Telangana High Court
K.Issac vs A.Ashok Kumar on 5 March, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.2208 OF 2013
O R D E R:
The present Criminal Revision Case is filed seeking to set
aside the judgment dated 12.09.2013 in Criminal Appeal No.327
of 2012 on the file of the learned Metropolitan Sessions Judge,
Hyderabad (for short, "the appellate Court") in confirming the
judgment dated 10.04.2012 in C.C.No.22 of 2011 (old C.C.No.205
of 2010 on the file of I A.C.M.M., Hyderabad) on the file of the
learned II Special Magistrate, Hyderabad (for short, "the trial
Court").
2. Heard Mr. M. Arun Kumar, learned Amicus Curiae
appearing on behalf of the petitioner, Mr. Akhileshwar, learned
counsel representing Mr. A. Tulsi Raj Gokul, learned counsel for
respondent No.1 and Mr. Vizarath Ali, learned Assistant Public
Prosecutor appearing for respondent No.2 State.
3. The brief facts of the case are that the petitioner/accused
misrepresented that he was the owner of the plot bearing No.47
in LIG category, at Shamshabad ring road town allotted by
Hyderabad Urban Development Authority and entered into an
agreement of sale with respondent No.1/ complainant. Believing
his words, the complainant paid an amount of Rs.2,00,000/- to
the accused as an advance and the accused agreed to register the
plot in the name of the complainant on payment of balance sale
consideration within two months from the date of the said
agreement. But the accused failed to register the said plot inspite
of repeated requests made by the complainant.
4. The complainant demanded the accused to show him the
original document pertaining to the said property. Then, the
accused admitted that he had no such agreement with him.
However, the accused assured him that he would return the
advanced amount and thereby issued the cheque bearing
No.000184 dated 05.11.2009 for Rs.1,00,000/- and another
cheque bearing No.000185 dated 10.11.2009 for Rs.1,00,000/-
both drawn on State Bank of Hyderabad, Tarnaka Branch,
Secunderabad. The accused requested the complainant to
present the said cheques in the month of February, 2012.
5. On presentation, the two cheques were returned for the
reason "insufficient funds". The complainant issued legal notices
for the two cheques. The accused acknowledged the said notices
but failed to repay the amount due within the stipulated time.
Hence, the accused was alleged to have committed the offence
punishable under Section 138 of the Negotiable Instruments Act
(for short, "NI Act").
6. The trial Court vide judgment cited supra sentenced the
accused to suffer rigorous imprisonment for a period of one year
and pay compensation of Rs.2,00,000/- to the complainant
within four months from that day @ Rs.50,000/- per month
commencing from May, 2012 in default of any single instalment,
he was directed to undergo simple imprisonment for a period of
two months. Aggrieved thereby, accused preferred an appeal.
7. The appellate Court vide judgment cited supra dismissed
the appeal confirming the judgment passed by the trial Court.
Assailing the same, the present Revision.
8. 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
Somnath Sarka 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
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
2013 (16) SCC 465
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.
9. Learned counsel appearing for respondent No.1 and learned
Assistant Public Prosecutor opposed the same and contended
that respondent No.1 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.
10. On behalf of the prosecution, the trial Court examined
PWs.1 and 2 and marked Exs.P1 to P20. On behalf of the defence
none were examined and no document was marked. Upon careful
consideration of the oral and documentary evidence, the trial
Court observed that PW1, in his evidence stated that the accused
issued Exs.P3 and P4 cheques stating that he would make
necessary arrangements in his account, to honour the two
cheques, on the date of presentation. Except a vague suggestion
of denial that the accused has not issued the two cheques, no
specific suggestion was made to PW1, by the accused, stating
that he has not issued the subject cheques. According to
accused, he stated that the cheques were lost and he made a
complaint to the bank authorities. Except making a suggestion to
PW1 in that regard, accused has not chosen to adduce any
evidence to prove his contention. The accused also failed to file a
copy of the so called complaint made to bank authorities with
regard to the loss of cheques. The accused never entered into the
witness box to depose about the loss of cheques. However, from
the documentary evidence of Exs.P1 and P2, it was clear that the
accused claimed to be the owner of the subject plot belonging to
another, entered into an agreement of sale with the complainant
and received an amount of Rs.2,00,000/- from the complainant
towards advance amount from the total sale consideration of
Rs.10,94,800/-.
11. The accused after receiving the legal notices, failed to repay
the amounts. Thus, the accused created upon himself a liability
of returning the advance amount of Rs.2,00,000/- which is a
legally enforceable liability. Thus, the trial Court found that the
accused issued Exs.P3 and P4 cheques in discharge of the said
legally enforceable liability and rendered the judgment cited
supra. The appellate Court upon re-appreciating the evidence
available on record also found that the ingredients of Section 138
of NI Act are proved by the complainant and the accused failed to
raise any probable defence in this case. Hence, the appellate
Court dismissed the appeal confirming the judgment passed by
the trial Court.
12. A perusal of the record shows that this Court vide order
dated 25.09.2013 suspended the execution of sentence imposed
against the petitioner and ordered him to be released on bail on
his executing a personal bond for a sum of Rs.10,000/- with two
sureties for a like sum each to the satisfaction of the trial Court
pending Revision. Thereafter, the matter underwent several
adjournments.
13. 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.
14. The petitioner is further directed to pay compensation of
Rs.2,50,000/- 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 the same with immediate effect.
15. If the petitioner fails to comply the aforesaid direction, the
judgment dated 12.09.2013 in Criminal Appeal No.327 of 2012
on the file of the learned Metropolitan Sessions Judge, Hyderabad
stands good in all respects.
16. 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: 05.03.2024
ESP
