Karnataka High Court
Smt Sayeeda W/O. Nasrulla vs Sri Abdul Azeez M S/O. Mouli Abdul ... on 23 March, 2022
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION NO.100150/2021
BETWEEN:
SMT. SAYEEDA W/O. NASRULLA
AGED ABOUT 48 YEARS, OCC: ATTENDER
JUNIOR CIVIL JUDGE AND JMFC COURT
HARAPANAHALLI, R/O HARAPANAHALLI TOWN
(DAVANAGERE DISTRICT)
NOW BALLARI DISTRICT
R/O OPPOSITE AZMIYA MASJID
OLD TALUK OFFICE ROAD
8TH CROSS, JAGALUR POST
DAVANAGERE DISTRICT-577528.
...PETITIONER.
(BY SHRI U.G.KATTIMANI, ADVOCATE)
AND:
ABDUL AZEEZ. M
S/O. MOULI ABDUL ZALEEL SAB
AGED ABOUT 33 YEARS, OCC: NIL.
R/O 4TH WARD NEAR CHARMINAR MASJID
PATAN STREET, HARAPANAHALLI
TQ: HARAPANAHALLI
DIST: BALLARI-583131.
...RESPONDENT.
(BY SHRI PRAVEEN P.TARIKAR, ADVOCATE, FOR
SHRI GANGADHAR J.M., ADVOCATE.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 06/03/2021,
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE AT
BALLARI (SITTING AT HOSAPETE), IN CRL.A. NO.5045/2019 AND
ALSO THE JUDGMENT AND ORDER DATED 23/09/2019, PASSED BY
2
THE SENIOR CIVIL JUDGE AND JMFC, HARPANAHALLI, IN
C.C.NO.252/2017, REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT,
1881 AND ACQUIT THE PETITIONER BY ALLOWING THIS REVISION
PETITION.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This revision petition is filed aggrieved by the
judgment dated 06.03.2021, passed by the III Addl.
District and Sessions Judge, Ballari, sitting at Hospete, in
Criminal Appeal No.5045/2019, confirming the judgment
and order of conviction dated 23.9.2021, passed by the
Senior Civil Judge and JMFC, Harapanahalli, in
C.C.No.252/2017 wherein the petitioner-accused was
convicted for the offence punishable under Section 138 of
the Negotiable Instrument Act (for short 'N.I.Act').
2. The revision petitioner is accused and
respondent is the complainant before the trial Court. They
will be referred as accused and complainant, as per their
respective rank before the trial Court.
3. The complainant filed a complaint before the
Senior Civil Judge and JMFC Court at Harapanahalli,
alleging that the accused approached him for financial
assistance to the tune of Rs.1,50,000/- for seeking job to
her daughter. The accused-petitioner requested the
complainant-respondent to pay Rs.1,50,000/- and
accused-petitioner also agreed to pay the said amount
within 4 months along with interest at the rate of 2% p.m
on Rs.100/-. So in this regard, petitioner gave a cheque
dated 17.11.2014 drawn on State Bank of India, Harihar
Branch. But as promised, the amount was not paid. The
complainant-respondent requested the accused-petitioner
to repay the amount, but she did not pay. Hence, he
presented the cheque and the said cheque was returned
with an endorsement as 'Funds Insufficient' along with a
memo. The complainant informed the same to the accused
and the accused asked him once again to present the
cheque. Complainant again presented the cheque and
again it was returned with the endorsement dated
05.12.2014 and 15.12.2014 as 'Funds Insufficient'. Again
the cheque was presented at the request of accused, as
she promised that she will deposit the amount in Bank. But
again the said cheque was dishonored. Then the
complainant got issued registered statutory legal notice
dated 16.1.2015. The said notice is served on the accused
but accused failed to pay the amount. Hence, the
complainant lodged the complaint for the offence under
Section 138 of N.I.Act.
4. Thereafter, the complainant-respondent got
examined himself as PW.1 and also examined two more
witnesses as PWs.2 and 3 and got marked 11 documents
as per Exs.P.1 to P.11. After recording the statement of
accused-petitioner under Section 313 of Cr.P.C wherein,
the accused denied the circumstances appearing against
her in the evidence of complainant's witnesses. The
accused examined herself as DW.1 and after hearing the
arguments, learned trial Court Judge convicted the accused
for the offence punishable under Section 138 of N.I.Act
and sentenced to pay fine of Rs.3,00,000/-, in default of
payment of fine, the accused shall undergo simple
imprisonment for a period of 6 months and under Section
357 of Cr.P.C. a sum of Rs.2,00,000/- is ordered to be
given as compensation to the complainant and remaining
amount of Rs.1,00,000/- is ordered to be deposited to the
State as fine.
5. Aggrieved by the same, accused preferred
Criminal Appeal No.5045/2019 before the III Addl. District
and Sessions Judge, at Ballari, Sitting at Hosapete. The
learned III Additional District and Sessions Judge, Ballari
(Sitting at Hosapete), by judgment dated 6.3.2021
dismissed the said appeal. Aggrieved by the same,
assailing the orders of both the Courts, the accused
preferred this review petition.
6. Heard Shri U.G.Kattimani, the learned counsel
for the revision petitioner and Shri Praveen Tarikar
appearing on behalf of Shri Gangadhar J.M., the learned
counsel for the respondent. Perused the records of the trial
Court and also the impugned judgments of both the
Courts.
7. The complainant got examined himself as PW.1
and he has filed his examination chief affidavit evidence,
which is nothing but reiteration of averments of the
complaint. The complainant was working as a Teacher and
the petitioner/accused was working in the Court as
attender. The complainant stated about giving hand loan of
Rs.1,50,000/- to the petitioner/accused for the purpose of
seeking job and other needs and expenses and in this
regard the petitioner issued the cheque. He has further
stated regarding issuance of legal notice. Of course he is
cross examined at length. Complainant examined the
manager of Canara Bank as PW.2 Mayank Agarwal, who
has stated about giving endorsement Ex.P.2 to P.5. He has
stated that the said endorsement is sent through his bank
which he received from State Bank. PW.3 Lambodar Mishra
is the Chief Manager who has stated about issuance of
Ex.P.2 to P.5 endorsement from his bank.
8. Ex.P.1 is the cheque which shows that an
amount of Rs.1,50,000/- is mentioned in favour of the
complainant. The date of cheque is 17.11.2014. It
appears, complainant has presented the cheque on number
of times. With last presentation of cheque as per the bank
endorsement Ex.P.5 is dated 2.1.2015. Ex.P.6 is the legal
notice. Ex.p.7 is the postal receipt and Ex.P.8 is the postal
acknowledgment card. Admittedly the respondent has not
replied to the said notice. Even in the statement recorded
under section 313 of Cr.P.C. also he has not stated
anything. The petitioner has produced Ex.P.9 order sheet
in Execution Case No.4/2014. There is execution of decree
filed against this accused by one Veeresh for recovery of
the amount. Ex.P.10 is the execution petition. Ex.P.11 is
the passbook of the account of the respondent.
9. Against this, the respondent/accused has given
her examination-in-chief and she has stated that there was
no transaction with the complainant, but there was a
transaction with brother of the complainant. She has taken
only Rs.30,000/- through his brother and issued cheque to
the brother of complainant and she has given interest also.
The said transaction took place in the year 2009-10. But
the brother of the accused not returned the cheque in spite
of request. Now this case is filed. In the cross-examination
she has admitted that she is working at Harihar Court and
she is not having contact with the complainant, she has
given the cheque for taking Rs.30,000/- from
complainant's brother. She has stated that she has given a
blank cheque. It is also admitted that her daughter is also
working. She has denied the suggestion that notice was
issued to her and it was served to her.
10. Both the Courts after hearing the evidence
have rightly come to the conclusion that ingredients of
section 138 of the Negotiable Instruments Act, 1881 is
proved by the complainant. There is also oral and
documentary evidence produced by the petitioner at Ex.P.1
to P.11. There is a presumption in favour of petitioner
under section 139 of the Negotiable Instruments Act, 1881
and that presumption can be rebutted by the accused
either by cross-examining the complainant and witnesses
of the complainant, if any, and show before the Court by
preponderance of probabilities by leading defence evidence
and show before the Court that case of complainant is not
probable. But herein in this case the petitioner by both oral
and documentary evidence coupled with the presumption,
has discharged the burden and shifted the onus upon the
accused but the accused failed to rebut the presumption by
leading legally admissible evidence. Petitioner has received
Rs.30,000/- and issued a blank cheque is only a defence
for the sake of defence. If that is the case, she should have
taken action against the complainant or issued notice, but
no such steps are taken. The petitioner was working in the
Court and her daughter is also working. So she must be
aware of the effect of issuance of cheque. She went on
denying the service of notice and her signature on postal
acknowledgment. This itself shows that the defence of the
accused is not at all helpful.
11. The trial Court has relied upon the decision of
Rangappa vs. Sri Mohan, reported in (2010) 11 SCC
441 and also other decisions and has rightly convicted the
accused. The said order of conviction was challenged
before the learned Sessions Judge and learned Sessions
Judge relying on the decision of Hon'ble Supreme Court in
Hiten P. Dalal vs. Bratindranath Banerjee, reported
in (2001) 6 SCC 16, it has confirmed the conviction.
Therefore it is evident that the conviction of the petitioner
for the offence punishable under section 138 of the
Negotiable Instruments Act, 1881 is based on legally
acceptable evidence. Therefore the conviction judgment by
both the Courts is to be up held.
12. The learned counsel for the petitioner argued
that the petitioner was working as attender, now she
retired from service taking voluntary retirement and the
purpose of loan is for domestic need and getting job to her
daughter. It is not a commercial transaction and the
cheque amount is only Rs.1,50,000/-. But the trial Court
imposed fine of Rs.3,00,000/- and out of that awarded
compensation of Rs.2,00,000/- to the complainant and
ordered Rs.1,00,000/- to be paid to the State which is not
in accordance with law and prays to modify it.
13. I have perused the judgment of conviction
delivered by the trial Court. The appellate Court while
confirming the said judgment has even imposed cost of
Rs.10,000/-. In my considered view, awarding of
compensation of Rs.2,00,000/- when the cheque amount is
Rs.1,50,000/- appears to be reasonable considering the
pendencey of the case. But directing Rs.1,00,000/- to be
paid to the State out of Rs.3,00,000/- as fine appears to
be not in commensurate with the nature of offence
imposing fine in view of facts and circumstances of the
case.
14. The Hon'ble Supreme Court in the case of
Damodar S. Prabhu Vs. Sayed Babalal H., (2010) 5
SCC 663 elaborated the object of bringing Section 138 of
N.I. Act into statute and insertion of Section 138 to 142 of
the N.I. Act by Banking, Public Financial Institutions and
Negotiable Instruments Laws (Amendment) Act, 1988 (66
of 1988). The Hon'ble Supreme Court held that in respect
of offence of dishonor of cheques, it is the compensatory
aspect of the remedy which should be given priority over
the punitive aspect and it is held at para Nos.17 and 18 as
under:
"17. In a recently published commentary,
the following observations have been made with
regard to the offence punishable under Section
138 of the Act.
"...Unlike that for other forms of crime,
the punishment here (insofar as the
complainant is concerned) is not a
means of seeking retribution, but is
more a means to ensure payment of
money. The complainant's interest lies
primarily in recovering the money
rather than seeing the drawer of the
cheque in jail. The threat of jail is only
a mode to ensure recovery. As against
the accused who is willing to undergo a
jail term, there is little available as
remedy for the holder of the cheque.
If we were to examine the
number of complaints filed which were
`compromised' or `settled' before the
final judgment on one side and the
cases which proceeded to judgment
and conviction on the other, we will find
that the bulk was settled and only a
miniscule number continued."
18. It is quite obvious that with respect to
the offence of dishonour of cheques, it is the
compensatory aspect of the remedy which should
be given priority over the punitive aspect. There
is also some support for the apprehensions
raised by the learned Attorney General that a
majority of cheque bounce cases are indeed
being compromised or settled by way of
compounding, albeit during the later stages of
litigation thereby contributing to undue delay in
justice delivery. The problem herein is with the
tendency of litigants to belatedly choose
compounding as a means to resolve their
dispute. Furthermore, the written submissions
filed on behalf of the learned Attorney General
have stressed on the fact that unlike Section
320 CrPC, Section 147 of the Negotiable
Instruments Act provides no explicit guidance as
to what stage compounding can or cannot be
done and whether compounding can be done at
the instance of the complainant or with the leave
of the court"
15. Further, the Hon'ble Supreme Court in the
case of Somnath Sarkar v. Utpal Basu Mallick and
another, (2013) 16 SCC 465, considered the situations
in which the court may remain content with the imposition
of a fine without any sentence of imprisonment. At
paragraph No.15, the relevant portion reads as under:
"15........ There is considerable judicial
authority for the proposition that the courts
can reduce the period of imprisonment
depending upon the nature of the
transaction, the bona fides of the accused,
the contumacy of his conduct, the period for
which the prosecution goes on, the amount
of the cheque involved, the social strata to
which the parties belong, so on and so forth.
Some of these factors may indeed make out
a case where the court may impose only a
sentence of fine upon the defaulting drawer
of the cheque. There is for that purpose
considerable discretion vested in the court
concerned which can and ought to be
exercised in appropriate cases for good and
valid reasons. Suffice it to say that the High
Court was competent on a plain reading of
Section 138 to impose a sentence of fine only
upon the appellant. In as much as the High
Court did so, it committed no jurisdictional
error........"
16. Further, the Hon'ble Supreme court in case of
Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197
followed the judgment in the case of R.Vijayan Vs. Baby
- (2012) 1 SCC 260 and at para No. 25 held as under:
"25. In R. Vijayan V. Baby this Court
observed that the object of Chapter XVII of
the Negotiable Instruments Act is both
punitive as also compensatory and
restitutive. It provides a single forum and
single proceeding for enforcement of the
criminal liability by reason of dishonor of
cheque and for enforcement of the civil
liability for realisation of the cheque amount,
thereby obviating the need for the creditor to
move two different fora for relief. This Court
expressed its anguish that some Magistrates
went by the traditional view, that the criminal
proceedings were for imposing punishment
and did not exercise discretion to direct
payment of compensation, causing
considerable difficulty to the complainant, as
invariably the limitation for filing civil cases
would expire by the time the criminal case
was decided."
17. Further, the Hon'ble Supreme Court in a
decision reported in 2021 SCC Online SC 788 in the case
of Triyambak S. Hegde Vs. Sripad has referred the
decision of Kaushalya Devi Massand Vs. Roopkishore
reported in AIR 2011 SC 2566 and considered the nature
of punishment when the transaction is not an out and out
commercial transaction. In the above referred decision, the
very case of the appellant before the trial court was that
the respondent was in financial distress and sought some
financial assistant and the amount was given. Therefore,
the Hon'ble Supreme Court at paragraph Nos.21 and 22 of
the above decision has discussed these aspects and
thought it proper to modify the sentence of fine only and
set aside and the sentence of imprisonment of six months
and restricted into only fine and compensation was
awarded. The Hon'ble Supreme Court at paragraph Nos.21
and 22 of the above decision, observed as under.
21. Having arrived at the above
conclusion, it would be natural to restore the
judgment of the Learned JMFC. Though in that
regard, we confirm the order of conviction, we
have given our thoughtful consideration relating
to the appropriate sentence that is required to
be imposed at this stage, inasmuch as: whether
it is necessary to imprison the respondent at
this point in time or limit the sentence to
imposition of fine. As noted, the transaction in
question is not an out and out commercial
transaction. The very case of the appellant
before the Trial Court was that the respondent
was in financial distress and it is in such event,
he had offered to sell his house for which the
advance payment was made by the appellant.
The subject cheque has been issued towards
repayment of a portion of the advance amount
since the sale transaction could not be taken
forward. In that background, what cannot also
be lost sight of is that more than two and half
decades have passed from the date on which
the transaction had taken place. During this
period there would be a lot of social and
economic change in the status of the parties.
Further, as observed by this Court in Kaushalya
Devi Massand V. Roopishore Khore, (2011) 4
SCC 593, the gravity of complaint under N.I Act
cannot be equated with an offence under the
provisions of the Penal Code, 1860 or other
criminal offences. In that view , in our opinion,
in the facts and circumstances of the instant
case, if an enhanced fine is imposed it would
meet the ends of justice. Only in the event the
respondent-accused not taking the benefit of
the same to pay the fine but committing default
instead, he would invite the penalty of
imprisonment. Hence, appropriate modification
is made to the sentence in the manner as
indicated hereinbelow:
18. Therefore, in view of the principles stated in the
above referred decisions, it is evident that imposing of
imprisonment though is provided, but it is scarcely followed
by the courts.. The court concerned shall exercise the
discretion vested in it in appropriate cases for good and
valid reasons to impose proper sentence as provided under
N.I.Act. The Court has to keep in mind, the compensatory
aspect of the remedy over the punitive aspect by
considering the facts and circumstances of the case.
19. If the punishment awarded in this case is tested
with touch stone of the principles stated by the Hon'ble
Supreme Court in the above referred decisions, it is
evident that the sentence of imprisonment awarded by the
trial court and confirmed by the first appellate court is not
justified. In the case on hand, it is a monetary loss to the
complainant/respondent. Therefore imposing the sentence
of imprisonment will not serve any purpose. Keeping in
mind the object and purpose for which the N.I. Act was
amended, period of pendency of case, nature of
transaction, the relationship of complainant and accused
and in view of the discussions made above, in my
considered view, the sentence of fine of Rs.3,00,000/-
appears to be exorbitant and excessive. On the other
hand, the sentence of fine can be Rs.2,05,000/- and out of
that Rs.2,00,000/- which the trial Court has ordered as
compensation can be ordered to be paid to the
complainant under section 357 of Cr.P.C. and remaining
fine of Rs.5,000/- shall be deposited to the State. In the
case on hand it is a monetary loss to the complainant and
compensated by the trial Court by awarding extra
Rs.50,000/- apart from the cheque amount of
Rs.1,50,000/- to the tune of total compensation of
Rs.2,00,000/-, but directing Rs.1,00,000/- to be paid to
the State as fine is not in consonance with the decisions
and the object of imposing sentence in Negotiable
Instruments Act, 1881 cases as referred above. Apart from
that when there is a statutory right conferred on the party
to prefer appeal dismissing the said appeal by the learned
Sessions Judge by imposing cost is also not correct.
Therefore, keeping in mind the object and purpose for
which the Negotiable Instruments Act is amended, the
period of pendency of the case, nature of allegation and
the relationship of the parties and also in view of the
discussion made above, in my considered view the
sentence of fine of Rs.3,00,000/- needs to be modified to
the extent imposing sentence of fine only to the tune of
Rs.2,05,000/-. This will meet the ends of justice.
20. Therefore, in view of the facts and
circumstances of this case the evidence placed before the
Court and the decisions of the Hon'ble Supreme Court
referred supra and the discussions made above, the ends
of justice would be met by modifying order of sentence
passed by the trial Court as well as setting aside imposing
cost by the First Appellate Court. Hence, I pass the
following:
ORDER
i) The revision petition is allowed in part.
ii) The judgment of conviction dated
23.9.2019, passed by the Senior Civil
Judge and JMFC Court, Harapanahalli, in
C.C.No.252/2017, for the offence
punishable under section 138 of the
Negotiable Instruments Act, 1881, which
is confirmed by the III Addl. District and
Sessions Judge, Ballari, sitting at
Hosapete, in Crl.A.No.5045/2019, by
judgment dated 6.3.2021, is hereby
confirmed and upheld.
iii) The order of sentence of imposing fine of
Rs.3,00,000/- is modified as under:
a) The petitioner/accused is
sentenced to pay a fine of
Rs.2,05,000/-. Out of the fine
amount, a sum of
Rs.2,00,000/- is directed to be
paid to the complainant as
compensation under section
357 (3) of Cr.P.C. and
remaining fine of Rs.5,000/-
be credited to the State. In
default of payment of fine
amount, the petitioner shall
undergo simple imprisonment
for a period of one month.
b) The compensation amount of
Rs.2,00,000/- shall be paid to
the complainant/respondent by
the revision petitioner/accused
within three months from the
date of receipt of a certified
copy of this order.
c) The order of the learned III
Addl. District and Sessions
Judge, Ballari, sitting at
Hosapete, dated 6.3.2021,
passed in Crl.A.No.5045/2019,
imposing cost of Rs.10,000/- is
set aside.
d) The order of trial Court with
regard to payment of
Rs.2,00,000/- as compensation
to the complainant is upheld.
iv) Send back the records to the trial Court.
SD/-
JUDGE
am/mrk/-
