Siddayya S/O Mahadevayya Math vs Bhimashi Malkappa Muchchandi
2022 Latest Caselaw 2831 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 21 ST DAY OF FEBRUARY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200002/2015
                         C/W
 CRIMINAL REVISION PETITION NO.200059/2014

IN CRL.A.NO.200002/2015:

BETWEEN:

SIDDAYYA S/O MAHADEVAYYA MATH,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: NEAR CENTRAL BUS STAND,
JOD GUMBAZ ROAD, BIJAPUR.
                                         ... APPELLANT

(BY SRI R.S.LAGALI, ADVOCATE)


AND:

BHIMASHI MALAKAPPA MUCCHANDI,
AGE: 54 YEARS, OCC: BUSINESS,
PROPRIETOR MALLIKARJUN ELECTRICALS,
NEAR CENTRAL BUS STAND,
JOD GUMBAZ ROAD, BIJAPUR.
                                       ... RESPONDENT

(BY SRI SHIVANAND PATTANASHETTI, ADVOCATE)
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     THIS   CRIMINAL    APPEAL   IS   FILED  UNDER
SECTION 378(4) OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 12.08.2014 PASSED BY
THE III ADDL. SESSIONS COURT, BIJAPUR IN CRIMINAL
APPEAL NO.64/2007 TO THE EXTENT OF REDUCTION OF
THE FINE AMOUNT IMPOSED BY I JMFC COURT BIJAPUR,
IN CRIMINAL CASE NO.965/2004 AND RESTORE THE
JUDGMENT & ORDER OF CONVICTION DATED 06.07.2007
PASSED BY I JMFC COURT, BIJAPUR IN CRIMINAL CASE
NO.965/2004 AND AWARD JUST COMPENSATION TO THE
APPELLANT.


IN CRL.R.P.NO.200059/2014:

BETWEEN:

BHIMASHI MALAKAPPA MUCCHANDI,
AGE: MAJOR, OCC: BUSINESS,
PROPRIETOR MALLIKARJUN ELECTRICALS,
NEAR CENTRAL BUS STAND,
JOD GUMBAZ ROAD, BIJAPUR.
                                      ... PETITIONER

(BY SRI SHIVANAND V.PATTANSHETTI, ADVOCATE)


AND:

SIDDAYYA S/O: MAHADEVAYYA MATH,
AGE: MAJOR, OCC: LIQUOR BAR BUSINESS,
PROPRIETOR SHIVAM LIQUOR BAR,
NEAR CENTRAL BUS STAND,
JOD GUMBAZ ROAD, BIJAPUR.
                                    ... RESPONDENT

(BY SRI R.S.LAGALI, ADVOCATE)
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     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT DATED 12.08.2014 PASSED BY
THE   III  ADDL.  SESSIONS    JUDGE,  BIJAPUR    IN
CRL.A.NO.64/2007 AND FURTHER BE PLEASED TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 06.07.2007 PASSED BY THE JMFC-I
COURT BIJAPUR IN C.C.NO.965/2004 FOR THE OFFENCE
PUNISHABLE    UNDER   SECTION   138  OF    N.I.ACT,
CONSEQUENTLY ACQUIT THE PETITIONER.

     THE ABOVE APPEAL AND THE REVISION PETITION
ARE COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard Sri R.S.Lagli learned counsel for the appellant

and Sri Shivanand V.Pattanshetti, learned counsel for the

respondent.

2. After hearing for sometime, Sri Shivanand

V.Pattanashetti, learned counsel for the revision petitioner

files a memo.

3. Memo reads as under :-

"Herein the Advocate for the petitioner submitting as follows :-

In the above said case petitioner was stood as a Accused before the Trial Court.

However, petitioner already paid the Rs.40,000/- before the Trial Court, remaining Rs.1,60,000/- amount is to be paid in three installments i.e., on or before 21.04.2022 petitioner would pay Rs.54,000/-, on or before 21.06.2022 would pay Rs.53,000/- and on or before 21.08.2022 would pay remaining Rs.53,000/- amount as per settlement between petitioner and respondent."

4. However, Sri R.S.Lagali, learned counsel for

the appellant/complainant submits that, time prayed by

the accused to pay the balance fine amount is too long in

view of the fact that the transaction is of the year 2004.

5. The appeal and the revision petition are filed

by the complainant and the accused respectively seeking

modification of the order passed by the III Addl. Sessions

Judge, Vijayapur in Criminal Appeal No.64/2007 dated

12.08.2014 whereby the order of sentence passed in

C.C.No.965/2004 was modified by the learned Judge in the

first Appellate Court.

6. The operative portion of the order of the

learned Magistrate reads as reads under :-

"Accused is convicted U/s 255(2) of Cr.P.C for the offence punishable U/s 138 of the N.I.Act.

Accused is sentenced to undergo S.I for 6 months and to pay fine ofRrs.2,40,000/-.

In default of payment of fine the accused shall undergo S.I for further period of 3 months.

His bail bond stands cancelled.

Out of fine amount recovered, amount of Rs.2,30,000/- shall be paid to complainant towards compensation."

7. The operative portion of the order of the

learned Judge in the first Appellate Court reads as under :-

"The appellant/accused is sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,30,000/- and out of the said fine amount Rs.1,20,000/- be paid to the respondent/ complainant as compensation under Section 357(3) of Cr.P.C and the balance fine amount of Rs.10,000/- be paid to the state. The appellant/accused in default

to pay a fine amount, order to undergo simple imprisonment for 3 months for the offence punishable under Section 138 of the N.I.Act.

The impugned conviction judgment and order of sentence dated 06.07.2007 passed by the learned JMFC I Court, Bijapur is stands modified as indicated above.

The office is hereby directed to send back the LCR to the trial court along with copy of this judgment."

8. This court heard the arguments of both sides.

In view of the memo filed, the liability of the

respondent/accused need not be gone into by this court in

these two matters. The transaction is of the year 2004.

Taking note of the fact that the prevailing pandemic

COVID-19 and also a sum of `40,000/- is deposited by the

accused/revision petitioner and fairly submitted before this

court that he would pay the balance sum of `1,60,000/-

towards the liability covered under the cheque, this court

is of the considered opinion that matter be put at rest by

accepting the memo. No doubt, the time that is sought for

by the accused is upto 21.08.2022 per se appears to be

little long having regard to the transaction being of the

year 2004. Taking note of the fact that for the last two

years the business transactions have practically come to

stands still, in view of the prevailing pandemic and also

taking note of the fact that the health condition of the

accused who has said to have been suffered serious ill-

health, in the peculiar facts and circumstances of this case,

if the memo is accepted, ends of justice would be met.

Hence, pass the following :

ORDER

The Criminal Appeal and the Revision Petition are

disposed of.

The amount of `40,000/- which is in the form of

deposit before the trial court is ordered to be withdrawn by

the complainant forthwith under due identification.

The order of the learned Magistrate modified by the

first Appellate Court is further modified, directing the

accused to pay in all a sum of `2,00,000/- towards the

dishonour of the cheque in terms of the memo filed by the

accused dated 21.02.2022.

Further, the amount of `1,60,000/- is agreed to be

paid as under ;-

1. `54,000/- on or before 21.04.2022

2. `53,000/- on or before 21.60.2022

3. `53,000/- on or before 21.08.2022

If the accused fails to pay the said sum of

`1,60,000/-, the order of the learned trial Magistrate

stands restored.

If the above payments are made, the imprisonment

ordered by the learned Magistrate confirmed by the

learned Judge in the first Appellate Court also stands set

aside.

Ordered accordingly.

Sd/-

JUDGE

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