Sri S Harish Kumar S/O Late ... vs Sri T P Doreswamy Gowda S/O Papanna ...
2021 Latest Caselaw 1460 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JANUARY, 2021

                             BEFORE

  THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                   CRL. RP NO.695 OF 2011

BETWEEN:

Sri. S. Harish Kumar,
S/o. Late Shivaramaiah B.,
Aged about 36 years,
Residing at No.6,
Krishnanagar,
Hosur - 635 126.                         .....Petitioner

(By Sri. K.A. Pasha, Advocate)

AND:

Sri. T.P. Doreswamy Gowda,
S/o. Papanna Gowda,
Aged about 46 years,
R/at. 'Banashankari Nilaya",
No.22, 2nd Floor,
6th Cross, 5th Main, J.C. Nagara,
Mahalakshmipuram,
Bangalore- 560 086.                      .....Respondent

(By Sri. Hanumanthraya .D, Advocate and
    Sri. Harish Kumar M.C., Advocate)

      This Criminal Revision Petition is filed under Section 397
r/w. 401(5) of Cr.P.C. praying to set aside the order dated
26.05.2011 passed by the P.O., FTC-IX, Bangalore in Crl.A. No.
657/2010 and order dated 23.08.2010 passed by the XIII
ACMM, Bangalore in C.C. No.69/2009.
                                                    CRL.R.P. NO.695/2011
                                  2


      This Criminal Revision Petition coming on for Orders
through Video Conferencing/Physical Hearing this day, the
Court passed the following:

                                ORDER

The present petitioner is an accused, who through this

petition has challenged the confirmation of his conviction for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for brevity, hereinafter referred to as

"N.I. Act') in Criminal Appeal No.657/2010 dated 26.05.2011

passed by Presiding Officer, Fast Track Court-IX, Bangalore

City (for brevity hereinafter referred to as " Sessions Judge's

Court), which had confirmed the judgment of conviction and

order of sentence dated 23.08.2010 in CC No.69/2009 passed

by the XIII Additional Chief Metropolitan Magistrate, Bangalore

(for brevity hereinafter referred to as "trial Court").

2. It is alleged by the complainant that, towards

repayment of the loan borrowed by him, the accused had issued

him a cheque bearing No.684366 dated 04.07.2008 drawn on

ICICI Bank, Koramangala Branch, in his favour for a sum of

`1,00,000/- . When the said cheque was presented, it came to

be returned with the Banker's endorsement as 'Payment CRL.R.P. NO.695/2011

Stopped'. Thereafter, the complainant issued a legal notice

demanding the cheque amount. Since the accused failed to pay

the cheque amount, the complainant, initiated a criminal case

against him for the offence punishable under Section 138 of the

N.I. Act.

3. Respondent is being represented by his counsel.

4. Learned counsels from both side are physically

present before this Court and have filed an application under

Section 147 of the N.I. Act seeking permission to compromise

the matter in terms of the settlement said to have been made

between them.

5. In the compromise application filed today, the

parties have stated that the dispute between the petitioner and

the respondent have been amicably settled out of Court and the

disputed cheque amount has already been received by the

respondent from the petitioner. They have also submitted that,

a sum of `60,000/- which is said to have been deposited by the

petitioner on 01.08.2011 before the Registry of Small Causes

Court, Bengaluru, be permitted to be withdrawn. They have

also stated in the same compromise petition that the present CRL.R.P. NO.695/2011

petitioner is in Judicial Custody as per the order of this Court

dated 13.10.2020 and hence, the non-bailable warrant may be

recalled.

6. The said compromise petition has been signed by

the respondent and the learned counsel for both parties.

Learned counsel for both parties make their submission on the

line of the compromise petition.

7. Learned counsel for the petitioner in his oral

submission also submits that the deposit of `60,000/- made in

the Court of Small Causes at Bengaluru, be released in favour of

the accused.

8. Learned counsel for the respondent submits his 'no

objection' to release the alleged deposit amount of `60,000/- in

favour of the accused and specifically acknowledges that, he

has received the entire cheque amount and he is fully satisfied

and the matter is fully settled.

9. In view of the fact that the parties have settled the

matter only in this High Court after contesting both in the trial

Court and Sessions Judge's Court, though under Section 147 of

the N.I. Act the settlement may be permitted, however, the CRL.R.P. NO.695/2011

same is subject to the accused paying grading cost of 15%

as per the judgment of the Hon'ble Apex Court in

Damodar S. Prabhu Vs. Syed Babalal.

Babalal. H reported in (2010)

5 SCC 663.

663.

10. Accordingly, subject to the accused paying 15%

of the Grading Cost, which amounts to `15,000/-, the

application filed under Section 147 of the N.I. Act is

allowed. The parties are permitted to settle the matter in

terms of the settlement reflected in the application filed

under Section 147 of the N.I. Act. However, the same is

subject to the petitioner/accused paying grading cost of

`15,000/- in the Court, where a sum of Rs.60,000/- is said

to have been deposited by him.

12. Though the learned counsel for the petitioner

herein contends that, he has deposited a sum of `60,000/-

before the Registry of Small Causes Court at Bengaluru,

but nothing is there in the record of this petition

to show the same. On the other hand, the

order of this Court dated 28.7.2011 go to show CRL.R.P. NO.695/2011

that the impugned sentence was suspended subject to the

petitioner depositing a sum of `25,000/- before the trial

Court and he executing a personal bond for a sum of

Rs.20,000/- with one surety to the trial Court's satisfaction.

Therefore, in the absence of any specific material to show that

the accused had deposited any amount pertaining to the

present matter, apart from `25,000/- ordered by this Court on

28.07.2011, no order regarding release of the amount of

`60,000/- is being made in the matter. However, the petitioner

is at liberty to make necessary application seeking necessary

orders after furnishing the necessary details through supporting

documents before the concerned Court.

13. In case the petitioner has deposited `25,000/-

pursuant to the order of this Court dated 28.07.2011 in the trial

Court, the said trial Court shall deduct the grading cost of

`15,000/- from it and refund the balance amount to the depositor

in accordance with law and after his due identification.

14. With the said condition, the application filed under

Section 147 of the N.I. Act is allowed on the terms made above

and subject to the payment of grading cost, the parties are

permitted to settle the matter and consequently, the accused CRL.R.P. NO.695/2011

stands acquitted of the offence punishable under Section 138

of the N.I. Act in the present case. The trial Court to ensure

payment of the grading cost and to issue the release order of

the petitioner/accused, who is said to be in judicial custody in

this matter.

Accordingly, the petition stands disposed of.

Sd/-

JUDGE

KGR*