Telangana High Court
B.H.Kutumba Rao, R.R.Dt., vs The State Of A.P., Rep. By Pp., And Anr., on 21 March, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.1912 and 1913 OF 2012
COMMON ORDER:
The Criminal Revision Case Nos.1912 and 1913 of 2012 are
filed aggrieved by the judgment dated 27.09.2012 in Criminal
Appeal Nos.77 and 87 of 2011 on the file of the learned
Additional District Judge, at Wanaparthy (for short, "the
appellate Court") in modifying the judgment dated 16.08.2011 in
C.C.No.297 of 2005 on the file of the learned Judicial Magistrate
of First Class, Special Mobile, Nagarkurnool (for short, "the trial
Court").
2. Heard Ms. Malavika Badriraju, learned Amicus Curiae
appearing on behalf of the petitioner, Mr. Vizarath Ali, learned
Assistant Public Prosecutor appearing for respondent No.1 State
and Mr. Shanta Ram, learned counsel representing
Mr. Hanumanth Rao, learned counsel for respondent No.2 State.
3. As the issue involved in both the Revision cases is one and
the same, they are being disposed of by way of common order.
4. For the sake of convenience, the facts in Criminal Revision
Case No.1912 of 2012 are discussed are hereunder:-
The brief facts of the case are that respondent
No.2/complainant and petitioner/accused were known to each
other. On 24.06.2004, the accused obtained an amount of
Rs.1,50,000/- from the complainant and an amount of
Rs.15,000/- on 18.12.2004. On 18.12.2004, he executed a
document in favour of the complainant at Kollapur and issued
post dated cheque to the complainant vide Cheque No.874981
dated 18.12.2004. The accused failed to pay the amount due
inspite of several demands. Therefore, the complainant presented
the subject cheque in State Bank of Hyderabad, Kollapur branch.
But the same was dishonoured for the reasons "insufficient
funds". Therefore, the complainant issued legal notice dated
19.04.2005 to the accused demanding him to pay the amount
due. But the accused failed to pay the amount within the
stipulated time. Therefore, the accused was alleged to have
committed the offence punishable under Section 138 of the
Negotiable Instruments Act (for short, "NI Act").
5. The trial Court vide judgment cited supra found the
accused guilty for the offence under Section 138 of NI Act and
sentenced him to undergo rigorous imprisonment for a period of
six months and pay fine of Rs.5,000/-, in default, he was directed
to suffer simple imprisonment for one month. Aggrieved thereby,
accused preferred an appeal.
6. The appellate Court vide judgment cited supra dismissed
the appeal confirming the judgment passed by the trial Court.
Assailing the same, the present Revision.
7. During the course of hearing, learned counsel for the
petitioner stated that the trial Court as well as the appellate
Court concurrently found the petitioner guilty for the offence
punishable under Section.138 of N.I.Act. Learned counsel 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
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
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
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.
2013 (16) SCC 465
8. 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 both the Courts upon appreciating the
oral and documentary evidence rightly passed the impugned
judgments and sought to dismiss the Revision.
9. On behalf of the prosecution, the trial Court examined
PWs.1 and 2 and marked Exs.P1 to P9. On behalf of the defence,
none were examined and no document was marked. Upon careful
scrutiny of the oral and documentary evidence, 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.
10. A perusal of the record shows that this Court vide order
dated 09.10.2012 suspended the sentence of imprisonment
imposed on the petitioner and released him on bail on furnishing
a personal bond for Rs.5,000/- by him with one surety for a like
sum each to the satisfaction of the trial Court. Thereafter, the
matter underwent several adjournments.
11. 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 reduce the sentence
imposed against the petitioner to the period of imprisonment
already undergone by him.
12. The petitioner is further directed to deposit compensation of
Rs.1,00,000/- to the credit of the trial Court within a period of six
months from today. On such deposit, respondent No.1 is at
liberty to withdraw an amount of Rs.90,000/- with immediate
effect. An amount of Rs.10,000/- shall remain with the State.
13. If the petitioner fails to comply the aforesaid direction, he
shall suffer simple imprisonment for a period of one month.
14. With the above direction, the Criminal Revision Case
No.1912 and 1913 of 2012 are 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: 21.03.2024
ESP
