Partly allowed

Balchandra Madev Karikantra v. Uday Vaman Nayak

Karnataka HC10 Feb 2021CRL.RP/2114/2012

Case brief

AI extract

What is this about?

In a revision petition challenging conviction and sentence for cheque dishonour, the High Court upheld the conviction but set aside the term of imprisonment. The Court allowed the payment of fine already made towards compensation to offset the penalty. Bail bonds were cancelled due to the disposal of the matter. The judgment prioritized settlement over punitive imprisonment.

What did the court decide?

Imprisonment of six months set aside and modified to fine of ₹1,00,000, which was already paid; bail bonds cancelled.

Balchandra Madev Karikantra Vs Uday Vaman Nayak — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.2114/2012

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BETWEEN:

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BALCHANDRA MADEV HARIKANTRA AGE: 43 YEARS, OCC: AGRICULTURE R/O. KENI, BHAVIKERI, TQ: ANKOLA, DIST: UTTAR KANNADA

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...PETITIONER

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(BY SRI. J S SHETTY ASSOCIATES, ADVOCATES)

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AND:

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UDAY VAMAN NAYAK AGE: 44 YEARS, OCC: RYOT R/O. BHAVIKERI, TQ: ANKOLA, DIST: UTTAR KANNADA

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THE STATE OF KARNATAKA, BY ITS PUBLIC PROSECUTOR, KARWAR.

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…RESPONDENT

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(BY MS SEEMA SHIVA NAIK, HCGP FOR R2; R1 – SERVED)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER DATED 01.08.2011 PASSED BY THE SESSIONS JUDGE, FAST TRACK COURT-II, UTTARA KANNADA, KARWAR, IN CRL.A.NO.13/2007 CONFIRMED THE JUDGEMENT AND ORDER DATED 29.09.2006 PASSED BY THE JMFC COURT, ANKOLA, IN C.C.NO.733/2003.

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THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed by the petitioner/accused under Section 397 of Cr.P.C. being aggrieved by the judgment of conviction and sentence dated 29.09.2006 passed by the JMFC, Ankola, (hereinafter referred to as ‘the Trial Court’, for brevity) in Criminal Case No.733/2009 and the same was upheld by the Sessions Judge, Fast Track Court - II, Uttara Kannada, Karwar (hereinafter referred to as ‘the first Appellate Court’) by its judgment dated 01.08.2011 passed in Criminal Appeal No.13/2007, convicting the petitioner to undergo simple imprisonment for six months and to pay fine of 1,000/-, in default of payment of fine to further undergo simple imprisonment for one month, for offence punishable under Section 138 of the N.I. Act and further to pay compensation of 1,00,000/- to the complainant on or before 30^th November, 2006, in default to undergo simple imprisonment for 6 months.

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Heard the arguments of learned counsel for the petitioner as well as the learned HCGP for the respondent No.2State. Respondent No.1 – complainant, though served has remained unrepresented. The rankings of the parties before the trial Court are retained for convenience.

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The case of the complainant in brief is that, he has sold watermelon worth `90,000/- to the accused and to discharge the debt, the accused said to have issued a cheque dated 21.08.2003 in favour of the complainant drawn on K.D.C.C. Bank, branch Ankola and the cheque when presented for encashment came to be dishonoured on 28.08.2003 for want of sufficient funds. A legal notice was issued on 08.09.2003, which was served on 12.09.2003 and thereafter the accused not chosen to pay the amount. Hence complaint came to be filed. After taking cognizance the accused presence of the accused was secured by issuing process, charges were read over to him and the accused pleaded not guilty and claimed to be tried. Accordingly, complainant examined two witnesses and got marked four documents. The accused denied the evidence adduced against him under Section 313 Cr.P.C. and

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examined himself as DW1 and not marked any documents.

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The contention taken up by the accused before the trial Court is that, the accused made transaction of purchasing 10 tons of watermelon at the rate of 2,000/- per ton, totaling to 20,000/and he has paid 11,000/- by cash and promised to pay remaining 9,000/- after few days. When the complainant insisted for entire amount, he paid a blank cheque to the complainant and later paid the entire amount after few days, but the complainant did not return the said blank cheque and said to have misused the blank cheque by mentioning the amount of `90,000/- on it and filed the complaint. But the trial Court disbelieved the evidence of DW1 and accepted the evidence of PWs.1 to 3 and convicted the accused. Assailing the same, the accused filed appeal before the Sessions Judge, which came to be dismissed by confirming the judgment of the trial Court. Hence he is before this Court.

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Learned counsel for the petitioner contended that the judgment of the trial Court is erroneous and is liable to be set aside. However, the learned counsel contended that, after passing of the judgment by both the Courts below, the accused already

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deposited `1,00,000/- before the trial Court and the same was already received by the complainant by cheque on 13.07.2012 and therefore, she is not arguing on the merits of the case. However, the imprisonment by six months can be set aside by modifying the judgment. Hence prayed for allowing the petition.

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Upon hearing the arguments and perusing the judgment of conviction and sentence passed by the trial Court, it goes to show that the transaction of purchase of the watermelon and payment of cash is admitted by the accused. According to the accused, he has paid 11,000/- by cash and for 9,000/- he has given blank cheque, which was disbelieved by the trial Court. On behalf of the complainant, three witnesses have been examined and Ex.P1 - cheque has been marked which corroborates the evidence of PW1. Ex.P3 is the copy of the notice issued by the complainant to the accused, which was duly served upon him, but he has not chosen to give any reply by taking the contention that he has purchased watermelon for only 20,000/-, but not 90,000/-. Such being the case, the trial Court rightly found the accused guilty and the first Appellate Court re-appreciated the evidence and upheld the

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guilt. The alternative argument of the learned counsel for the petitioner is that the amount of compensation is already paid by the accused in the trial Court and the same was received by the complainant. The sentence passed by the trial Court is not proportionate to the offence committed by the accused and as per Section 138 of N.I. Act, the imprisonment could be extended to two years or fine or with both and the amount of compensation payable is up to double the cheque amount. The trial Court sentenced on both count by sentencing the petitioner/accused to pay fine of amount and has ordered for imprisonment which is not proportionate to the amount of cheque.

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Therefore, in my considered opinion, when the dispute between parties has already been settled by making payment of `1,00,000/- to the complainant, the same was received by the complainant, the question of imposing sentence does not warrant in this case to the facts and circumstances of the case.

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Accordingly, I pass the following:

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ORDER

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The petition is partly allowed . The finding of conviction

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passed by both the Courts below is upheld. However, the sentence of imprisonment for six months passed by the trial Court is hereby set aside and modified as under:

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The accused/petitioner is sentenced to pay fine of `1,00,000/and in default of payment of fine, shall undergo imprisonment of six months. In view of the payment already been made by the petitioner to the complainant by the trial Court, the petition is disposed of as the accused already paid the fine amount to the complainant. His bail bonds stands cancelled. Intimate the trial Court accordingly.

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Sd/-

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JUDGE

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gab

Balchandra Madev Karikantra v. Uday Vaman Nayak

Case brief

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Balchandra Madev Karikantra v. Uday Vaman Nayak

Case brief

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