Sri Pichandi vs Smt Indira
2022 Latest Caselaw 8471 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF JUNE 2022

                           BEFORE

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

       CRIMINAL REVISION PETITION No.737 /2012

BETWEEN:

Sri.Pichandi,
S/o Late Ramaiah,
Aged about 56 years,
Real Estate Agent,
Resident of Opp. Alikaka shop,
8th Cross, Shanthinagar,
Shimoga-577001.                                ... Petitioner

(By Sri.A.C. Balaraj, Advocate)

AND:

Smt. Indira,
W/o Nanjundappa,
Major, R/o Old Barline Road,
Shivamogga City,
Pin Code-577001.                             ... Respondent

(By Sri.Nagaraj M. Bhat, Advocate,
for Sri.R.B.Deshpande, Advocate)

      This Criminal Revision Petition is filed under Section 401
Cr.P.C praying to set aside the judgment dated 05.12.2011
passed by the III Addl. C.J. & J.M.F.C., Shimoga in
C.C.No.198/2009 and the judgment dated 27.06.2012 passed
by the S.J., F.T.C.-I, Shimoga in Crl.A.No.927/2011.

      This Criminal Revision Petition coming on for Orders this
day, the Court made the following:
                                                          Crl.R.P.No.737 /2012
                                    2


                              ORDER

The present petitioner as the accused was tried by

the Court of the learned III Addl. Civil Judge and J.M.F.C,

Shivamogga, (hereinafter for brevity referred to as the

"Trial Court") in C.C.No.198/2009 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 convicted for the said offence by

its judgment of conviction and order on sentence dated

5-12-2011.

Aggrieved by the same, the accused preferred a

Criminal Appeal in the learned Sessions Judge, I Fast

Track Court at Shimoga, (hereinafter for brevity referred to

as the "Sessions Judge's Court") in Criminal Appeal

No.927/2011.

The appeal was contested by the respondent who

was the complainant in the Trial Court. The Sessions

Judge's Court in its order dated 27-06-2012, dismissed the

appeal, confirming the judgment of conviction and order Crl.R.P.No.737 /2012

on sentence passed by the Trial Court dated 5-12-2011 in

C.C.No.198/2009. Aggrieved by the said order, the

accused has preferred this revision petition.

2. The summary of the case of the complainant in

the Trial Court was that the accused was a timber dealer

and also contractor in Shivamogga. The complainant

approached the accused for the supply of timber for

construction of their house. After negotiation, it was

agreed between the parties that the complainant should

pay an advance amount of `95,000/-, as such, in three

installments of `25,000/-, `25,000/- plus `45,000/-, the

complainant in total paid a sum of `95,000/- to the

accused between February to August in the year 2008.

Even after receiving the advance amount, the accused did

not supply the timber, as such, at the demand made by

the complainant for the return of the amount paid to him,

the accused issued a cheque baring No.065686 dated

25.09.2008 for a sum of `95,000/- drawn in favour of the Crl.R.P.No.737 /2012

complainant on State Bank of India, Sir M.V.road branch,

Shivamogga. On presentation of the said cheque for

realization by the complainant, the same was returned

unpaid with the banker's endorsement "Funds Insufficient".

The complainant got issued a legal notice to the accused

demanding the cheque amount, after seven days enquiry,

the said notice was returned to the complainant, however,

the accused even after knowing the fact of dishonor of the

cheque and the demand for cheque amount, failed to

repay the said amount which constrained the complainant

to institute a criminal case against him in the Trial Court in

C.C.No.198/2009 for the offence punishable under Section

138 of the N.I. Act.

3. The learned counsel for the petitioner and

learned counsel for the respondent are physically present

in the Court.

Crl.R.P.No.737 /2012

4. Heard the arguments from both side. Perused

the materials placed before this Court, including the Trial

Court and Sessions Judge's Court's records.

5. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

trial Court.

6. After hearing the learned counsel from both

side, the only point that arise for my consideration in this

revision petition is:

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

7. Though this matter was listed at the stage of

orders and parties had taken adjournment for reporting the

settlement also, since it was reported that it was a failure of

the settlement and the Trial Court records and Sessions Court

records were already received in the matter, with the consent Crl.R.P.No.737 /2012

from both side, main matter itself was taken up for its final

disposal.

8. Heard the arguments from both side on the

main petition.

9. Learned counsel for the petitioner in his single

sentence argument, submitted that, he would not

challenge the judgment of conviction, however, his request

is only to reconsider the quantum of sentence and reduce

the sentence.

10. Learned counsel for the respondent submits

that in view of the fact that the cheque was of the year

2008, the quantum of sentence cannot be considered as

higher.

11. The complainant got her husband

Sri.Nanjundappa examined as PW.1 as her General Power

of Attorney. The said witness reiterated the contention

taken up by the complainant in her complaint. In his

support, he got produced and marked General Power Crl.R.P.No.737 /2012

of Attorney standing in his favour at exhibit P.1, original

returned cheque at exhibit P.2, bankers endorsement in

returning of the cheque at exhibit P.3, postal receipt for

having sent the legal notice to the accused at exhibit P.4,

copy of the legal notice at exhibit P.5, unserved postal

cover at exhibit P.6 and notice copy in it at exhibit P.6(a),

certificate of posting at exhibit P.7. In addition to the

same, he has also produced a copy of FIR at exhibit P.8,

bankers statement at exhibit P.9 and one more certificate

of posting at exhibit P.10. Statement of PW.1 made in his

examination-in-chief could not be shakened in his cross-

examination substantially.

Though the accused also got himself examined as DW.1,

his defence taken in his examination-in-chief was that the

cheque in question was given by him to one Smt.Laxmamma

as a security in a loan transaction, however, the said cheque

was misused by the complainant. The said Smt.Laxmamma

herself has stated to the accused that those two cheques were

given to PW.1. The said PW.1 through his wife has got the false

case lodged against him. However, the said defence taken by Crl.R.P.No.737 /2012

the accused was denied in the cross-examination of PW.1.

Thus, it is after proper analysis of the evidence placed

before them, both the Trial Court and the Sessions Judge's

Court have held that the accused has committed the

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

Act.

12. It also cannot be ignored of the fact that the

learned counsel for the petitioner does not dispute the

judgment of conviction but his grievance is only about the

quantum of sentence, as such also, the impugned

judgments of conviction under revision does not warrant

any interference at the hands of this court so far as the

conviction of the accused for the offence punishable under

Section 138 of the N.I. Act, is concerned.

13. It is the sentencing policy that, the sentence

ordered must be proportionate to the gravity of the proven

guilt of the accused. In the instant case, even according to

the complainant, the total amount said to have been given

to the accused towards alleged advance amount for Crl.R.P.No.737 /2012

purchase of the timber was in total a sum of `95,000/-.

The amount shown in the cheque which is at exhibit P.2 is

also for a sum of `95,000/-. Section 138 of the N.I. Act no

doubt, empowers the Court to impose imprisonment for a

term which may be extended to two years, or with fine,

which may extend to twice the amount of the cheque, or

with both. In the instant case, the Trial Court has

sentenced accused to pay fine of `1,80,000/- in which a

sum of `10,000/- is ordered to be deposited in favour of

the State and remaining fine amount of `1,70,000/- is

ordered to be payable to the complainant as

compensation.

14. The contention of the complainant that out of

`95,000/-, it was `50,000/- alone which was paid in

cheque and remaining `45,000/- was in cash. Admittedly,

there are no documents about the alleged cash

transaction. However, the cheque amount is only for a sum

of `95,000/- and the accused by entering the witness box

by himself and producing an alleged sale agreement which Crl.R.P.No.737 /2012

is at exhibit D.1, has attempted to rebut the presumption

and taken a defence that the said cheque was not at all

issued to the complainant. He has also categorically denied

the receipt of the alleged advance of `95,000/- from the

complainant.

In such circumstances, though the accused has

attempted to rebut the presumption formed in favour of

the complainant and in which process, he has entered

witness box and produced certain documents, however, he

could not successfully rebut the presumption. I am of the

view that in the facts and circumstances of the case, the

quantum of the fine amount which is very much nearer to

the double of the cheque amount, is very much on the

higher side, as such, only in reducing the sentence,

particularly the quantum of the fine amount, the

interference at the hands of this court is warranted.

Accordingly, the Criminal Revision Petition stands allowed

in part, the judgment of conviction passed by the III Addl. Civil

Judge and J.M.F.C., Shivamogga in C.C.No.198/2009, on

5.12.2011, though does not warrant any interference Crl.R.P.No.737 /2012

and as it stands confirmed, however, the order on

sentence passed by the Trial Court which was further

confirmed by the Sessions Judge's Court, stands modified.

The sentencing of imposing a fine of `1,80,000/- is

reduced to a sum of `1,20,000/-, in which a sum of

`10,000/- is ordered to be paid to the State, and

remaining amount to be deposited in the Trial Court which

amount shall be released in favour of complainant as

compensation under Section 357 of Cr.P.C. and in

accordance with law. The deposit of the entire amount in

the Trial Court to be made within two weeks from today.

Registry to transmit a copy of this order to both the

Trial Court as also the Sessions Judge's Court along with

their respective records forthwith.

Sd/-

JUDGE CBC