Smt Shailashri V Rao vs Sri N Vijay Kumar Jain
2022 Latest Caselaw 7666 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF MAY 2022

                           BEFORE

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

   CRIMINAL REVISION PETITION No.990 OF 2014

BETWEEN:

SMT. SHAILASHRI V. RAO
AGED ABOUT 46 YEARS
R/AT NO.27, 3RD MAIN ROAD
GOTTIGERE VILLAGE
SUDARSHAN LAYOUT
RAJARAJESWARINAGAR
BANGALORE-560 098                             ...PETITIONER

(BY SRI ASHOK KUMAR B.G., ADV.,)

AND:

SRI N. VIJAY KUMAR JAIN
SON OF C.NAVARATHNAMAL JAIN
AGED ABOUT 36 YEARS
RESIDING AT NO.1137, 4TH MAIN
6TH CROSS, K.N.EXTENSION,
YESHWANTHAPURA, BANGALORE-560 022.
                                                 ...RESPONDENT
(BY SRI ARNAV A. BAGALWADI, ADV.,)

      This Criminal Revision Petition is filed under Sections 397
Cr.P.C. praying to call for records in CC No.20469/2006 on the
file of XVIII ACMM and XX ASCJ, Bangalore and hear the
appellant herein and set aside the order of conviction passed by
the Court below.
                                                          Crl.R.P.No.990/2014
                                         2


     This Criminal Revision Petition is coming on for hearing
through Physical Hearing/Video Conference, this day the Court
made the following:
                           ORDER

In this petition, the accused has challenged the

confirmation of her conviction for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 (hereinafter

for brevity referred to as `N.I.Act')

2. The contention of the complainant, in the trial

Court, who is the respondent herein, was that the present

petitioner had borrowed a sum of `3,30,000/- as a loan from

him agreeing to repay the same at the shortest duration. At

the constant demand for repayment made by the respondent

after due date, the petitioner herein (accused) had issued a

cheque in favour of the complainant for a sum of Rs.3,30,000/-

dated 21.03.2006 bearing No.126362 drawn on the South

Indian Bank Ltd., Yeshwanthpura Branch, Bangalore. However,

the said cheque came to be dishonoured when presented for

realisation by the complainant for the reason of 'insufficiency of

fund'. Thereafter, since the legal notice issued to the accused

calling upon to pay the cheque amount, did not invoke any

positive response, the complainant instituted a criminal case Crl.R.P.No.990/2014

against the petitioner in C.C.No.20469/2006 for the offence

punishable under Section 138 of the N.I. Act.

The accused (petitioner) was sentenced to pay fine of

`5,50,000/-, in default of payment of fine, simple imprisonment

for one year. Out of the fine amount deposited, if any, by the

accused, a sum of Rs.10,000/- was ordered to be appropriated

towards expenses of the State Government and remaining

amount of Rs.5,40,000/- was ordered to be payable to the

complainant.

Aggrieved by the same, the accused in the trial Court,

preferred an appeal under Section 374 of Cr.P.C. in the Court of

Additional Sessions Judge, FTC-VIII, Bangalore, in

Crl.A.No.246/2013. After hearing both side, the Sessions Court

by its judgment dated 05.09.2014 dismissed the appeal and

confirmed the impugned judgment passed by the trial Court.

Aggrieved by the same, the accused in the trial Court, is before

this Court in this petition.

3. The respondent is being represented by his counsel.

4. Heard learned counsel from both side.

5. The records received from the trial Court as well as

the Sessions Judge's Court are placed before this Court.

Crl.R.P.No.990/2014

6. Both side, now, have filed an application

I.A.No.2/2022 under Section 147 of the N.I. Act reporting

compromise entered into between them and seeking acceptance

of the said compromise entered into between them and have

also filed a joint verifying affidavit.

7. Perused the compromise petition and heard the

submission of learned counsel from both side.

8. The petitioner/accused has remained absent on

medical reasons, which is also mentioned in the application

under consideration, as such, one Sri VenkobaRao, who is said

to be the husband of the petitioner is physically present.

Both the parties support the contents of the compromise

application filed by them. In terms of the compromise

application, the petitioner herein has undertaken to pay a sum

of `2,75,000/- to the respondent herein in the form of Demand

Draft bearing No.003405, which is taken on record. The

petitioner, through her husband has delivered the said Demand

Draft for a sum of `2,75,000/- to the respondent herein and

through his advocate the respondent acknowledges the receipt

of the same.

Crl.R.P.No.990/2014

9. 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 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, the

parties be permitted to compound the offence punishable under

Section 138 of the N.I. Act, however, subject to the payment of

the graded cost by the petitioner/accused.

10. Section 147 of the N.I. Act has made every offence

punishable under the N.I. Act as compoundable. As 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 v. 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 Crl.R.P.No.990/2014

way of cost. Accordingly, taking into consideration the joint

application for compounding, the guidelines given by the

Hon'ble Apex Court in Damodar S. Prabhu's case (Supra)

and the circumstance of the case on hand, I proceed to pass the

following:-

ORDER

[i] The Joint application - I.A.No.2/2022

filed by both side under Section 147 of the

Negotiable Instruments Act, 1881, is allowed;

[ii] The parties to the present petition are

permitted to compound the offence, however,

subject to the petitioner herein (accused) paying a

sum of `49,500/- (Rupees Forty Nine Thousand Five

hundred Only) towards graded cost;

[iii] Subject to the payment of graded cost,

the judgment of conviction and order on sentence

dated 09.04.2013, passed by the learned XVIII

ACMM and XX ASCJ, Bangalore City, in

C.C.No.20469/2006 is set aside and consequently,

the judgment dated 05.09.2014 passed by the Crl.R.P.No.990/2014

Additional Sessions Judge, FTC-VIII, Bangalore in

Criminal Appeal No.246/2013, also stands set aside;

[iv] The petitioner herein -Smt.Shailashri V.

Rao, who was the accused before the Trial Court is

acquitted of the alleged offence punishable under

Section 138 of the Negotiable Instruments Act,

1881;

[v] However, this order of compounding of

the offence and acquittal of the petitioner herein

would come into operation and would enure to the

benefit of the petitioner, only after the accused

deposits the graded cost as ordered above, and in

its entirety during the course of the day. In case of

non-deposit of the said amount in its entirety,

today's order would not enure to the benefit of the

petitioner.

In view of disposal of the revision petition, a sum of

`38,000/-, if any, said to have been deposited by the accused

(petitioner herein) before the trial Court be refunded to the

respondent in accordance with law.

Crl.R.P.No.990/2014

Registry to transmit a copy of this order to both the Trial

Court and also to the Sessions Judge's Court immediately.

Sd/-

JUDGE

TL