Purogen Industries vs M/S Classic Ply Wood And Hardwares
2022 Latest Caselaw 8149 Kant

                              -1-




                                     CRL.P No. 100642 of 2022


          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH
        DATED THIS THE 6TH DAY OF JUNE, 2022
                           BEFORE
       THE HON'BLE MR JUSTICE V.SRISHANANDA
     CRIMINAL PETITION NO.100642 OF 2022 (482)

BETWEEN:

1.    PUROGEN INDUSTRIES
      BY ITS PARTNER POOJA W/O. RAMACHANDRA KATTI
      AGE. 38 YEARS, OCC. BUSINESS,
      R/O. INDUSTRIAL PLOT NO.23,
      TARIHAL, INDUSTRIAL AREA,
      1ST PHASE, TARIHAL, HUBBALLI-580009.

2.    SMT. POOJA W/O. RAMACHANDRA KATTI,
      PARTNER PUROGEN INDUSTRIES,
      AGE. 38 YEARS, OCC. BUSINESS,
      R/O. INDUSTRIAL PLOT NO.23,
      TARIHAL, INDUSTRIAL AREA,
      1ST PHASE, TARIHAL, HUBBALLI-580009.

3.    RAMACHANDRA N.KATTI,
      PARTNER PUROGEN INDUSTRIES,
      AGE. 38 YEARS, OCC. BUSINESS,
      R/O. INDUSTRIAL PLOT NO.23,
      TARIHAL, INDUSTRIAL AREA,
      1ST PHASE, TARIHAL, HUBBALLI-580009
                                                 ...PETITIONERS
(BY SRI M.L.VANTI FOR SRI V.M.SHEELVANT, ADV.)

AND:

      M/S CLASSIC PLY WOOD AND HARDWARES
      PROP. MAHADEVSA LAXMANSA HABIB
      AGE. 64 YEARS, OCC. BUSINESS,
      R/O. PENDAR GALLI, DAJIBANPET ROAD,
      HUBBALLI-580009.
                                                 ...RESPONDENT
(BY SRI S.S.NIRANJAN, ADV.)
                                -2-




                                       CRL.P No. 100642 of 2022


      THIS CRIMINAL PETITION IS FILED UNDER SEC. 482 OF
CR.P.C. PRAYING TO QUASH THE ORDER DATED 11.02.2022 PASSED
IN CRIMINAL APPEAL NO.5017/2022 BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD,           SITTING AT
HUBBALLI IN SO FAR AS DIRECTING THE PETITIONERS/ACCUSED
NO.1 TO 3 TO DEPOSIT 20 PERCENT OF FINE AMOUNT.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:

                             ORDER

Heard Sri M.L.Vanti learned counsel for the

petitioners.

2. This petition is filed by the petitioners under

Section 482 of the Criminal Procedure Code with the

following prayer.

"WHEREFORE, it is most humbly prayed that this Hon'ble Court be pleased to quash the order dated 11/02/2022 passed in Criminal Appeal No.5017/2022 by the V Additional District and Sessions Judge, Dharwad, sitting at Hubballi in so far as directing the petitioners/accused No.1 to 3 to deposit 20% of fine amount to meet the ends of justice.

Grant such other reliefs as deemed fit in the circumstances of the case and in the interest of justice."

CRL.P No. 100642 of 2022

3. Brief facts of the case are as under:

The petitioners herein suffered an order of conviction

in C.C.No.2178/2017. Being aggrieved by the order

passed by the learned Magistrate, the petitioners filed an

appeal in Crl.A.No.5017/2022 interalia seeking suspension

of sentence.

4. Learned judge in the First Appellate Court after

hearing the petitioners, passed an order on 11.02.2022,

which reads as under:

"Being aggrieved from the conviction Judgment and order of sentence of fine dated 11.1.2022 passed in C.C No.2178/2017 by the J.M.F.C-I Court, Hubballi, by holding him as guilty for the offence U/Sec.138 of N.I. Act, the accused has preferred this appeal U/Sec.374(3) of Cr.P.C.

Along with the an appeal, an application u/Sec.389 of Cr.P.C was also filed by seeking to suspend the operation and execution of the sentence passed by the learned trial Judge in C.C.No.2178/2017 dated 11.01.2022 until disposal of the appeal.

CRL.P No. 100642 of 2022

Heard the arguments of the learned counsel for the appellant on application. Learned counsel the said for the appellant has vehemently contended that the appellant has the good substantial, and strong grounds for succeeding in this appeal and in all probabilities he is likely to succeed in this appeal. All these facts were brought into the knowledge of the trial court, but the Trial Court has failed to consider the same and committed an error by convicting the accused for the offence u/Sec. 138 of N.I.Act. The appeal is a right. Till disposal of the appeal if the order of sentence of fine is not stayed, the very purpose of filing the appeal would get defeats. Hence, prayed to allow the application and to suspend the sentence of fine by imposing any conditions.

After hearing the arguments, this court found that, against to the conviction and order of imposition of fine the accused has preferred this appeal, which is a right of the appellant. If the order of sentence of fine is not suspended until disposal of the appeal, the very purpose of filing of appeal would get defeats. On that ground, this court of the opinion that, by imposing condition to eposit the part fine amount, if the application is allowed and order of sentence is suspended, no hardship would be caused to anybody.

CRL.P No. 100642 of 2022

On these grounds, the application filed u/Sec.389 of Cr.P.C is hereby allowed on the condition that appellant shall deposit 20% of the total fine amount awarded by the trial court within 30 days from today. Also directed to execute the personal bond for the total fine amount with like sum surety.

If the Appellant fails to comply the order of this court by depositing the part fine amount, the order of stay of sentence of fine passed by this court will get cancels automatically.

Issue notice to the respondent.

Call for TCR and reporting the compliance.

Call on: 28.2.2022"

5. Being aggrieved by the direction to pay 20% of

the cheque amount for suspension of sentence, the

present petition is filed.

6. In the petition, the following grounds have

been raised.

• "It is submitted that the very order of conviction passed by the learned Magistrate in so far as imposing maximum fine without there being any

CRL.P No. 100642 of 2022

cogent material to show that the petitioners are owe an amount as mentioned in the Complaint. Hence order imposing of condition for payment of 20% percent of fine is erroneous.

• Petitioners submit that the complainant has not produced any documents viz vouchers, Bills or any other documents to prove that the accused persons are under legal obligation to pay debts. The cash credit bills produced by the complainant are not tailing. Hence the order of conviction imposing double the cheque amount is bad in law.

• The petitioners further submit that the complainant has taken one cheque and blank Bond at the beginning of the transaction as a security and now same is being misused by the complainant to enrich himself unjustly.

• Petitioners submit that section 148 of NI Act reads as fallows;

"148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per

CRL.P No. 100642 of 2022

cent. of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this sub section shall be in addition to any interim compensation paid by the appellant under section 143A.

(2) The amount referred to in sub-

section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant

(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court

CRL.P No. 100642 of 2022

on sufficient cause being shown by the complainant.".

It is submitted that on careful reading of the section 148 of NI act it gives the discretion to the appellate court to direct the appellant to pay minimum 20% of Compensation or fine amount as defined in Section. 357 of the Cr.P.C.

In the instant case there is an ambiguity as to the compensation amount imposed by the learned trial Judge. The compensation has to be computed as per the provision of section 357 of Cr.P.C. The entire fine amount cannot be taken as compensation amount and Appellate court without considering facts cannot direct to deposit unreasonable compensation amount at the time of suspending sentence. Same is against the law laid down by the Hon'ble Apex Court in the case of Dilip S.Dahanukar V/s. Kotak Mahindra Co.Ltd.and another reported in 2007(6) SCC 528.

• Petitioner undertakes that they are ready to deposit any reasonable amount fixed by this Hon'ble Court. The appellate court has not assigned reasonable grounds for imposing such a condition and thus the order impugned suffers from non-application of mind.

CRL.P No. 100642 of 2022

• It is submitted that, looking from any angle the file of the learned Magistrate is unsustainable either on facts or in Law, hence the same requires interference by this Hon'ble Court to meet the ends of justice."

7. Reiterating the grounds urged in the petition,

Sri M.L.Vanti, learned counsel for the petitioners

contended that, the cheque in question was in a sum of

Rs.12,50,000/- and learned Magistrate while convicting

the petitioners, directed that, Rs.25,00,000/- is to be paid

as fine, which is incorrect and entire Rs.25,00,000/- was

also ordered to be paid as compensation in terms of

Section 357 of Cr.P.C. which is incorrect. He also

contended that, imposing fine double the cheque amount

as the fine is uncalled for in the facts and circumstances of

the case and 20% of Rs.25,00,000/- would amount to

Rs.5,00,000/- and deposit of Rs.5,00,000/- for suspension

of sentence has resulted in great hardship to the

petitioners and thus sought for allowing the petition.

- 10 -

CRL.P No. 100642 of 2022

8. Respondent though served with the notice,

remained absent.

9. In the light of the argument put forth on behalf

of the petitioners by learned counsel Sri M.L.Vanti, this

Court perused the material on record.

10. Admittedly, there is an order of conviction

passed against the petitioners herein. The cheque in

question was in a sum of Rs.12,50,000/- and learned

magistrate after contest taking note of the rival

contentions of the parties imposed double the cheque

amount as the fine amount. The correctness or otherwise

of the judgment passed by the learned Magistrate is the

subject matter of Crl.A.No.5017/2022 before the V

Additional District & Sessions Judge, Dharwad sitting at

Hubballi.

11. While suspending the sentence, the learned

District Judge in his discretion directed the petitioners

herein to deposit 20% of the fine amount and granted 30

- 11 -

CRL.P No. 100642 of 2022

days time for the deposit while suspending the sentence

as referred to supra.

12. The argument put forth on behalf of the

petitioners that it is acting hardship to the petitioners

cannot be countenanced in as much as even assuming

that, 20% of the fine amount has to be deposited the

same would work out only Rs.5,00,000/-, it is less than

50% of the cheque amount itself.

13. Under such circumstances, the grounds urged

in the petition is not sufficient to interfere with the

discretionary order passed by the learned Sessions Judge

while suspending the sentence. Accordingly, this Court

pass the following:

ORDER

Admission declined.

Petition is hereby dismissed.

- 12 -

CRL.P No. 100642 of 2022

Taking note of pendency of this petition 30 days time

is granted from today to deposit the balance amount of

20% of the fine amount.

SD/-

JUDGE

EM