Allowed

Irappa S/O Mallappa Vijapur v. Sri.Sharana Basaveshwar Credit Souhardh

Karnataka HC8 Dec 2020CRL.RP/100242/2018

Case brief

AI extract

What is this about?

Karnataka High Court allowed a criminal revision petition regarding a cheque dishonour conviction. Upon an application to compound the offence and payment of settlement proceeds, the court set aside the conviction and acquitted the petitioner, directing the payment of 5% of the cheque amount to the State Legal Services Authority.

What did the court decide?

Impugned conviction and sentence set aside; petitioner acquitted subject to payment of 5% of cheque amount to State Legal Services Authority within four weeks.

Irappa S/O Mallappa Vijapur Vs Sri.Sharana Basaveshwar… — Cheque Dishonour | Karnataka HC (2020)

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THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 08^TH DAY OF DECEMBER 2020

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VISHAL NPATTIHAL

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Digitallysigned byVISHAL NPATTIHALDate:2020.12.1515:37:29+0530 BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100242/2018

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BETWEEN:

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IRAPPA S/O: MALLAPPA VIJAPUR, AGE: 54 YEARS, OCC: PRIVATE SERVICE, R/O: BADARDINNI, TQ: BILAGI, DIST: BAGALKOTE. ……PETITIONER (BY SRI. SHRIHARSH A.NEELOPANTH, ADVOCATE)

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AND:

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SRI SHARANA BASAVESHWAR CREDIT SOUHARDH CO-OPERATIVE LTD., HALINGALI, REPRESENTED BY ITS MANAGER JAGADISH S/O; BASAPPA KALLOLI, AGE: 40 YEARS, OCC: SERVICE, R/O: HALINGALI, TQ: JAMAKHANDI, DIST: BAGALKOTE.

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…….RESPONDENT

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(BY SRI. AVINASH MALIPATIL, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF Cr.P.C. SEEKING TO CALL FOR RECORDS AND ALLOW THIS REVISION PETITION, BY SETTING ASIDE THE ORDER DATED 19.11.2018, PASSED IN CRL.A.NO.35/2017, BY THE COURT OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE, SITTING AT JAMAKHANDI AND IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED 08.05.2017 IN C.C.NO.645/2012 PASSED BY THE JMFC COURT, BANAHATTI AND ACQUIT THE PETITIONER IN C.C.NO.645/2012 FOR THE OFFENCES P/U/S. 138 OF NI ACT.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused being

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aggrieved by the judgment of conviction and order of sentence passed by the JMFC, Banahatti, at Banahatti in C.C.No.645/2012 dated 08.05.2017 convicting accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short N.I.Act) and sentencing to undergo simple imprisonment for six months and to pay fine of Rs.55,000/-. Out of the said fine amount, Rs.50,000/- to be paid to complainant as compensation and Rs.5,000/- to be paid to State as penalty. This judgment came to be modified by I Addl. District and Sessions Judge, Bagalkot sitting at Jamakhandi at Jamakhandi in Criminal Appeal No.35/2017 dated 19.11.2018 modifying the sentence and directing the accused to pay fine of Rs.4,18,610/in default of payment of fine accused to undergo simple imprisonment for six months and out of the fine amount Rs.4,13,610/- was ordered to be paid to complainant-

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Society as compensation and Rs.5,000/- to be paid to the account of State.

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The parties herein shall be referred to as per the status before the trial Court.

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Though this petition is listed for admission, with the consent of both parties, matter is taken up for final disposal.

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The facts of the case are as under:

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Complainant is a Society doing business in fertilizer and money lending business. Accused was a Manager of complainant-Society, Branch at Janamatti from 2007. One Mr.M.R.Honakatti, was the assistant and pigmy agent. During 2012, the Managing Committee of the Society came to know that accused and his assistant committed some fraud and misappropriated amount of the Society. On enquiry it was found that accused and his assistant M.R.Honakatti, misappropriated the amount of Society by fabricating documents. Accused misappropriated Rs.3,04,125/and M.R.Honakatti, misappropriated

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Rs.1,23,740/-, which was the pigmy amount and Rs.1,04,200/- towards fertilizer business. As the complainant wanted to file a complaint for the offence committed by both the persons, M.R.Honakatti, paid the entire amount which he had misappropriated, whereas accused executed “Tappu Oppige Patra” on 10.05.2012 agreeing to repay the money within short time. Thereafter, he got executed a bond paper conceding misappropriation of cash and also executed a cheque for Rs.3,04,125/- dated 10.06.2012. On presentation of the said cheque to its banker the same came to be returned with the remark refer to “drawer” on 13.06.2012. Pursuant to which the complainant got issued legal notice on 13.06.2012, which was received by accused on 14.07.2012. Accused replied to the said notice and denied the charges made therein. Since accused did not pay the dishonored cheque amount, a complaint came to be filed against him for the offence punishable under Section 138 of N.I.Act. On cognizance being taken, accused was summoned who

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pleaded not guilty and claimed to be tried accordingly he was tried.

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In order to prove the guilt of accused, complainant examined its Manager and got examined 3 witnesses as PW.1 to PW.3 and got marked Ex.P1 to P24 and closed its side. Thereafter, the statement of accused was recorded under Section 313 of Code of Criminal Procedure (for short “Cr.P.C”), wherein accused denied all incriminating evidence against him. Accused led defence evidence and took plea that he was not guilty of the offences.

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After perusal of the entire material evidence both oral and documentary, trial Court came to the conclusion that complainant has proved guilt of accused beyond reasonable doubt and accused has not rebutted the presumption cast in favour of complainant and therefore convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced to undergo simple imprisonment for six months and also to pay fine of Rs.55,000/-. Aggrieved by the said judgment, accused preferred an appeal before the I

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Addl. District and Sessions Judge, Bagalkot sitting at Jamakhandi at Jamakhandi.

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After re-appreciating and re-evaluating the entire materials on record both oral and documentary, the Appellate Court came to the conclusion that conviction ordered by the trial Court was right and hence upheld it but however, modified the sentence of the trial Court and sentenced the accused to pay fine of Rs.4,18,610/and in default of payment of fine the accused to undergo simple imprisonment for six months. Out of the fine amount, Rs.4,13,610/- was ordered to be paid to complainant-Society as compensation and Rs.5,000/was ordered to be credited to the account of State.

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Heard Sri Shriharsh Neelopanth, learned counsel for petitioner and Sri Avinash Malipatil, learned counsel for respondent.

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During the arguments, learned counsel for petitioner-accused and respondent-complainant filed an application under Section 147 of N.I.Act R/w 320 of Cr.P.C. seeking to compound the offence as the parties

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to the proceedings have amicably settled their dispute. In view of filing of the application for compounding under Section 147 of N.I.Act, it may not be necessary for this Court to dwelve into merits of the matter.

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As per the contents of compromise petition seeking for compounding of the offences, it is stated that accused and complainant have settled the matter amicably between themselves and accused has paid a sum of Rs.6,42,500/- as full and final settlement towards the due to complainant-Society which includes the present cheque amount. This amount has been paid by way of cash before the execution proceedings in E.P.No.21/2016 and the same is recorded in the proceedings of execution before the Executing Court in E.P.No.21/2016. In view of payment of Rs.6,42,500/by accused to complainant-Society, the entire cheque amount has been paid and accused is not due any further amount to complainant. Complainant is satisfied with the receipt of above stated amount as full and final amount towards settlement of dishonored

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cheque and has stated that there is no further amount due from accused.

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In view of settlement agreed between the parties and amount of dishonored cheque having been fulfilled, there is no further amount to be paid by accused to complainant in the present case. Therefore, both the parties have agreed to put to an end to this litigation and hence have filed this application under Section 147 of N.I.Act for compounding the offence. The application is signed by petitioner-accused and respondentComplainant. Both complainant and accused are present before the Court. They are identified by their respective counsels and learned counsels have also signed the application for compounding.

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On enquiry, the complainant submits that he has received amount towards full and final settlement of the cheque in dispute. Complainant and accused have also filed affidavit reiterating statements made in the application and they confirm the terms of settlement and payment of receipt of the same.

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There is no legal impediment for this Court to accept the application for compounding the offences as the offence herein is compoundable under Section 147 of N.I.Act. It is also to be noted that the offence under Section 138 of N.I.Act is a regulatory offence and in order to encourage the parties to arrive at settlement, the provision under Section 147 of N.I.Act for compounding has to be given effect in the true spirits.

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In view of the judgment of Hon’ble Supreme Court in the case of Damodar S.Prabhu Vs. Syed Babulal reported in 2010 (5) SCC 663 , accused is directed to pay cost to the Legal Services Authority, in view of compounding of the offence. Accordingly, I pass the following Order:

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ORDER

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The judgment of conviction and order of sentence passed by the JMFC, Banahatti, at Banahatti in C.C.No.645/2012 dated 08.05.2017 convicting accused for the offence punishable under Section 138 of Negotiable Instruments Act and modified by I Addl. District and Sessions Judge, Bagalkot sitting at

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Jamakhandi at Jamakhandi in Criminal Appeal No.35/2017 dated 19.11.2018 is hereby set aside and petitioner-accused is acquitted of all the charges subject to the condition that accused shall pay 5% of cheque amount to State Legal Services Authority, within a period of four weeks from today.

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It is submitted by the learned counsel for accused that a sum of Rs.75,000/- has been deposited before the Appellate Court and the same may be ordered to be refunded to accused. If any such amount is deposited, the said amount shall be refunded to accused by the concerned Court, after obtaining proper identification and verification of the party.

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In view of disposal of this petition, IA.No.1/2018 does not survive for consideration.

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msr VK

Irappa S/O Mallappa Vijapur v. Sri.Sharana Basaveshwar Credit Souhardh

Case brief

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Irappa S/O Mallappa Vijapur v. Sri.Sharana Basaveshwar Credit Souhardh

Case brief

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