Karnataka High Court
Sri.R.Parameshachari vs Sri.Kanhiya Sharma on 25 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:29375
CRL.RP No. 446 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 446 OF 2021
BETWEEN:
SRI. R. PARAMESHACHARI
SON OF LATE SRI. RATHNACHARI
AGED ABOUT 47 YEARS,
RESIDING AT NO.218
BHOOPASANDRA MAIN ROAD,
NAGASHETTYHALLI, RMV II STAGE
BANGALORE - 560 094.
...PETITIONER
(BY SRI. VASANTH VINCENT FERNANDES, ADVOCATE)
AND:
SRI. KANHIYA SHARMA
SON OF SRI. BHERU SHARMA BHADAR
AGED ABOUT 31 YEARS
NO.4, KRISHNA COMPLEX, THINDLU MAIN ROAD,
KODIGEHALLI, SAHAKARANAGAR
BANGALORE - 560 092.
Digitally ...RESPONDENT
signed by (BY SRI. PRAKASH K V, ADVOCATE)
MALATESH
KC
THIS CRL.RP FILED U/S.401 R/W 397 Cr.P.C PRAYING TO
Location:
HIGH SET ASIDE THE JUDGMENT AND ORDER DATED 05.01.2021
COURT OF PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS
KARNATAKA JUDGE, BENGALURU IN CRL.A.NO.1991/2018 AND ORDER
DATED 03.09.2018 PASSED BY THE XVIII ADDL.C.M.M.,
BENGALURU IN C.C.NO.24360/2017 AND ETC.,
THIS PETITION, COMING ON FOR REPORTING
SETTLEMENT, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
-2-
NC: 2024:KHC:29375
CRL.RP No. 446 of 2021
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
1. Heard Sri.Vasanth Vincent Fernandes. None appears for
the respondent.
2. Revision petitioner is the accused who suffered an order of
conviction in C.C No.24360/2017 and convicted for the
offence punishable under Section138 of N.I Act and as
against the cheque amount, ordered to pay fine amount of
Rs.1,60,000/- of which sum of Rs.1,50,000/- was ordered
to be paid as compensation to the complainant and
balance of Rs.10,000/- towards defraying expenses of the
State. The same which was confirmed in Crl.A
No.1991/2018.
3. The facts in brief which are utmost necessary for disposal
of the revision petition are as under:
Criminal prosecution was launched by the respondent/
complainant alleging the commission of the offence
punishable under Section 138 of N.I Act on the ground
that he had paid advance amount for occupying the shop
which was meant for rent and the transaction did not
materialise and therefore the accused issued
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the cheque in a sum of Rs.75,000/- which on presentation
came to be dishonoured with an endorsement funds
insufficient. There was no compliance to the calling of
legal notice and therefore action was sought against the
accused.
4. The learned Trial Magistrate after completing the
necessary formalities summoned the accused
and recorded the plea. Accused pleaded not guilty and
therefore trial was held.
5. Therefore, in order to prove the case of the complainant,
complainant got examined himself as PW.1 and placed on
record five documentary evidence which were exhibited
and marked as Exs.P1 to P5.
6. Accused statement as contemplated under Section 313 of
Cr.P.C was dispensed as there was no challenge to the
statement made by the complainant on oath by filing an
application under Section 145 (2) of the N.I Act.
Thereafter, the Trial Magistrate heard the parties and
following the dictum of the Hon'ble Apex Court in the case
of INDIAN BANK ASSOCIATION AND OTHERS v. UNION
OF INDIA AND OTHERS reported in 2014 (5) SCC 590
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convicted the accused by imposing double the cheque
amount and also sum of Rs.10,000/- as defraying
expenses of the State.
7. Being aggrieved by the same, accused filed an appeal
before the District Court in Crl.A No.1991/2018, which on
merits came to be dismissed by judgment dated
05.01.2021.
8. Being further aggrieved by the same, the accused is
before this Court.
9. Sri.Vasanth Vincent Fernandes, learned counsel for the
revision petitioner reiterating the grounds urged in the
revision petition, vehemently contended that there was no
proper opportunity granted to the accused before the trial
Court to participate in the trial resulting in miscarriage of
justice besides being providing opportunity of fair trial.
10. He also contended that if matter is remitted to the trial
Court, the matter can be disposed of on merits after
contest and sum of Rs.80,000/- is already deposited by
the revision petitioner to show his bonafides and thus
sought for allowing revision.
11. The learned counsel for respondent absent today.
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12. In the light of the arguments put forth on behalf of the
revision petitioner, this Court perused the material on
record meticulously. On such perusal of the material
on record, issuance of the cheque and the signature of
the revision petitioner therein was not in dispute. Taking
note of the fact that there is no application filed under
Section 145(2) of N.I Act, the Trial Magistrate did raise the
presumption available to the complainant under Section
139 of N.I Act following the dictum of the Hon'ble Apex
Court in the case of Indian Bank Association case supra.
13. Sufficient opportunity was granted to the accused, as
could be seen from the judgment for placing the defence
evidence. But the same was not utilised by the accused.
Therefore, the Trial Magistrate was justified in proceeding
with the case and convicting the accused.
14. However, it is noticed that the Trial Magistrate did not
assign any special reasons for imposing the double the
cheque amount. Moreover, the fine amount that is to be
imposed by the Trial Magistrate cannot exceed double the
cheque amount and in the case on hand, cheque amount
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being Rs.75,000/-, the Magistrate has erred in imposing
fine amount of Rs.1,60,000/-.
15. No doubt compensation amount was ordered to be paid in
a sum of Rs.1,50,000/- to the complainant and the
balance amount of Rs.10,000/- towards defraying
expenses of the State which is impermissible as lis is privy
to the parties and no State machinery is involved.
16. In the absence of any special reasons being assigned by
the Trial Magistrate for imposing double the cheque
amount, the dismissal of the appeal ignoring this aspect of
the matter by the First Appellate Court also needs
reconsideration in this revision petition.
17. This Court having perused the material on record and also
noting the conduct of the revision petitioner, if the fine
amount is reduced from Rs.1,60,000/- to Rs.1,10,000/-
and the entire sum of Rs.1,10,000/- is ordered to be paid
as compensation to the complainant would meet the ends
of justice. Accordingly, following:
ORDER
i) The criminal revision petition is allowed in
part.
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ii) While maintaining the conviction of the
accused for the offence punishable under
Section 138 of N.I Act, fine amount awarded
by the Trial Magistrate confirmed by the First
Appellate Court in a sum of Rs.1,60,000/- is
reduced to sum of Rs.1,10,000/-.
iii) Entire sum of Rs.1,10,000/- shall be paid as
compensation to the complainant, failing
which, the accused / revision petitioner shall
undergo simple imprisonment for a period of
six months.
iv) Time is granted till 15.08.2024 to pay the
balance amount.
v) Amount of Rs.10,000/- imposed by the Trial
Magistrate confirmed by the First Appellate
Court towards defraying expenses of the
State is hereby set aside.
Sd/-
(V SRISHANANDA)
JUDGE
UN
