Telangana High Court
P.John Wilson vs The State Of A.P., on 1 April, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.31 OF 2014
O R D E R:
The present Criminal Revision Case is filed aggrieved by the
judgment 09.12.2013 in Criminal Appeal No.360 of 2013 on the
file of the learned Special Judge for Economic Offences-cum-VIII
Additional Metropolitan Sessions Judge, at Hyderabad (for short,
"the appellate Court") in modifying the judgment dated
25.03.2013 in C.C.No.408 of 2012 (old C.C.No.1072 of 2011) on
the file of the learned XXIV Special Magistrate, Hyderabad (for
short, "the trial Court").
2. Heard Mr. R. Sridhar, learned counsel for the petitioner,
Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing
for respondent No.1 State and Mr. V.V. Ramana, learned counsel
for unofficial respondent No.2.
3. The brief facts of the case are that the petitioner/accused
and respondent No.2/complainant were known to each other. On
05.09.2010, the complainant gave hand loan amount of
Rs.2,00,000/- to the accused and the accused promised to pay
the amount within a short time. On repeated demands, the
accused issued a cheque bearing No.447136 dated 31.05.2011
for Rs.2,00,000/- drawn on Bank of Baroda, Boinpally Branch,
Hyderabad. On presentation, the said cheque was returned with
an endorsement "opening balance insufficient". Hence, the
complainant issued legal notice dated 07.06.2011 demanding
him to pay the cheque amount. But the accused failed to pay the
amount due within the stipulated time. Therefore, the accused
was alleged to have committed the offence under Section 138 of
the Negotiable Instruments Act (for short, "the NI Act").
4. The trial Court vide judgment cited supra, found the
petitioner guilty for the offence under Section 138 of NI Act and
sentenced him to undergo simple imprisonment for a period of six
months and to pay fine of Rs.10,000/-, in default, to suffer
simple imprisonment for a period of one month. Aggrieved
thereby, the petitioner preferred an appeal.
5. The appellate Court vide judgment cited supra, modified the
sentence of six months, passed by the trial Court, from
Rs.10,000/- to Rs.75,000/-. Out of the fine amount, Rs.65,000/-
was directed to be paid to respondent No.2 and the rest of the
amount was directed to be appropriated to the State. If the
petitioner failed to pay the fine amount within a month from the
date of the judgment, the petitioner was directed to suffer simple
imprisonment for a period of six months. Assailing the same, the
present Revision.
6. Learned counsel for the petitioner contended that the trial
Court as well as the appellate Court failed to appreciate the
material available on record in proper perspective and
erroneously passed their respective judgments by holding the
petitioner guilty for the offence under Section 138 of NI Act. He
relied upon the order dated 18.04.2017 passed by this Court in
Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of
2015, wherein and whereby, this Court upon taking into
consideration the decisions passed by the Hon'ble Supreme Court
in Damodar S. Prabhu Vs. Sayed Babalal 1, R. Vijayan Vs.
Baby 2, S.R. Sunil & Company Vs. D. Srinivasavaradan 3,
Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 4 and
Somnath Sarkar Vs. Utpal Basu Mallick5, wherein it was held
that, the object of incorporating the penal provisions under
Sections 138 to 142 of the NI Act is not only to provide a strong
criminal remedy to deter the high incidence of dishonour of
cheques but a remedy of punitive nature and observed that where
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
2013 (16) SCC 465
there is a conviction, there should be a consequential levy of fine
amount sufficient to cover the cheque amount along with simple
interest thereon at a fixed rate of 9% per annum and held that
the interest should be followed by an award of such sum as
compensation from the fine amount. However, to meet the ends
of justice, this Court modified the sentence of six months of
simple imprisonment with fine of Rs.10,000/-, to imprisonment
till rising of the day by giving set off to the period undergone if
any and fine of Rs.10,00,000/- of which Rs.50,000/- would go to
the State and Rs.9,50,000/- as compensation to the complainant
which includes Rs.10,000/- fine if paid to adjust and out of it in
compensation received by complainant, for the balance to pay or
deposit within one month from that day, failing which, the
accused was to suffer the default sentence of six months simple
imprisonment as imposed by the lower Court. Therefore, he seeks
to pass appropriate orders relying upon the said order.
7. Learned Assistant Public Prosecutor and learned counsel
for respondent No.2 opposed the same and contended that
respondent No.2 underwent severe mental agony by roaming
around the trial Court as well as the appellate Court. Learned
counsel submitted that the appellate Court upon appreciating the
oral and documentary evidence rightly passed the impugned
judgment and sought to dismiss the Revision.
8. On behalf of the prosecution, the trial Court examined PW1
and marked Exs.P1 to P7. On behalf of the defence, none were
examined and no document was marked. Upon careful scrutiny
of the evidence available on record, the trial Court and the
appellate Court observed that the complainant has made out all
the ingredients which are required so as to constitute the offence
under Section 138 of NI Act.
9. A perusal of the record shows that this Court vide
09.01.2014 granted interim suspension of the operation of the
judgment passed by the appellate Court pending Revision.
Thereafter, the matter underwent several adjournments.
10. Having regard to the submissions made by all the learned
counsel, on perusing the order dated 18.04.2017 passed by this
Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and
Crl.R.C.No.2887 of 2015 and considering the fact that the
petitioner underwent mental agony roaming around the trial
Court as well as the appellate Court, this Court deems it
appropriate to take a lenient view and direct the petitioner to pay
the fine amount of Rs.75,000/- as imposed by the appellate
Court, within a period of six months from today.
11. On such deposit, respondent No.2/complainant is directed
to withdrawn an amount of Rs.65,000/- upon filing an
appropriate application before the trial Court. An amount of
Rs.10,000/- shall remain with the State.
12. If the petitioner fails to comply the aforesaid direction, he
shall suffer simple imprisonment for a period of six months.
13. With the above direction, the Criminal Revision Case is
disposed of. Needless to mention, the petitioner is at liberty to
work out the remedies available under law.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________
E.V. VENUGOPAL, J
Date: 01.04.2024
ESP
