fine amount

especially when the First Appellate Court concurred

with the finding of the trial Magistrate that accused is

guilty of the offence punishable under Section 138 of

N.I. Act and sought for allowing the revision petition.

7. The respondent engaged the services of the

counsel. But the counsel for respondent remained

absent on 24.11.2021 and 17.12.2021. Under the

circumstances, in view of the arguments put forth by

the learned counsel for revision petitioner, the sole

point that would arise for consideration is:-

Whether the order passed by the learned judge in the First Appellate Court modifying the fine amount from Rs.3,50,000/- to Rs.2,50,000/- is justifiable ?

8. In the case on hand, in the absence of any

appeal or revision petition filed by the accused

convicting him for the offence punishable under

Section 138 of N.I. Act, the only question that is to be

looked into is whether the approach of the District

Judge in reducing the fine amount from Rs.3,60,000/-

to Rs.2,50,000/- is justifiable in the facts and

circumstances of the case.

9. In the case on hand, admittedly the

complainant and accused were known to each other as

neighbor shop owners. The material on record depicts

that in respect of the shop occupied by the

complainant transacted with the accused and paid a

sum of Rs.3,50,000/- as good will and also occupied

the shop of the accused. Further, because of the loss

in the business he intended to return the shop to the

accused and wanted to take back his amount. The

expenditure incurred for furnishing the shop after

occupation by the complainant was settled out at a

sum of Rs.3,50,000/-, out of good will paid by the

accused. However, accused agreed to re-pay

Rs.2,50,000/- and issued cheque in question, which

on presentation came to be dishonored. There is no

reply to the callings of the legal notice or compliance.

Accordingly, the complainant was constrained to file a

complaint before jurisdictional Magistrate which ended

in an order of conviction. The accused failed to rebut

the presumption available to the complainant under

provisions of 118 and 139 of N.I. Act. Further, there

is no evidence placed by the accused and therefore,

the presumption stood unrebutted before the trial

Magistrate and same has been rightly appreciated by

the trial Magistrate as well as the learned judge in the

First Appellate Court. Admittedly, the cheque - Ex.

P1 is of the year 2009. Ordering the same cheque

amount would not serve the purpose and object

enacted under Section 138 of the N.I. Act. In fact,

the statute provides discretion for the trial Judge to

impose double the cheque amount as the fine amount,

depending upon the facts and circumstances of each

case. The learned judge in the First Appellate Court

though maintained the order of conviction against the

accused but without assigning proper reasons in the

impugned judgment, reduced the fine amount.

Therefore, this Court is of the considered opinion that

there is an error in exercising the appellate jurisdiction

by the learned judge in the First Appellate Court.

10. In the facts and circumstances and having

regard to the business transactions of the parties and

the amount recovered under the cheque is of the good

will, this Court is of the considered opinion that if the

fine amount is awarded in a sum of Rs.3,00,000/- as

against the cheque amount of Rs.2,50,000/-, ends of

justice would be met. Accordingly, point No.1 is

answered in 'Negative' and pass the following:-

ORDER

i. The Criminal revision petition is allowed in

part.

ii. While maintaining the order of conviction of for the offence punishable under Section 138 of N.I. Act, the accused is ordered to pay a fine of Rs.3,05,000/-(Rupees Three Lakh Five Thousand

only), out of which a sum of Rs.3,00,000/- would be paid as compensation to the complainant.

Ordered accordingly.

Sd/-

JUDGE

AG