Partly allowed

Subhash Venkatraman Shet v. Sunita Suresh Vernekar

Karnataka HC18 Feb 2021CRL.RP/2167/2012

Case brief

AI extract

What is this about?

In a cheque dishonour case under Section 138 NI Act, the High Court confirmed the conviction but modified the disproportionate sentence, substituting imprisonment with a fine comprising compensation and court fees.

What did the court decide?

Conviction confirmed; one-year simple imprisonment set aside; fine of ₹2,07,000 imposed (₹2,02,000 to complainant, ₹5,000 confiscated).

Subhash Venkatraman Shet Vs Sunita Suresh Vernekar — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2167/2012

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BETWEEN:

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SRI.SUBHASH VENKATRAMAN SHET AGED ABOUT 34 YEARS R/O SIRSI, TALUK: SIRSI DIST: UTTARA KANNADA

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...PETITIONER

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(BY SRI. T M NADAF, ADVOCATE)

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AND:

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SMT.SUNITA SURESH VERNEKAR AGED ABOUT 56 YEARS, OCC: HOUSEHOLD R/O NEAR BUS STAND, YELLAPUR,TALUK: YELLAPUR, DIST: UTTARA KANNADA

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…RESPONDENT

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(BY SRI. J.S.SHETTY AND ASSOCIATES, ADVS.)

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 R/W 401 OF CR.P.C.SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 08.10.2007 PASSED IN C.C.NO.378/2006 ON THE FILE OF JMFC COURT, AT YELLAPUR AND JUDGMENT DATED 13.03.2012 PASSED IN CRL.A.NO.208/2007 ON THE FILE OF LEARNED SESSIONS JUDGE, FAST TRACK COURT-II, UTTARA KANNADA, KARWAR.

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

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ORDER

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This petition is filed by the petitioner/accused under Section 397 Cr.P.C. for setting aside the judgment of conviction and order of sentence dated 08.10.2007 passed by the JMFC, Yellapura (hereinafter referred to as the ‘trial Court’, for brevity) in CC No.378/2006 dated 08.10.2007 for having convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I. Act’) and confirmed by the Sessions Judge, Fast Track Court-II, U.K., Karwar (hereinafter referred to as ‘the first Appellate Court’) in Criminal Appeal No.208/2007 dated 13.03.2012.

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Heard the arguments of learned counsel for the petitioner as well as the respondent-complainant. The ranks of the parties before the trial Court are retained for the purpose of convenience.

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The case of the complainant before the trial Court is

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that, the accused borrowed the loan of `1,75,000/- from the

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complainant on 18.08.2005 for his family necessities and agreed to repay within two months. In order to discharge the loan, he has issued a cheque bearing No.032271 dated 18.07.2006 and the said cheque when presented before the bank for encashment came to be dishonoured due to insufficient funds. Hence a legal notice dated 24.07.2006 was issued to the accused. In spite of notice, he has not repaid the money and hence complaint came to be filed under Section 200 Cr.P.C. R/w. Section 138 of N.I. Act. The accused appeared before the trial Court and denied the accusation read over to him. To prove his case, the complainant got examined himself as PW1 and got marked four documents. After completion of evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. The case of the accused was total denial and to prove his defence he examined one witness as DW1 – Raghunath Venkatramana Shet and examined himself as DW2 and no documents were marked.

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After hearing the arguments, the trial Court found the accused guilty of the offence alleged and convicted and sentenced him to undergo imprisonment for one year and to pay fine of

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5,000/- and in default of payment of fine, to undergo simple imprisonment for three months and also to pay 2,02,000/- as compensation. Assailing the same, the accused filed an appeal before the first Appellate Court, which came to be rejected. Hence he is before this Court.

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Learned counsel for the petitioner contended that the petitioner is innocent of the alleged offences. Actually he has not borrowed 1,75,000/-, but he has borrowed only 31,000/- and the complainant also not having capacity to pay the said amount, but the trial Court and the first appellate Court not appreciated the evidence of DWs. 1 and 2 and wrongly convicted the petitioner. He further contended that, even otherwise, the offence under Section 138 of the N.I. Act, is punishable with sentence of fine or imprisonment up to 1 to 2 years or with both up to double the cheque amount. Such being the case, imposing sentence of one year and fine is disproportionate to the offence committed by the accused. Hence he prayed for setting aside the same.

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Per contra, learned counsel for the respondent complainant has supported the judgments of both the Courts below

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and contended that, both the Courts appreciated and reappreciated the evidence on record and rightly come to the conclusion convicting the accused. The evidence of PW1 is supported with Ex.P1 - cheque which was dishonoured and legal notice has been issued to the accused as per Ex.P3, but he has not replied or repaid the money. The complaint was filed within the time and in accordance with law. There is nothing elicited to disbelieve the evidence of the complainant. Hence he prayed for dismissing the petition.

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Upon considering the arguments and perusing the evidence on record, admittedly issuance of the cheque by the accused and his signature was not disputed by him in his evidence. Ex.P1 is the cheque and Ex.P1(a) is the signature of the accused, which is not in dispute. Ex.P2 is the return memo received from the bank for dishonour of the cheque, Ex.P3 is the legal notice issued by the complainant to the accused and the same was not replied by the accused. Though the learned counsel for the petitioner submits it was returned back as the door was locked and the addressee was not in station, but the address was in the notice

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as well as in the complaint are one and the same. As per the General Clauses Act, the notice sent in the address showing the correct address of the party is considered as duly sent. Such being the case, the trial Court rightly held notice is sufficient and accused has neither chosen to give reply nor replied. Though the accused examined himself as DW2 and examined DW1, but nothing is elicited to prove or disprove the evidence of DW1 and issuance of cheque - Ex.P1. Therefore, though accused has taken the contention that he has received only `31,000/- but he has not produced any document before the Court and on any oral evidence without documentary support cannot be accepted.

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Accordingly the trial Court and the first Appellate Court have rightly found the accused guilty of the offence punishable under section 138 of the N.I. Act and convicted the accused. However, in respect of the sentence passed by the trial Court, it has awarded that the accused shall undergo one year simple imprisonment and to pay fine of 5,000/- and also ordered to pay a sum of 2,02,000/- as compensation. The punishment prescribed for the offence under Section 138 of N..I. Act is though for the

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imprisonment for a term which may extend to two years or fine which may extend to double the cheque amount or with both, but looking to the quantum of the cheque i.e., 1,75,000/- and as the accused and the complainant are known persons to each other, imposing one year punishment for 1,75,000/- is little bit on the higher side and disproportionate to the offence committed by the accused. Therefore, it requires modification. Accordingly, I pass the following:

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ORDER

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Petition is allowed in part . The judgment of conviction passed by the trial court and upheld by the first Appellate Court is hereby confirmed. However, sentence of imposing simple imprisonment of one year and payment of fine is set aside and modified as under:

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The petitioner is sentenced to pay fine of 2,07,000/- and in default of payment of fine, he shall undergo one simple imprisonment. Out of the fine amount, 2,02,000/- shall be

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payable to the complainant as compensation under Section 357 Cr.P.C. and `5,000/- shall be confiscated to the State.

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The petitioner/accused is already said to have deposited `87,500/- and he has to deposit the remaining amount before the trial Court within four weeks from the date of receipt of certified copy of this order.

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Sd/JUDGE

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gab

Subhash Venkatraman Shet v. Sunita Suresh Vernekar

Case brief

What is this about?

What did the court decide?

Subhash Venkatraman Shet v. Sunita Suresh Vernekar

Case brief

What is this about?

What did the court decide?

What the court decided

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