Karnataka High Court

D. R. Deviprasad vs Vikram G.C on 24 November, 2023

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                                                      NC: 2023:KHC:42545
                                                  CRL.RP No. 757 of 2017




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 24TH DAY OF NOVEMBER, 2023

                                       BEFORE

                        THE HON'BLE MR JUSTICE ANIL B KATTI

                    CRIMINAL REVISION PETITION NO.757 OF 2017

             BETWEEN:

             D.R. DEVIPRASAD
             S/O. LATE RAMESH,
             AGED ABOUT 32 YEARS,
             C/O. M. RAJANNA,
             BUILDING CONTRACTOR,
             R/O. VIVEK NAGAR, HASSAN - 573201.            ... PETITIONER

             (BY SRI GIRISH B. BALADARE ,ADVOCATE)

             AND:

             VIKRAM G.C.
             S/O. LATE CHANDRA GOWDA,
             R/O. GUTHI VILLAGE AND POST,
             MUDIGERE TALUK,
             CHIKKAMAGALURU DISTRICT - 577101.            ... RESPONDENT
Digitally
signed by    (RESPONDENT SERVED)
SUMITHRA R
Location:         THIS CRIMINAL REVISION PETITION IS FILED UNDER
HIGH         SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
COURT OF     JUDGMENT DATED 05.04.2016 PASSED BY THE PRINCIPAL CIVIL
KARNATAKA    JUDGE AND J.M.F.C., MUDIGERE IN C.C.NO.636/2013 BY
             CONVICTING THE PETITIONER AND THE SAME ORDER WAS
             CONFIRMED BY THE APPELLATE COURT BY DISMISSING THE APPEAL
             FILED BY THE PETITIONER IN JUDGMENT DATED 24.06.2017
             PASSED BY THE I ADDITIONAL SESSIONS AND SPECIAL JUDGE,
             CHIKKAMAGALURU IN CRL.A.NO.75/2016 AND PETITIONER TO BE
             ACQUITTED FOR THE OFFENCE ALLEGED AGAINST HIM.

                  THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
             THE COURT MADE THE FOLLOWING:
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                                                    NC: 2023:KHC:42545
                                              CRL.RP No. 757 of 2017




                                ORDER

Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of

I Addl.Sessions and Special Judge, Chickamagaluru in

Crl.A.No.75/2016, dated 24.06.2017, confirming the

judgment of Trial Court on the file of

Prl.Civil Judge and JMFC, Mudigere, in C.C.No.636/2013,

dated 05.04.2016 preferred this Revision Petition.

2. Parties to the Revision Petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and on

perusal of Trial Court Records with the judgment of both

the Courts below the following points arise for

consideration:

1) Whether the impugned judgment under

revision passed by the First Appellate Court

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in confirming the judgment of Trial Court for

the offence punishable under Section 138 of

N.I.Act is perverse capricious and legally not

sustainable?

2) Whether interference of this Court is

required?

5. On careful perusal of the oral and documentary

evidence placed on record, it would go to show that

accused has borrowed Rs.3,00,000/- from the

complainant. In order to discharge the said legally

enforceable debt issued post dated cheque dated

13.02.2013 drawn on IDBI Bank Ex.P.1. The said cheque

was presented for collection and the same was

dishonoured vide bank endorsement as "Insufficient

Funds" dated 25.02.2013 Ex.P.2. The banker of the

complainant, Syndicate Bank intimated the dishonour of

cheque by letter dated 25.02.2013 Ex.P.3. The

complainant has issued demand notice dated 06.03.2013

Ex.P.4. The demand notice is duly served to the accused

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vide acknowledgement card Ex.P.6 and the postal receipt

is produced Ex.P.5. Complaint was filed for not paying the

amount covered under the cheque. Accused has replied to

the demand notice dated 24.04.2013 Ex.D.2 and the

postal receipt is produced Ex.D.3. In view of the said

material evidence placed on record by the complainant

and the reply of accused Ex.D.2 are taken into

consideration, then it is evident that the issuance of

cheque with his signature on the account maintained by

him in IDBI Bank has not been specifically denied.

However, it is the case of accused that he has given five

blanked signed cheque to one Dharmesh M.G and one of

the said cheque has been misused by the complainant to

file this case. When the issuance of cheque with signature

of accused on the account maintained by him is admitted,

then statutory presumption in terms of Sections 118 and

138 of Negotiable Instruments Act,1881 (hereinafter for

brevity referred to as "N.I.Act") will have to be drawn.

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6. The Courts below have recorded concurrent finding

holding that accused has issued the cheque in question

Ex.P.1 for lawful discharge of debt. The contention of

DW.1 that five blank signed cheques have been issued to

one Dharmesh M.G and one of such cheque has been

misused by the complainant has been rejected by both the

Courts below. The said findings recorded by both the

Courts below are based on material evidence on record

and the same does not warrant any interference of this

Court.

7. Learned counsel for the Revision Petitioner has

vehemently argued regarding the quantum of punishment

that has been imposed by the Trial Court. The Trial Court

has sentenced the accused to undergo simple

imprisonment for 6 months and pay a fine of Rs.1,000/-

and awarded compensation of Rs.3,00,000/- to the

complainant. In view of the nature of transaction involved

and the object of introducing Section 138 of N.I.Act in all

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the cases, the imposition of sentence of imprisonment is

unwarranted.

8. The learned counsel for the Revision Petitioner in

support of the contention places reliance on the Court Co-

ordinate bench judgment of this Court in

Crl.R.P.No.100050/2020, dated 26.02.2021, wherein this

Court has modified the sentence of imprisonment imposed

by the Trial Court and confirming the judgment of First

Appellate Court in modifying the sentence and ordered to

maintain only the sentence of fine and compensation.

9. In this context of the matter it is useful to refer

the judgment of Hon'ble Apex Court in SOMNATH SARKAR

VS. UTPAL BASU MALLICK AND ANOTHER reported in

(2013) 16 SCC 465, wherein the Hon'ble Apex Court by

relying on its earlier judgment in DAMODAR S. PRABHU

VS. SAYED BABALAL H. reported in (2010) 5 SCC 663

extracted paragraph 17, which reads as under :

"17. Unlike that for other forms of crime, the punishment here (insofar as the complainant

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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."

The Hon'ble Apex Court having referred the said

finding has observed and held that Statute provide for

imposition of imprisonment was only intended to ensure

quick recovery of the amount payable under the

instrument. It has been further held that the legislative

intent was to provide a strong criminal remedy in order to

deter the worryingly high incidence of dishonour of

cheques. While the possibility of imprisonment up to two

years provides a remedy of a punitive nature, the provision

for imposing a 'fine which may extend to twice the amount

of the cheque' serves a compensatory purpose. What must

be remembered is that the dishonour of a cheque can be

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best described as a regulatory offence that has been

created to serve the public interest in ensuring the

reliability of these instruments. The impact of this offence

is usually confined to the private parties involved in

commercial transactions.

In view of the principles enunciated in this judgment

of Hon'ble Apex Court and the object of legislature in

incorporating the provision for punishment of offence

under Section 138 of N.I. Act is to ensure the credibility of

the money involved covered under the cheque.

10. In the present case, the accused has borrowed

the money of Rs.3,00,000/- from the complainant, since

they know each other. The cheque in question was not

issued on account of any commercial transaction. Looking

to the principles enunciated by the Hon'ble Apex Court in

the aforementioned judgment and the object of

introducing Section 138 of N.I.Act in my opinion the

imposition of sentence of simple imprisonment for 6

months is unwarranted and the same is disproportionate

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to proved offence against the accused. As such, the

interference of this Court is required to modify the

imposition of sentence as ordered by the Trial Court which

is confirmed by the First Appellate Court. Consequently,

proceed to pass the following:

ORDER

Revision Petition filed by Revision Petitioner/accused

is hereby partly allowed.

The judgment of the First Appellate Court on the file

of I Addl.Sessions and Special judge, Chickamagaluru in

Crl.A.No.75/2016, dated 24.06.2017 in confirming the

judgment of Trial Court on the file of Prl.Civil Judge and

JMFC, Mudigere in C.C.No.636/2013, dated 05.04.2016 is

ordered to be modified as under:

The imposition of sentence of simple imprisonment

for 6 months is here by set aside.

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The fine amount and the compensation as ordered by

the Trial Court which is confirmed by the First Appellate

Court stands confirmed.