Karnataka High Court
Smt. Mathura W/O Maruti Kadolkar vs The National Mainority Co-Op Credit ... on 5 March, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC-D:4886
CRL.P No. 102064 of 2023
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102064 OF 2023
C/W CRIMINAL PETITION NO. 102065 OF 2023
CRIMINAL PETITION NO. 102066 OF 2023
CRIMINAL PETITION NO. 102067 OF 2023
CRIMINAL PETITION NO. 102068 OF 2023
IN CRL.P. NO. 102064 OF 2023:
BETWEEN:
SHRI MARUTI S/O VAIJU KADOLKAR,
AGE. 45 YEARS, OCC. BUSINESS,
R/O. 1ST CROSS, NEHRU NAGAR,
TQ. & DIST. BELAGAVI-590010.
... PETITIONER
(BY SRI. SANTOSH PUJARI, ADVOCATE)
AND:
THE NATIONAL MAINORITY CO-OP CREDIT SOCIETY LTD.,
BADAMI BY ITS CLERK,
SRI. LALASAB S/O HUSENASAB BEVINAGIDAD,
Digitally signed
by
AGE. 44 YEARS, OCC. CLERK,
R/O. BADAMI, TALUKA. BADAMI,
VIJAYALAKSHMI
M KANKUPPI
VIJAYALAKSHMI Location: HIGH
M KANKUPPI COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2024.03.07
16:22:11 +0530 DISTRICT. BAGALKOTE-587201.
... RESPONDENT
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ADMIT THE PETITION AND SET ASIDE THE INTERIM
ORDER DATED 10.07.2023 PASSED IN CRIMINAL APPEAL
NO.35/2023 BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
COURT, BAGALKOTE VIDE ANNEXURE-A, ONLY TO THE EXTENT OF
ORDER OF PAYMENT OF 20% OF THE CHEQUE AMOUNT WITHIN
EIGHT WEEKS, BY THE PETITIONER TO THE RESPONDENT, FOR THE
OFFENCES P/U/SEC. 138 OF THE NI ACT, IN THE INTEREST OF
JUSTICE.
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CRL.P No. 102064 of 2023
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
IN CRL.P. NO. 102065 OF 2023:
BETWEEN:
SHRI SUHAS S/O SHIVAJIRAO PATIL,
AGE. 54 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.269/B, 1ST FLOOR,
AGARAKAR ROAD, TILAKWADI,
TAL. AND DIST. BELAGAVI-590006.
... PETITIONER
(BY SRI. SANTOSH PUJARI, ADVOCATE)
AND:
THE NATIONAL MAINORITY CO-OP CREDIT SOCIETY LTD.,
BADAMI BY ITS CLERK,
SRI. LALASAB S/O HUSENASAB BEVINAGIDAD,
AGE. 44 YEARS, OCC. CLERK,
R/O. BADAMI, TALUKA. BADAMI,
DISTRICT. BAGALKOTE-587201.
... RESPONDENT
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ADMIT THE PETITION AND SET ASIDE THE INTERIM
ORDER DTD 10.07.2023 PASSED IN CRIMINAL APPEAL NO.37/2023
BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS COURT,
BAGALKOTE VIDE ANNEXURE-A, ONLY TO THE EXTENT OF ORDER OF
PAYMENT OF 20% OF THE CHEQUE AMOUNT WITHIN EIGHT WEEKS,
BY THE PETITIONER TO THE RESPONDENT, FOR THE OFFENCES
P/U/SEC.138 OF THE NI ACT, IN THE INTEREST OF JUSTICE.
IN CRL.P. NO. 102066 OF 2023:
BETWEEN:
SMT. MATHURA W/O MARUTI KADOLKAR,
AGE. 44 YEARS, OCC. BUSINESS,
R/O. 1ST CROSS, NEHRU NAGAR,
TAL. AND DIST. BELAGAVI-590010.
... PETITIONER
(BY SRI. SANTOSH PUJARI, ADVOCATE)
AND:
THE NATIONAL MAINORITY CO-OP CREDIT SOCIETY LTD.,
BADAMI BY ITS CLERK
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NC: 2024:KHC-D:4886
CRL.P No. 102064 of 2023
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
SRI. LALASAB S/O HUSENASAB BEVINAGIDAD,
AGE. 44 YEARS, OCC. CLERK,
R/O. BADAMI, TALUKA. BADAMI,
DISTRICT. BAGALKOTE-587201.
... RESPONDENT
(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ADMIT THE PETITION AND SET ASIDE THE INTERIM
ORDER DATED 10.07.2023 PASSED IN CRIMINAL APPEAL
NO.34/2023 BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
COURT, BAGALKOTE VIDE ANNEXURE-A, ONLY TO THE EXTENT OF
ORDER OF PAYMENT OF 20% OF THE CHEQUE AMOUNT WITHIN
EIGHT WEEKS, BY THE PETITIONER TO THE RESPONDENT, FOR THE
OFFENCES P/U/SEC. 138 OF THE NI ACT, IN THE INTEREST OF
JUSTICE.
IN CRL.P. NO. 102067 OF 2023:
BETWEEN:
SMT. SAPURA W/O RIZWAN MOMIN,
AGE. 42 YEARS, OCC. BUSINESS,
R/O. #4286, JALAGER GALLI,
TAL. & DIST. BELAGAVI-590001.
... PETITIONER
(BY SRI. SANTOSH PUJARI, ADVOCATE)
AND:
THE NATIONAL MAINORITY CO-OP CREDIT SOCIETY LTD.,
BADAMI BY ITS CLERK,
SRI. LALASAB S/O HUSENASAB BEVINAGIDAD,
AGE. 44 YEARS, OCC. CLERK,
R/O. BADAMI, TALUKA. BADAMI,
DISTRICT. BAGALKOTE-587201.
... RESPONDENT
(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ADMIT THE PETITION AND SET ASIDE THE INTERIM
ORDER DATED 10.07.2023 PASSED IN CRIMINAL APPEAL
NO.38/2023 BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
COURT, BAGALKOTE VIDE ANNEXURE-A, ONLY TO THE EXTENT OF
ORDER OF PAYMENT OF 20% OF THE CHEQUE AMOUNT WITHIN
EIGHT WEEKS, BY THE PETITIONER TO THE RESPONDENT, FOR THE
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NC: 2024:KHC-D:4886
CRL.P No. 102064 of 2023
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
OFFENCES P/U/SEC. 138 OF THE NI ACT, IN THE INTEREST OF
JUSTICE.
IN CRL.P. NO. 102068 OF 2023:
BETWEEN:
SHRI RIZWAN S/O MAHAMMADSHAFI MOMIN,
AGE. 42 YEARS, OCC. BUSINESS,
R/O. #4286 JALAGER GALLI,
TAL AND DIST. BELAGAVI-590001.
... PETITIONER
(BY SRI. SANTOSH PUJARI, ADVOCATE)
AND:
THE NATIONAL MAINORITY CO-OP CREDIT SOCIETY LTD.,
BADAMI BY ITS CLERK,
SRI. LALASAB S/O HUSENASAB BEVINAGIDAD,
AGE. 44 YEARS, OCC. CLERK,
R/O. BADAMI, TALUKA. BADAMI,
DISTRICT. BAGALKOTE-587201.
... RESPONDENT
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ADMIT THE PETITION AND SET ASIDE THE INTERIM
ORDER DATED 10.07.2023 PASSED IN CRIMINAL APPEAL
NO.36/2023 BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
COURT, BAGALKOTE VIDE ANNEXURE-A, ONLY TO THE EXTENT OF
ORDER OF PAYMENT OF 20% OF THE CHEQUE AMOUNT WITHIN
EIGHT WEEKS, BY THE PETITIONER TO THE RESPONDENT, FOR THE
OFFENCES P/U/SEC. 138 OF THE NI ACT, IN THE INTEREST OF
JUSTICE.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 102064 of 2023
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
ORDER
Criminal Petition No.102064/2023 is filed praying to set
aside the interim order dated 10.07.2023 passed in Criminal
Appeal No.35/2023 by the learned Principal District and
Sessions Court, Bagalkote, only to the extent of order of
payment of 20% of the cheque amount within eight weeks.
2. Criminal Petition No.102065/2023 is filed praying
to set aside the interim order dated 10.07.2023 passed in
Criminal Appeal No.37/2023 by the learned Principal District
and Sessions Court, Bagalkote, only to the extent of order
of payment of 20% of the cheque amount within eight
weeks.
3. Criminal Petition No.102066/2023 is filed praying
to set aside the interim order dated 10.07.2023 passed in
Criminal Appeal No.34/2023 by the learned Principal District
and Sessions Court, Bagalkote, only to the extent of order of
payment of 20% of the cheque amount within eight weeks.
4. Criminal Petition No.102067/2023 is filed praying
to set aside the interim order dated 10.07.2023 passed in
NC: 2024:KHC-D:4886
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
Criminal Appeal No.38/2023 by the learned Principal District
and Sessions Court, Bagalkote, only to the extent of order
of payment of 20% of the cheque amount within eight
weeks.
5. Criminal Petition No.102068/2023 is filed praying
to set aside the interim order dated 10.07.2023 passed in
Criminal Appeal No.36/2023 by the learned Principal District
and Sessions Court, Bagalkote, only to the extent of order of
payment of 20% of the cheque amount within eight weeks.
6. The petitioners in all these petitions have been
convicted for an offence under Section 138 of the Negotiable
Instruments Act (hereinafter referred to as the 'NI Act', for
short) and have preferred appeal before the Sessions Court
challenging the judgment of conviction and order of
sentence.
7. Heard the learned counsel for the petitioners and
the learned counsel for the respondent in all the 5 petitions.
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C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
8. Since the question involved in all the aforesaid
petitions is regarding deposit of 20% of the cheque amount,
the aforesaid petitions are taken together for disposal.
9. Learned counsel for the petitioners would contend
that Sri. Maruti Kadolkar, the petitioner in Criminal Petition
No.102064/2023 has availed loan in his name and also in the
names of his wife Mathura-petitioner in Criminal Petition
No.102066/2023, his friends namely Suhas Patil-petitioner in
Criminal Petition No.102065/2023 and Rizwan Momin-
petitioner in Criminal Petition No.102068/2023 and Sapura
Momin-petitioner in Criminal Petition No.102067/2023, who
is the wife of Rizwan Momin, for his dairy business and he
has utilized the loan amount in the names of other
petitioners stated supra and as he has sustained loss, he
could not repay the loan amount. Therefore, the cheques
which were given for security of repayment of loan, were
presented and they were returned dishonoured for want of
funds. He further submits that the loan in his name, the
loan in the name of his wife-Mathura and the loan in the
name of Sapura Momin are secured loans. He further
NC: 2024:KHC-D:4886
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
submits that as per the interim order passed by this Court,
he has deposited 10% of the cheque amount and it has been
withdrawn by the respondent. He further submits that, in all
the other petitions also he has only deposited 10% of the
cheque amount on behalf of other petitioners and he has
given an undertaking before this Court to pay the cheque
amount in his case and also in the case of other petitioners
stated supra. He further submits that, as the petitioner-
Maruti has sustained loss, several civil litigations have been
initiated by different financial institutions and he is trying to
settle them. He further submits that he will make an
application for OTS to the respondent within four weeks and
if it is approved, he will comply and close the loans. With
this he prays for reducing the deposit of 20% of the cheque
amount to 10% of the cheque amount.
10. Learned counsel for the respondent submits that
the mandate of Section 148 of NI Act is deposit of minimum
of 20% of the fine or compensation awarded by the trial
Court. He contends that the appellate Court considering the
said provision has passed a conditional order at the time of
NC: 2024:KHC-D:4886
C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
suspension of sentence imposing deposit of minimum 20% of
the cheque amount. He submits that the petitioners have
not made out any case for reducing deposit of 20% to 10%
of the cheque amount.
11. Having heard the learned counsels, the Court has
perused the records and the undertaking given by the
petitioner-Maruti.
12. It is not in dispute that the petitioners in all the 5
petitions, by "virtue of the interim order passed by this Court
on 31.08.2023 have deposited 10% of the cheque amount
before this Court. The respondent in all the 5 cases has
withdrawn the said deposit of 10% of the cheque amount by
virtue of the order dated 10.10.2023.
13. The Hon'ble Apex Court in the case of Jamboo
Bhandari v. M.P. State Industrial Development Corporation
Limited and others reported in 2023 SCC Online SC 1144
has held as under:
"6. What is held by this Court is that a purposive
interpretation should be made of Section 148 of the N.I.
Act. Hence, normally, Appellate Court will be justified in
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C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
imposing the condition of deposit as provided in Section
148. However, in a case where the Appellate Court is
satisfied that the condition of deposit of 20% will be unjust
or imposing such a condition will amount to deprivation of
the right of appeal of the appellant, exception can be made
for the reasons specifically recorded.
7. Therefore, when Appellate Court considers the
prayer under Section 389 of the Cr.P.C. of an accused who
has been convicted for offence under Section 138 of the
N.I. Act, it is always open for the Appellate Court to
consider whether it is an exceptional case which warrants
grant of suspension of sentence without imposing the
condition of deposit of 20% of the fine/compensation
amount. As stated earlier, if the Appellate Court comes to
the conclusion that it is an exceptional case, the reasons
for coming to the said conclusion must be recorded."
14. In view of the above decision of the Hon'ble Apex
Court, the appellate Court in exceptional cases can grant
suspension of sentence either without imposing the condition
of deposit of 20% of the fine/compensation amount or
reduce the deposit lesser than 20%. The Madras High Court
referring to the decision of Jamboo Bhandari (supra) in the
case of C.R. Balasubramanian v. P. Eswaraoorthi in Crl.O.P.
No.947/2024 decided on 22.01.2024 and also taking into
consideration the decision of the Kerala High Court rendered
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C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
in Baiju v. State of Kerala reported in 2023(3) MWN (Cr.)
DCC 140 (Ker.) has observed as under:
"While dealing with an application for suspension
of sentence or for grant of bail when an appeal is filed
against the conviction for offence under Section 138
of the Negotiable Instruments Act, the Courts must
not mechanically impose a condition of deposit of
20% of the compensation amount/cheque amount
u/s.148 of the Negotiable Instruments Act. When
any ground has been raised by the appellant for
reducing the percentage or for exempting the deposit
of such amount, it has to be dealt with by the
appellate Court and a reasoned order must be passed
if the Court wants to direct the appellant to deposit
20% of the compensation amount/cheque amount."
15. The Co-ordinate Bench of this Court in the case
between Shrusti Agro and Cold Storage and Shri Sadiq
son of Abdulrehman Bedre in Criminal Petition
No.103093/2023 decided on 17.01.2024 referring to the
judgment of the Hon'ble Apex Court rendered in Jamboo
Bhandari (supra) and taking into consideration the
exceptional case made out by the petitioner has reduced the
deposit amount of 20% to 10% of the fine amount.
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C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
16. The undertaking given by Maruti-petitioner in
Criminal Petition No.102064/2023 indicates that he was
running huge business in milk, was owning lorry tankers for
carrying the same and he was also having two show rooms
of 4 wheeler and he has sustained loss in his business. The
undertaking given by said Maruti also indicate that he has
utilized the loan granted by the respondent to petitioners in
other 4 petitions and he has undertaken to pay the cheque
amount after exhausting the legal remedy. It is also not in
dispute that the loan borrowed by Maruti Kadolkar, his wife
Matura and Sapura Momin are secured loans. As the loan
borrowed by Maruti Kadolkar and other 4 petitioners are
utilized by Maruti Kadolkar for his business and as he has
sustained loss, he and other petitioners were not able to
repay the said loan amount. The cheques in question are
issued for repayment of the loan amount.
17. In view of the above, the petitioners in all the 5
petitions have made out an exceptional case for reducing
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C/W CRL.P Nos.102065 of 2023, 102066 of 2023,
102067 of 2023 and 102068 of 2023
deposit of 20% to 10% of the cheque amount imposed in
the impugned orders.
18. Consequently, the impugned orders dated
10.07.2023 passed by the learned Principal District and
Sessions Court, Bagalkote, are modified permitting the
petitioners to deposit 10% of the cheque amount. The said
10% of the cheques amount is already deposited in all the 5
petitions and are withdrawn by the respondent.
19. Accordingly, the Criminal Petition
Nos.102064/2023, 102065/2023, 102066/2023,
102067/2023 and 102068/2023 are allowed to the extent
stated above.
Sd/-
JUDGE
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