M G Raju vs H T Ravindra Kumar
2021 Latest Caselaw 54 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF JANUARY, 2021

                            BEFORE

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

  CRIMINAL REVISION PETITION No.586 OF 2013


BETWEEN:

M.G. Raju
S/o Late Madhvanda Rao,
Aged about 54 years,
Senior Technician,
C/o INSAT, M.E.F.,
HASSAN - 573 201.                             :PETITIONER

(By Sri Chethan B, Advocate)

AND:

H.T. Ravindra Kumar
S/o Thimmappa,
Aged about 45 years,
Resident of Vedio Palace,
Saraswathipuram,
Salagame Road,
Hassan - 573 201.                            :RESPONDENT

(Respondent is served)

       This Criminal Revision Petition is filed under Section
397 read with S.401 of Cr.P.C. praying to set aside the
Judgment dated 16.10.2012 passed by the II Additional
                                                Crl.R.P.No.586/2013
                               2


Civil Judge and JMFC at Hassan in C.C. No.1131/2000 and
the Judgment dated 19.03.2013 passed by the Addl.
Sessions Judge and P.O., FTC - I at Hassan in Crl. A.
No.154/2012 and such other order as the Court deems fit
in the circumstances of the case.


      This    Criminal   Revision   Petition   coming     on   for

Admission through Physical Hearing/Video Conferencing

this day, the Court made the following:


                           ORDER

Present revision petition is by the accused who was

convicted for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (for brevity,

hereinafter referred to as 'the N.I. Act'), by the learned II

Addl. Civil Judge & JMFC, Hassan in C.C. No.1131/2000 by

its impugned Judgment of conviction and Order on

sentence dated 16.10.2012. He preferred an appeal

challenging his conviction, in Criminal Appeal

No.154/2012 in the Court of learned Additional Sessions

Judge and the Presiding Officer, Fast Track Court - I at Crl.R.P.No.586/2013

Hassan (for brevity, 'Sessions Judge's Court') which Court

by its impugned Judgment dated 19.03.2013 dismissed the

appeal confirming the Judgment passed by the Trial Court

in C.C. No.1131/2000 dated 16.10.2012. Aggrieved by the

same, the accused has preferred the present revision

petition.

2. The present respondent has been the

complainant in the Trial Court. The summary of the case

of the complainant in the Trial Court is that the accused

being known to him had availed a loan of `18,000/- from

him on 03.02.1996 to meet the expenses of his sister's

marriage. Though he had agreed to repay the loan amount

within eight months, but he did not repay the said loan.

However, towards the repayment of the loan, he issued a

cheque to the complainant, bearing No.755481 dated

05.10.1996 drawn on State Bank of India, Hassan Branch.

When the said cheque was presented by the complainant

through his banker, the same came to be returned with

the banker's endorsement "payment stopped by drawer".

Crl.R.P.No.586/2013

It was thereafter the complainant got issued a legal notice

to the accused on 16.10.1996 demanding the payment of

the cheque amount. Even after the said legal notice, the

accused did not pay the cheque amount. Hence, the

complainant was constrained to institute the complaint

against him.

The accused appeared in the Trial Court and

contested the matter. After recording the evidence led by

both side and hearing the arguments, the Trial Court by its

Judgment dated 16.10.2012 convicted the accused for the

alleged offence punishable under Section 138 of the N.I.

Act and sentenced him to undergo simple imprisonment for

a period of one year and also to pay a fine of `21,000/-. In

default to make payment of the fine amount, the accused

was ordered to undergo simple imprisonment for a period

of six months. Out of the fine amount of `21,000/-, a sum

of `18,000/- was directed to be paid to the complainant

and remaining sum of `3,000/- was directed to be paid to

the State. Challenging the said Judgment of conviction and Crl.R.P.No.586/2013

Order on sentence, the petitioner preferred Crl.A.

No.154/2012 in the Sessions Judge's Court which Court by

its Judgment dated 19.03.2013, dismissed the appeal

while confirming the Judgment of conviction and Order on

sentence passed by the Trial Court. It is against the said

Judgments of conviction and Order on sentence the

accused has preferred the present revision petition.

3. In spite of service of notice upon the

respondent, he has remained unrepresented.

4. Learned counsel for the petitioner in his single

sentence argument submitted that he would not challenge

the impugned Judgment of conviction passed by the Trial

Court which was affirmed by the Appellate Court, however,

he would only request this Court to take a lenient view on

the order on sentence. He further submits that the

petitioner / accused is ready to pay the entire fine amount,

but however, the sentence of imprisonment may be set

aside. In his support, he relies upon a Judgment of the Crl.R.P.No.586/2013

Hon'ble Apex Court in METERS AND INSTRUMENTS

PRIVATE LIMITED AND ANOTHER Vs. KANCHAN MEHTA,

reported in (2018) 1 SCC 560 and draws the attention of

this Court to paragraph 11 of the said Judgment.

5. In view of the above submission, though the

matter is listed for admission, it is heard for final disposal.

Perused the materials placed before this Court including

the impugned Judgment passed by both the Trial Court

and Sessions Judge's Court.

6. In view of the fact that the petitioner through

his counsel has submitted that he would not dispute or

challenge his conviction for the offence punishable under

Section 138 of the N.I. Act but would only request this

Court to take a lenient view so far as the sentence of

imprisonment is concerned, it is not required to go into the

merits of the case so far as conviction of the petitioner for

the offence under Section 138 of the N.I. Act is concerned.

Since the revision petitioner himself now confines the

present petition only in challenging the sentence of Crl.R.P.No.586/2013

imprisonment but not his conviction for the offence

punishable under Section 138 of the N.I. Act as well the

order of sentence to pay a fine amount of `21,000/-, it is

taken that the said aspect of Judgment of conviction and

Order on sentence imposing a fine of `21,000/- be need

not revisited or revised.

7. The contention of the learned counsel for the

petitioner is that since the petitioner / accused is ready

and willing to pay the entire fine amount without any

further delay, the Court may take a lenient view in the

matter. He relies upon KANCHAN MEHTA's case (supra) in

his support and draws the attention of the Court to

paragraph 11 of the said Judgment which reads as below:

" 11. While it is true that in Subramanium Sethuraman versus State of Maharashtra [(2004) 13 SCC 324] this Court observed that once the plea of the accused is recorded under Section 252 of the CrPC, the procedure contemplated under Chapter XX of the CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to Crl.R.P.No.586/2013

the 2002 amendment. The statutory scheme post-

2002 amendment as considered in Mandvi Coop. Bank [(2010) 3 SCC 83] and J.V. Baharuni [ (2014) 10 SCC 494] has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 CrPC which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the CrPC are applicable "so far as may Crl.R.P.No.586/2013

be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context."

8. A reading of the said Judgment more

particularly the paragraph 11 therein would clearly go to

show that the Hon'ble Apex Court has made the

observation to the effect that the scope of Section 138 of

the N.I. Act is not for punishing drawer of a cheque whose

conduct is reasonable or where compensation to the

complainant to meet the ends of justice was made

specifically in those circumstances, where the accused

pleads himself guilty under Section 252 Cr.P.C. It is at that

stage the Hon'ble Apex Court observed that the

punishment need not be the object of Section 138 of the

N.I. Act when the accused voluntarily pleads guilty for the

alleged offence.

9. Whereas, in the instant case, a perusal of the

materials placed before me, go to show that at the earliest Crl.R.P.No.586/2013

point of time that was on 07.09.2006, the accused was

convicted for the offence punishable under Section 138 of

the N.I. Act and was sentenced to undergo simple

imprisonment for a period of two months and also to pay a

fine of `3,000/- for the offence punishable under Section

138 of the N.I. Act. It appears that he challenged the said

Judgment of conviction and Order on sentence in Crl. A.

No.108/2006 before learned Additional Sessions Judge at

Hassan, which Court by its Judgment dated 01.03.2007

appears to have allowed the appeal in part and by setting

aside the Judgment of conviction had remanded the matter

back to the Trial Court. It is thereafter the Trial Court

proceeded with the matter and pronounced the impugned

Judgment of conviction and Order on sentence on

16.10.2012. Subsequently, challenging the said Judgment

of conviction of the Trial Court dated 16.10.2012, the

present petitioner preferred criminal appeal before the

Sessions Judge's Court in Crl. A. No.154/2012 which came Crl.R.P.No.586/2013

to be dismissed on its merit by the Judgment dated

19.03.2013.

10. Thus it is crystal clear that the revision

petitioner / accused had made a voyage of two rounds

before the Trial Court and the Sessions Judge's Court in

the matter and prior to the remanding of the matter by the

Sessions Judge's Court and subsequent to the remand of

the matter also he was convicted and the same was

confirmed. Therefore, the accused apart from not pleading

guilty under Section 252 Cr.P.C. has made futile exercise

from the year 2000 till date in proving his alleged

innocence towards the alleged offence but he has failed in his

repetitive attempts. In such a circumstance, I do not find

any reasons for setting aside the sentence of imprisonment

in toto. Considering the fact that at the earliest point of

time when he was convicted for the first time in the same

case by the Trial Court on 07.09.2006, he was sentenced

to undergo imprisonment only for two months and also

imposed with fine and in the impugned Judgment passed Crl.R.P.No.586/2013

by the Trial Court, it has not given any reason for

sentencing him to undergo simple imprisonment for one

year and also considering the fact that even the Sessions

Judge's Court also has not given its reasoning for

confirming the said sentence of imprisonment, I am of the

view that the said sentence of imprisonment of one year as

simple imprisonment apart from payment of the fine

amount is not proportionate to the gravity of the proven

guilt against the accused. On the other hand, it is slightly

exorbitant to the proven guilt. Therefore, considering the

facts and circumstances of the case and also of the fact

that the accused made two trips before the Trial Court as

well as the Session Judge's Court and thus has made a

futile exercise in ensuring the setting aside of his

conviction which consequently has made the complainant

to be deprived of the cheque amount for more than two

decades, I am of the view that confining the sentence only

to the fine amount would not meet the ends of justice and

imposing the sentence of imprisonment is also warranted Crl.R.P.No.586/2013

in the circumstances of the case. However, one year

simple imprisonment imposed since being on the higher

side, the circumstances of the case warrant confining it to

two months simple imprisonment which was originally and

at the earliest point of time imposed against him by the

Trial Court in its Judgment dated 07.09.2006 and that

would be reasonable. Accordingly, I proceed to pass the

following:

ORDER

The revision petition is partly allowed. Though the

Judgment of conviction for the offence punishable under

Section 138 of the N.I. Act holding the accused / petitioner

guilty of the alleged offence is confirmed, however,

the Order on sentence is modified. While confirming the

fine amount imposed at `21,000/- against the

accused/petitioner, the sentence of imprisonment is

reduced from one year to two months and the default

sentence to one month's simple imprisonment. The rest of

the finding of both the Trial Court as well as the Session Crl.R.P.No.586/2013

Judge's Court in the apportionment of the fine amount

would remain unaltered.

Registry to transmit copy of this Judgment to the

Trial Court and Session Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

sac*