Shrikant S/O. Narayan Naik vs Daivadnya Co-Operative Credit ...
2021 Latest Caselaw 486 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 8TH DAY OF JANUARY, 2021

                         BEFORE

         THE HON'BLE MR.JUSTICE K. NATARAJAN

       CRIMINAL REVISION PETITION NO.2090/2012

BETWEEN:

SHRIKANT S/O. NARAYAN NAIK,
AGED ABOUT 29 BUSINESSMAN,
R/O.TENKANKERI, ANKOLA,
TALUK : ANKOLA (U.K.),
DIST-KARWAR.
                                              ...PETITIONER
(BY SRI M.B.GUNDAWADE, ADVOCATE)

AND:

DAIVADNYA CO-OPERATIVE CREDIT SOCIETY LTD.,
KARWAR, BRANCH ANKOLA,
REPRESENTED BY ITS BRANCH MANAGER,
VIVEKANAND KAMALAKANT ANVEKAR,
AGED ABOUT 33 YEARS,
R/O.ANKOLA, TALUK : ANKOLA (U.K.).
                                              ...RESPONDENT
(RESPONDENT-SERVED)


     THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W.
SECTION 401 OF CR.P.C. AND PRAYED THAT THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE PASSED BY THE J.M.F.C.,
ANKOLA DATED 28.04.2007 PASSED IN C.C.NO.756/2004 FOR THE
                                    2




OFFENCES PUNISHABLE UNDER SECTIONS 138 OF N.I.ACT, WHICH
WAS CONFIRMED BY THE SESSIONS JUDGE, FAST TRACK COURT-
II, UTTARA KANNADA, KARWAR IN CRIMINAL APPEAL NO.85/2007
BE ORDERED TO BE SET ASIDE AND THE PETITIONER MAY KINDLY
ACQUITTED.

     THIS PETITION COMING ON FOR               HEARING, THROUGH
PHYSICAL HEARING, THIS DAY, THE                COURT MADE THE
FOLLOWING:

                               ORDER

This revision petition filed by the petitioner/accused under

Section 397 read with Section 401 of Cr.P.C for setting aside the

judgment of conviction and sentence passed by the J.M.F.C, Ankola

(hereinafter referred to as 'the trial Court', for short) in Criminal

Case No.756/2004 dated 28.04.2007 and the same was upheld by

the Sessions Judge, Fast Track Court-II, Uttara Kannada, Karwar

(hereinafter referred to as 'the first Appellate Court', for short), in

Criminal Appeal No.85/2007 dated 16.08.2011.

2. Heard the arguments of learned counsel Sri

M.B.Gundawade, appearing for petitioner/accused. Respondent/

complainant served, remained un-represented. The rankings of the

parties before the trial Court are retained for the purpose of brevity.

3. The factual matrix of the case of prosecution is that, the

accused approached the complainant-Society and borrowed loan of

`10,000/- on 16.02.2002 and he has repaid only a meager amount,

but he was due of `7,449/- and he was default in repayment of

loan, for that, he has issued a cheque in question bearing

No.821185, dated 10.04.2004 for `7,449/- drawn on Syndicate

Bank, Branch-Ankola. When the said cheque was presented for

encashment, it was dishonored with an endorsement "Insufficient

Funds". Thereafter, complainant-Society got issued a legal notice

dated 15.04.2004 to the accused. He has not claimed and not

repaid any amount. Hence, complaint under Section 200 of Cr.P.C.

filed by the complainant before the trial Court.

4. After recording of the sworn statement, trial Court took the

cognizance and summoned the accused. Later, accusation was read

over to him, he pleaded not guilty and complainant to prove his

case, he himself examined as P.W.-1-Vivekanand Kamalakar

Anvekar as an representative of Society and got marked total 09

documents. Statement of the accused under Section 313 Cr.P.C.

was recorded and accused denied all the incriminating evidence

made against him and contended that he has given blank cheque

for security purpose while getting the loan and the same was

misused by the complainant-Society and he himself examined as

D.W.-1, but not produced any document. After hearing the

arguments, the trial Court found the accused guilty and convicted

him for the offence punishable under Section 138 of the Negotiable

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

sentenced him to undergo simple imprisonment for one month and

to pay fine of `1,000/-, in default of payment of fine, he shall

further undergo simple imprisonment for one month. An amount of

`15,000/- was ordered as per Section 357 of Cr.P.C to pay as

compensation to the complainant.

5. Assailing the same, the accused filed appeal before the first

appellate Court in Criminal Appeal No.85/2007, which came to be

dismissed. Hence he is before this Court.

6. Learned counsel for the petitioner strenuously

contended that both the courts below committed an error in not

appreciating the evidence of the accused who has paid the money

and taken a defence that he has given a blank cheque as security

while borrowing the loan. The trial Court also committed an error

in passing the judgment and imposing fine of `1,000/- but directed

the petitioner/accused to pay compensation of `15,000/- which is

more than double the cheque amount and against the provisions of

Section 138 of NI Act and also Section 357(1) of Cr.P.C., therefore,

prayed for setting aside the same.

7. Learned counsel also contended that after passing of the

impugned orders by the courts below, the petitioner/accused has

already made payment to the respondent-society by paying

`12,522/- and obtained an acknowledgment which is produced to

the Court and the respondent has lost the interest in the case and

alternatively contended that even taking into consideration that if

the conviction is upheld, the fine amount shall be modified by

reducing the compensation in accordance with law, as there is

illegality in the sentence passed by the Court below. Hence,

prayed for allowing the petition.

8. Learned counsel for the petitioner produces a letter of

the respondent-society along with a receipt for `12,522/- issued to

the society.

9. Upon hearing the arguments and on perusal of the

records it goes to show that the accused borrowed loan of

`10,000/- from the respondent-society as hand loan and he has

defaulted in repaying some installments. It is also not in dispute

that issuance of cheque by the accused though he has taken a

contention that the blank cheque was issued to the complainant as

a security except the said contention he has not produced any

document or examined any other witness before the Court to show

that the blank cheque was given as a security at the time of

borrowing the loan. However, in view of the fact even if the

petitioner has borrowed the loan from the society it is not his case

that he has paid the entire amount and discharged the loan to the

society. Absolutely, there is no document produced to show that he

had repaid the entire amount. Therefore, mere taking a defence

that the blank cheque was issued as a security at the time of

borrowing the loan cannot be accepted without any positive

evidence being produced by the petitioner to show that he has

repaid the loan amount. Therefore, considering the evidence on

record, the trial court has rightly found the petitioner/accused guilty

of the offence punishable under Section 138 of NI Act. The first

appellate Court also on re-appreciation of the evidence on record

upheld the conviction and sentence passed by the trial Court which

does not call for interference.

10. However, as regards the sentence under Section 138 of

NI Act, the act provides for punishment which may be extended to

two years or with fine which may be twice the amount of the

cheque or with both. Discretion is given to the Court for imposing

sentence both fine as well as imprisonment. However, looking to

the sentence imposed by the trial Court, though the trial Court

imposed fine of `1,000/-, but compensation awarded is `15,000/-

independently. The trial Court ought to have imposed the fine

double the cheque amount and out of the fine amount, should have

ordered for compensation as per Section 357(1) of Cr.P.C.

However, the compensation must not exceed the cheque amount.

Therefore, the same requires modification.

11. However, looking to the fats and circumstances of the

case that since the petitioner has already paid `12,522/- to the

complainant Society and he has deposited fine of `1,000/- in the

trial Court and amount is a meager one and the petitioner has

undergone ordeal of trial from 2004 to till date, therefore,

considering the provision of Section 138 of NI Act, instead of

imposing any imprisonment, by modifying the same into fine of

`13,522/- it would meet the ends of justice.

12. Considering the facts and circumstances of the case, by

modifying the sentence passed by the trial Court imposed only fine

of `1,000/- to meet the end of justice. Accordingly, I pass the

following order:

The criminal revision petition is allowed in part. The finding

on conviction passed by the Courts below is confirmed. However,

the order of sentence of simple imprisonment of one month is set

aside and is modified that the accused is sentenced to pay fine of

`13,522/- in default he shall undergo one month imprisonment for

the offence under section 138 of NI Act. Out of the said amount, a

sum of `12,522/- is ordered to be paid as compensation to the

complainant which is already paid by the accused to the

complainant has to be adjusted and the accused already deposited

`1,000/- in the trial Court.

Accordingly, criminal revision petition is disposed of.

Office is directed to send a copy of this order to the trial

Court.

Sd/-

JUDGE

Ckk Kmv from para 6 on wards