Sri Iqbal vs Sri T M Subramanya
2021 Latest Caselaw 1396 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 25th DAY OF JANUARY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.3960/2019

BETWEEN:

SRI IQBAL S/O P.M. KUNHI BAWA
AGED ABOUT 52 YEARS
RESIDING AT :A.I. NAZEEN
NATEKAL POST
MANGALORE-575001.
                                      ... PETITIONER

              (BY SRI. AMRUTHESH C, ADVOCATE)
AND:

SRI T M SUBRAMANYA
S/O T.N. MANJUNATHAGOWDA
AGED ABOUT 35 YEARS
RESIDING AT: TRIPURA
VILLAGE, BETTAGERE POST
MUDIGERE TALUK
CHIKKAMAGALUR DISTRICT
577182.
                                        ... RESPONDENT

               (BY SRI C N KAMATH, ADVOCATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
08.05.2019 PASSED BY THE PRL. DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU IN CRL.A.NO.105/2019 AND ALLOW
THE PRESENT PETITION.
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     THIS CRIMINAL PETITION COMING ON FOR ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Parties are present through video conference and not

disputed the signature affixed on the affidavit.

2. This petition is filed by the petitioner praying this

Court to set aside the order dated 08.05.2019 passed in

Crl.A.No.105/2019 and allow the present petition.

3. The factual matrix of the case is that respondent

herein had filed a private complaint under Section 200 of

Cr.P.C., for the offences punishable under Section 138 of the

N.I. Act. The Trial Judge, after considering both oral and

documentary evidence available on record, convicted the

accused and directed to pay Rs.16,00,000/- as fine amount.

Hence, the appeal is filed before the Appellate Court, the

Appellate Court while suspending the sentence, directed to

deposit 50% of the cheque amount before the Trial Court

within a period of one month. Hence, the present petition is

filed before this Court.

4. Having perused the material on record, the cheque

amount was Rs.10 lakh and cheque was issued in 2013 and

the Trial Judge considered the material and also taken the

period of 6 years in disposal of the case, directed to pay an

amount of Rs.16 lakhs. The Appellate Court while considering

the suspension of sentence passed an order to pay 50% of the

cheque amount which comes to Rs.5 lakh. The Appellate

Court not directed to pay amount of fine amount 50% only

50% of the cheque amount. It is discretion of the appellate

Court. learned counsel however, brought to the notice of this

Court, the judgment of the Apex Court in the case of Dilip S

Dahanukar vs. Kotak Mahindra Co. Ltd., & Another

reported in (2007) 6 SCC 528, wherein it is held that

fundamental right of appeal against the conviction under

Section 374 of Cr.P.C., condition that may be imposed for

hearing of the appeal against the order of compensation. It is

also pointed out that the Appellate Court directed to pay 50%

of the cheque amount and not fine amount. However, taken

note of the matter is of the year 2013 and the same was

disposed of in the year 2019 and the appeal is also pending

before the Trial Court from 2019, I am of the opinion that it

can be modified by directing to pay 25% of the fine amount.

5. In view of the discussion made above, I pass the

following:-

ORDER

Petition is allowed in part.

The order of the appellate Court is modified directing the respondent to pay 25% of the fine amount instead of 50% of the cheque amount.

Four weeks time is granted to deposit the amount.

Sd/-

JUDGE

nms