Smt Divya R vs Sri B Veerabhadraiah
2022 Latest Caselaw 10711 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JULY, 2022

                              BEFORE

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

 CRIMINAL REVISION PETITION No.777 OF 2021
BETWEEN:

Smt. Divya R.
W/o. R. Nithyananda,
Aged about 36 years,
Residing at
No.111, 36th 'D' Main,
3rd Main, 6th Block,
Banashankari III Stage,
Kathriguppe,
Bengaluru - 560085.
                                                  .. Petitioner
(By Smt. Niveditha Satish, Advocate)

AND:

Sri.B. Veerabhadraiah,
S/o. Late K. Basappa,
Aged about 62 years,
Residing at:
No.48, 1st Main, 4th Cross,
Sameerapura,
K.G. Nagar,
Bengaluru - 560018.
                                                   ..Respondent
(By Sri. Kumar, Advocate)

                                  ***
       This Criminal Revision Petition is filed under Section 397
and Section 401 of the Code of Criminal Procedure, 1973,
                                                      Crl.R.P.No.777/2021
                                   2


praying to call for the entire records in Crl.Appeal No.1587/2019
on the file of the LXVII Addl. City Civil and Sessions Judge,
Bengaluru City (CCH-68) and set aside the order of dismissal
dated 23-03-2021 passed therein by the LXVII Addl. City Civil
and Sessions Judge, Bengaluru City (CCH-68) in Criminal Appeal
No.1587/2019    confirming    the       order   of   conviction   dated
29-06-2019    passed   by    the       XII   A.C.M.M.   Bengaluru     in
C.C.No.21064/2017, for the offences punishable under Section
138 of the N.I. Act; allow this revision petition and dismiss the
complaint filed by the respondent on the file of the XII A.C.M.M.
Bengaluru in C.C.No.21064/2017 and acquit the petitioner and
grant such other or further orders as this Court deems fit to
grant under the circumstances and in the interest of justice and
equity.


      The Criminal Revision Petition coming on for Orders
through physical hearing/video conferencing hearing, this day,
the Court made the following:


                            ORDER

The present revision petition has been filed by the

accused, challenging the judgment of conviction and order

on sentence passed by the Court of the XII Additional Chief

Metropolitan Magistrate, Bengaluru (hereinafter for brevity

referred to as "the Trial Court") in C.C.No.21064/2017,

holding the accused guilty for the offence punishable under Crl.R.P.No.777/2021

Section 138 of the Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as the "N.I. Act"), which

was further confirmed by the Sessions Judge's Court in the

appeal filed by her. Challenging the impugned judgments

of conviction and order on sentence passed by both the

Courts, the petitioner has filed the present revision petition.

2. Learned counsels from both side along with their

respective clients, as identified by their learned counsels,

are physically present in the Court.

3. Learned counsels from both side have filed a joint

application - I.A.No.1/2022, under Section 147 of the N.I.

Act, along with the joint affidavit of the petitioner (accused

in the Trial Court) and the respondent (complainant in the

Trial Court), reporting the settlement between them by way

of compromise and seeking acquittal of the petitioner herein

(accused) in C.C. No.21064/2017.

4. Learned counsels for the parties also make their

submission on the lines of the joint application and the joint

affidavit.

Crl.R.P.No.777/2021

5. The sum and substance of the joint application as

well as the sworn joint affidavit of the parties is that, the

parties have settled the matter amicably stating that, the

petitioner (accused) has agreed to pay and the respondent

(complainant) has agreed to receive a total sum of

`4,00,000/- as full and final settlement of the amount

towards the present litigation, in which, a sum of

`2,75,000/- is now paid by the petitioner to the respondent

(complainant) through a Demand Draft bearing No.023419

dated 12-07-2022, drawn in favour of the respondent on

Sree Thyagaraja Co-operative Bank Limited, Banashankari

3rd Stage, Bangalore, and the remaining sum of `1,25,000/-

which is said to have been deposited in the Trial Court by

the petitioner herein (accused) under Q No.11612/2021-22

dated 14-01-2022 for an amount of `25,000/- and another

Q No.6761/2019-20 dated 26-07-2019, for an amount of

`1,00,000/-, is also agreed to be released in favour of the

respondent herein(complainant), for which, the petitioner

(accused) has no objection. The respondent acknowledges Crl.R.P.No.777/2021

the receipt of the Demand Draft and agrees to withdraw

the said amount of `1,25,000/- said to have been deposited

in the Trial Court, after due compliance of any procedural

requirements to be made by the petitioner, if any, at the

earliest. At the same time, respondent (complainant)

submits his 'no objection' for acquittal of the petitioner

(accused) in the instant case.

6. The enquiry made with the parties who are

physically present convinces the Court that both the parties

out of their free consent and volition and in their best

interest have settled the matter amicably which is further

corroborated by the submissions made by their learned

counsels. As such, I am of the view that on the terms of

the said joint application and also joint affidavit, the parties

be permitted to compound the offence under Section 147 of

the N.I. Act, however, subject to the payment of the graded

cost by the petitioner/accused.

7. Section 147 of the N.I. Act has made every

offence punishable under the N.I. Act as compoundable. As Crl.R.P.No.777/2021

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 Vs. Sayed Babalal H reported in AIR 2010

SUPREME COURT 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 graded cost.

8. No doubt, as per the above said judgment, the

petitioner (accused) is liable to pay the graded cost at 15%

of the cheque amount, which comes to `75,000/-.

However, the Hon'ble Apex Court in the case of Madhya

Pradesh State Legal Services Authority Vs. Prateek Jain

and another reported in (2014) 10 Supreme Court Cases

690, has observed that, any matter is settled by the parties Crl.R.P.No.777/2021

including one for the offence under Section 138 of the N.I.

Act, the Lok Adalath has got discretion to reduce or waive

the graded cost in special cases.

9. It is stated in the joint application as well in the

joint affidavit that, the petitioner (accused) is a poor widow

and economically in a very poor condition. After getting

employment in 'D' Group category in the State Government,

on compassionate grounds, she has to eke her livelihood

with a meagre salary in which she has to maintain her

family including meeting education expenses of her Pre-

University College going son. The respondent

(complainant) also has supported the said contention in the

joint affidavit.

10. Considering the statements made in the joint

application and also the reasons shown by the petitioner, I

am of the view that though as per Damodar's case (supra),

the graded cost upon the cheque amount which is a sum of

`5,00,000/- would be `75,000/-, however, as a special Crl.R.P.No.777/2021

circumstance and also considering the economically poor

condition of the petitioner, confining to the present case

only, the graded cost is reduced to `40,000/- in this case.

The said graded cost of `40,000/- is now tendered by

the petitioner (accused) through a Demand Draft bearing

No.023420 dated 12-07-2022, for a sum of `40,000/-,

drawn in favour of the Registrar General, the High Court of

Karnataka, Bangalore, on Sree Thyagaraja Co-operative

Bank Limited, Banashankari 3rd Stage, Bangalore.

A statement to that effect is also made by the

petitioner in the joint affidavit. Hence, the said demand

draft is accepted towards the graded cost payable by the

petitioner.

11. Accordingly, taking into consideration the joint

application and the joint affidavit filed by both side, the

guidelines given by the Hon'ble Apex Court in Damodar S.

Prabhu's case (supra), observations made in Prateek

Jain's case (supra) and also the special circumstance of Crl.R.P.No.777/2021

the case on hand, I.A.No.1/2022 is allowed. The parties are

permitted to compound the offence under Section 147 of

the N.I. Act. The matter is settled between the parties as

per the terms mentioned in the joint application and the

joint affidavit filed by both side and the petitioner herein

who was accused in the Court of the XII Additional Chief

Metropolitan Magistrate, Bengaluru, in C.C.No.21064/2017

is acquitted of the offence punishable under Section 138 of

the N.I. Act.

Accordingly, the present revision petition stands

disposed of.

The amount said to have been deposited by the

present petitioner/accused in the Trial Court in

C.C.No.21064/2017, is ordered to be released in favour of

the respondent (complainant in the Trial Court), without any

further orders by this Court, however, after his due

identification and in accordance with law.

Registry to take on record the graded cost of

`40,000/- paid through Demand Draft, as observed above.

Crl.R.P.No.777/2021

Registry to transmit a copy of this order to both the

Trial Court and also to the Sessions Judge's Court along

with their respective records, immediately.

Sd/-

JUDGE

BMV*