Dismissed

T.Venkata Sivaiah, v. Ravi Ramamohana Rao and Another

Andhra Pradesh HC26 Dec 2023CRLRC/804/2007

Case brief

AI extract

What is this about?

A criminal revision petition challenging the trial court's sentence of fine and compensation instead of imprisonment in a cheque dishonour case. The High Court observed that the offence is primarily a civil wrong and the trial court was correct in imposing a fine with compensation under Supreme Court precedents.

What did the court decide?

The criminal revision is dismissed, confirming the trial court's judgment and order dated 03.04.2007.

T.Venkata Sivaiah, Vs Ravi Ramamohana Rao and Another — Cheque Dishonour | Andhra Pradesh HC (2023)

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THE HON'BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.804 of 2007

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ORDER:

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Assailing the calendar and judgment dated 03.04.2007 in C.C.No.163 of 2006 on the file of the Court of learned Special Judicial Magistrate of First Class for Excise, Guntur, the petitioner/complainant filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.P.C.”).

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The revision case was admitted on 23.11.2007.

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The shorn of necessary facts are that:

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i) Petitioner was running a Timbers shop under the name and style of Jyothi Timbers and he took the shop of respondent/accused on lease for monthly rent of Rs.3,500/- and he paid an amount of Rs.15,000/towards advance to the respondent and same shall be returnable by the time of vacating the said shop and that petitioner/complainant said to have paid the rent regularly and no dues regarding the rent of the said shop. ii) Subsequently, petitioner vacated the said shop and at that time, respondent issued Ex.P.4 cheque, dated

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30.10.2004 for an amount of Rs.19,000/- drawn on Central Bank of India, Guntur towards part payment of the said advance amount. The said cheque was presented for collection on 09.12.2004 in Central Bank of India, Kothapet Branch, Guntur, but the same was returned unpaid with an endorsement due to ‘funds insufficient’.

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iii) Thereafter, on the request of the respondent/accused, he again presented the said cheque for collection on 18.01.2005, but the same was also returned unpaid due to ‘funds insufficient’. On that, he issued Ex.P.7 notice, dated 31.01.2005 to the respondent/accused. Even after receipt of notice, since no amount was paid by the respondent/accused, a complaint was filed by the petitioner under Section 138 of Negotiable Instruments Act (hereinafter referred to as “N.I.Act”) and the same was taken on file in C.C.No.163 of 2005 on the file of the Court of learned Special Judicial Magistrate of First Class for Excise, Guntur.

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Before the trial Court the petitioner/complainant entered into witness box and placed his evidence as P.W.1. The trial Court after recording the evidence of P.W.1 also examined Branch Manager, Central Bank of India, Kothapet, Guntur as

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P.W.2, Bank Manager, Cooperative Urban Bank Limited, Guntur as P.W.3 and Deputy Manager, U.T.I. Bank Guntur as P.W.4. On the other hand, the accused did not enter into witness box to rebut the evidence placed by the complainant.

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Considering the entire material on record, the trial Court came to conclusion that the petitioner/complainant is able to prove his case against the accused and thereby found the guilt of the accused for the offence under Section 138 of N.I.Act and while passing sentence, on questioning, the accused stated before the trial Court that he had old aged parents besides son and a daughter, he alone doing business and if he is imprisoned, his family would put into loss and troubles and there is no person to look after the business. Considering the same, the trial Court, in-order to meet the ends of justice, imposed fine of Rs.15,000/-, in default to suffer simple imprisonment for a period of four (4) months and out of the said fine amount, Rs.5,000/may be given to the complainant/P.W.1 as compensation. 6. Aggrieved by the same, the complainant/P.W.1 preferred the present criminal revision. 7. Sri N.Nagaraju, learned counsel representing Sri A.Rajendra Babu, learned counsel for the petitioner, submits

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that petitioner/complainant proved the guilt of the accused under Section 138 of N.I.Act by placing the relevant material on record; that the trial Court inspite of found guilty of the accused and convicted him under Section 255(2) Cr.P.C. erred in imposing only sentence of fine and it ought to have sentenced the respondent for imprisonment for a period as prescribed under the provisions of N.I.Act.

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Now the point that arises for determination in this revision is “whether there is any illegality or infirmity in the judgment passed by the trial Court, if so, liable to be set aside?” 9. To determine the above said point and in view of the submissions, this Court perused the judgment of Hon’ble Supreme Court reported in R.Vijayan v. Raby¹ , wherein the APEX Court expressed its anguish that “some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided”.

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In the above said judgment the Hon’ble Supreme Court further observed that “unless there were special circumstances,

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1 *(2012) 1 SCC 260

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in all cases of conviction, the Court should uniformly exercise the power to levy fine”.

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In the recent judgment of Hon’ble Supreme Court reported in Meters and Instruments Private Limited v. Kanchan Mehta² , held at paragraph No.18 that:

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“18. From the above discussion following aspects emerge:

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i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

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ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate

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2 AIR 2017 SC 4594

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compensation as may be found acceptable to the parties or the Court.

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iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

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iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

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v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank’s slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The

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manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.”

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Form the above, it is very clear that the Hon’ble Supreme Court observed that the principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings as the offence under Section 138 of the Act is primarily a civil wrong and that the procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence is more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment. The Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C.

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Giving a true remedy, in view of the above judgment, this Court is of the opinion that the trial Court has rightly exercised its power that instead of sentencing the respondent/accused for imprisonment under Section 138 of N.I.Act, fine was imposed and out of which, compensation was also awarded to the complainant.

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Having regard to the above, there is no flaw or infirmity or palpable error in exercising the jurisdiction of the trial Court and thereby, there are no grounds to interfere with the findings recorded by the trial Court and no merits in this revision. Therefore, the present revision is liable for dismissal.

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In the result, the Criminal Revision Case is dismissed confirming the calendar and judgment dated 03.04.2007 in C.C.No.163 of 2005 on the file of the Court of learned Special Judicial Magistrate of First Class for Excise, Guntur.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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_______________________ JUSTICE V.SRINIVAS

Date: 26.12.2023 Krs

THE HON'BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.804 of 2007

DATE: 26.12.2023

Krs

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

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*********

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.804 of 2007

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Between: T.Venkata Sivaiah, S/o.Sambaiah, Aged about 50 years, R/o.S.V.N.Colony, Guntur. ... Petitioner AND

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1.Ravi Ramamohana Rao, S/o.R.B.Mastana Rao, R/o.D.No.26-21-81/A, Besides Mastan Durga, G.T.Road, Guntur. 2.The State of of Andhra Pradesh, Rep.by its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondents

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DATE OF JUDGMENT PRONOUNCED: 26.12.2023

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SUBMITTED FOR APPROVAL :

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments? 2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals. 3. Whether Their ladyship/Lordship wishes Yes/No to see the fair copy of the Judgment?

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______________________ JUSTICE V.SRINIVAS

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* HON’BLE SRI JUSTICE V.SRINIVAS

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