R.P Anjaneya Murthy vs Kumara Swamy Agencies
2021 Latest Caselaw 783 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY 2021

                               BEFORE

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

      CRIMINAL REVISION PETITION No.956 OF 2011

BETWEEN:

R.P. Anjaneya Murthy,
S/o. Prasanna Kumar,
Aged about 40 years,
Proprietor of Vayuputra Agencies,
Pepsi Dealer,
Near Town Co-operative Bank Ltd.
Sira, Tumkur District.
                                        .. Petitioner
(By Sri. Vivek S., Advocate)

AND:

1. Kumara Swamy Agencies by
   its Proprietor Smt. Chandrakala,
   W/o. V.S. Seetharamaiah,
   Mecca Rice Mill Road, Sira Town,
   Since dead by LRs.

a) V.S. Seetharamaiah,
    S/o. V.S. Subbaiah,
    Aged 61 years.

b)    V.S. Subbaraju
      S/o. V.S. Seetharamaiah,
      Aged about 37 years.
                                               Crl.R.P.No.956/2011
                                  2


Both are residents of M.R.M. Road,
Sira Town, Tumkur District.

c) Suma D/o. V.S. Seetharamaiah
   W/o. K.R. Ramakrishna,
   Aged 35 years,
   R/o. SIT Extension, Tumkur.
                                              .. Respondents
(By Sri. B.S. Govinda Swamy, Advocate)

                                    ****
       This Criminal Revision Petition is filed under Sections 397 of
Cr.P.C. praying to call for the records and set aside the judgment
and order dated 30-07-2011 made in Criminal Appeal No.107/2009
passed by the Fast Track Court-III at Tumkur, confirming the
judgment and order dated 03-08-2009 made in C.C.No.544/2004
passed by the Civil Judge (Jr.Dn.) & J.M.F.C. at Sira and allow this
revision petition with costs.

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

                             ORDER

The present revision petition has been filed by the accused

who was convicted by the Court of the learned Civil Judge (Jr.Dvn.)

and J.M.F.C. at Sira (hereinafter for brevity referred to as the "Trial

Court") in C.C.No.544/2004 for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

for brevity referred to as the "N.I. Act") and was sentenced to pay a

fine of `5,000/- and in default, to undergo simple imprisonment for Crl.R.P.No.956/2011

a period of six months. He was also directed to pay the cheque

amount to the complainant as compensation.

Aggrieved by the same, the accused preferred an appeal in

Criminal Appeal No.107/2009 in the Court of the Fast Track-III at

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

Court"), which by its impugned judgment dated 30-07-2011

dismissed the appeal, confirming the judgment of conviction and

order on sentence passed by the Trial Court.

Aggrieved by the impugned judgments and order on

sentence, the accused has preferred the present revision petition.

2. The summary of the case of the complainant in the Trial

Court is that, the complainant which is a Trading Company doing

business in Cements, Cold Drinks etc,, had given the dealership of

Pepsi Cola for Sira Taluk and had sold its business along with

stock-in-trade to the accused for consideration of a sum of

`4,29,521/- on 24-01-2004. The accused after paying a sum of

`1,09,521/-, had issued a cheque towards the balance

consideration of a sum of `3,20,000/- in the form of post dated Crl.R.P.No.956/2011

cheque bearing No.477340 drawn on Tumkur Grain Merchants Bank

Limited, Sira. When the complainant presented the said cheque on

the due date, the same came to be dis-honoured with banker's

endorsement of insufficiency of funds in the account of the drawer.

The complainant demanded the cheque amount by issuing a legal

notice for which also, the demand was not met, which constrained

her to institute a complaint against the accused for the offence

punishable under Sections 138 and 142 of the N.I. Act.

3. The respondents herein are the legal representatives of

the deceased complainant who came on record in the Trial Court.

Respondents are being represented by their counsel.

4. Learned counsels from both side are physically present in

the Court.

5. Learned counsels from both side file a joint memo, which

in fact, is an application seeking permission to compound the

offence under Section 147 of the N.I Act and also reporting the

settlement of the matter between the parties.

Crl.R.P.No.956/2011

6. In the joint memo filed on behalf of the petitioner and

respondents by their respective counsels, they have stated that the

parties have amicably settled the matter at the intervention of the

family members and the well wishers. A particular agreed sum,

which is `2,00,000/- (Rupees Two Lakhs Only) is said to have been

paid by the accused to the complainant towards settlement. In

view of the same, apart from seeking permission to compound the

offence under Section 147 of the N.I. Act, they have jointly prayed

to set aside the judgment of conviction and order on sentence

passed by the Trial Court and confirmed by the learned Sessions

Judge's Court. They have also prayed for refund of the amount of

`32,000/- said to have been deposited by the petitioner herein in

the Trial Court.

7. Learned counsels from both side made their supporting

submissions on the lines of the joint memo.

8. On perusal of the joint memo and after hearing the

submissions made by the learned counsels from both side, I am

convinced that the parties have settled the matter out of their own Crl.R.P.No.956/2011

volition with free consent and keeping their mutual interest under

consideration, as such, they may be permitted to compound the

offence under Section 147 of the N.I. Act.

9. Section 147 of N.I. Act has made every offence

punishable under the N.I. Act as compoundable. As such, there is

no bar for the parties in the proceeding to compound the offence.

However, at the same time the guidelines laid down by Hon'ble

Apex Court in Damodar S. Prabhu v. Sayed Babalal H reported

in AIR 2010 SC 1907 regarding imposing graded cost on litigant

also to be borne in mind. According to the said Judgment in

Damodar S. Prabhu's Case (supra), if the application for

compounding is made before the Sessions Court or High Court in

revision or appeal, such compounding is permitted to be allowed on

the common condition that the accused pays 15% of the cheque

amount by way of cost. Accordingly, keeping the joint application

for compounding and the guidelines given by the Hon'ble Apex

Court in Damodar S. Prabhu's case (Supra) and the

circumstance of the case on hand, I proceed to pass the following:-

Crl.R.P.No.956/2011

ORDER

[i] The joint memo (which is in the form of

application) filed by the petitioner's side under Section

147 of the Negotiable Instruments Act, 1881, is

allowed;

[ii] The parties to the present petition are

permitted to compound the offence, however, subject to

the petitioner herein (accused) paying a sum of

`48,000/- (Rupees Forty Eight Thousand Only) towards

graded cost in the registry of this Court, within a period

of ten days from today;

[iii] Subject to the payment of graded cost, the

judgment of conviction and order on sentence dated 03-

08-2009, passed by the learned Civil Judge (Jr.Dvn.)

and J.M.F.C. at Sira, in C.C.No.544/2004 is set aside

and consequently, the judgment dated 30-07-2011

passed by the Court of Fast Tract-III at Tumkur, in

Criminal Appeal No.107/2009, also stands set aside;

Crl.R.P.No.956/2011

[iv] The petitioner herein who was the accused

before the Trial Court is acquitted of the alleged offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881;

[v] If the alleged amount of `32,000/- (Rupees

Thirty Two Thousand Only) has been deposited in the

Trial Court by the accused, the same be appropriated as

a part payment towards the graded cost ordered today

and the balance amount of `16,000/- (Rupees Sixteen

Thousand Only) is payable by the petitioner/accused

within ten days from today.

[vi] Non-payment of the graded cost in its

entirety within the time is not a due compliance of

today's order.

[vii] However, this order of compounding of the

offence and acquittal of the petitioner herein would

come into operation and would enure to the benefit of

the petitioner, only after he deposits the graded cost as

ordered above, and in its entirety, within ten days from Crl.R.P.No.956/2011

today. In case of non-deposit of the said amount in its

entirety, today's order would not enure to the benefit of

the petitioner.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records immediately after ten days from today and

recording the payment or not of the graded cost. Needless to say

that, in case of non-payment of graded cost in its entirety, the trial

Court is to proceed further in accordance with law.

Sd/-

JUDGE

BMV*