Partly allowed

Sri Govind v. Jathar v Smt Sangeetha B Ahuja

Karnataka HC16 Aug 2023CRL.RP/710/2019

Case brief

AI extract

What is this about?

This criminal revision petition challenged a conviction and sentence for cheque dishonour under Section 138 NI Act. The High Court upheld the conviction but modified the sentence, converting compensation into a fine to avoid immediate imprisonment. Petitioner ordered to submit before trial court.

What did the court decide?

Conviction confirmed but sentence of imprisonment set aside; compensation of Rs. 1,75,000/- converted into fine of Rs. 1,80,000/- payable to complainant; remaining fine amount to government exchequer.

Sri Govind v Jathar Vs Smt Sangeetha B Ahuja — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 710 OF 2019

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BETWEEN:

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SRI. GOVIND V. JATHAR, AGED ABOUT 44 YEARS, S/O LATE VIBHAKAR JATHAR, PROPRIETOR OF M/S. SRI. GANESH TRADERS, NO.B-91, 1^ST STAGE, 2^ND CROSS, PEENYA INDUSTRIAL ESTATE, BANGALORE-560 058. …PETITIONER (BY SRI. SHRIVATSA, ADVOCATE FOR SRI. P.N. HEGDE, ADVOCATE)

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AND:

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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SMT. SANGEETHA B. AHUJA, W/O SRI. BHAGAWAN R. AHUJA, AGED ABOUT 40 YEARS, NO.23/1, "SRI MUNETRA NIVASA" 2^ND FLOOR, 1^ST MAIN, KEMPANNA LAYOUT, PALACE GUTTAHALLI, BENGALURU-560 020, REPRESENTED BY SPA HOLDER/ HUSBAND SRI. BHAGAWAN R. AHUJA, S/O LATE SRI. RAMACHAND C. AHUJA.

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…RESPONDENT (BY SRI. JAMADAGNI , ADVOCATE FOR SRI. M.B. CHANDRA CHOODA, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 05.03.2019, PASSED BY THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CCH-61 IN CRI.A.NO.1219/2017 AND THE

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NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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ORDER DATED 01.08.2017 IN C.C.NO.22499/2016 FROM THE FILE OF THE COURT OF XV A.C.M.M., AT BENGALURU AND CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE N.I ACT.

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

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ORDER

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This revision petition is filed by the accused challenging the judgment of conviction and order of sentence passed by the XV ACMM, Bangalore City in C.C.No.22499/2016 dated 01.08.2017 and confirmed by LX Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.1219/2017 vide judgment dated 05.03.2019.

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are as

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under:

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The accused and complainant are known to each other since many years and accused is running a business. The accused has approached the complainant for a hand loan of Rs.7,50,000/- for the purpose of business necessity and

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3 - NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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complainant advanced the said loan through cheque. Further to refund the amount, the accused has issued ten cheques of Rs.50,000/- each & ten cheques of Rs.25,000/- each and out of twenty cheques, fifteen cheques were honoured and five cheques were dishonoured for insufficient funds. After issuance of notice, since there was no response, the complaint came to be lodged.

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The learned Magistrate has taken cognizance and issued process and the accused has appeared through his counsel and was enlarged on bail. He denied the accusation. The complainant was got examined himself as PW1 and he placed reliance on nineteen documents as per Exs.P1 to P19. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded and case of accused is of total denial. He has also got examined himself as DW1.

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Having heard the arguments and perusing the records, now the following point would arise for my consideration:

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“Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the first appellate Court are perverse, erroneous and

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NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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arbitrary so as to call for any interference by this Court?”

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It is the specific case of the complainant that he has advanced a loan of Rs.7,50,000/- to the accused for business need and for repayment of the same, ten cheques of Rs.50,000/- each & ten cheques of Rs.25,000/- each and out of twenty cheques, fifteen cheques were honoured and five cheques were dishonoured for insufficient funds. Hence, he lodged a complaint. It is the specific case of the complainant that amount was transferred to the account of the accused. This fact is not denied or disputed. Further, this is again evidenced by documentary evidence produced by the complainant and bank statement account at Exs.P7 & P8. All these aspects clearly establish amount was transferred to the account of accused and out of twenty cheques issued, five cheques dishonoured and only fifteen cheques were honoured.

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Accused has not disputed that cheques belongs to him and further the signatures on the cheuques. It is for the accused to explain under what circumstances the cheques were issued. But no specific defense is forthcoming. In his evidence accused has admitted that he has borrowed loan of

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5 - NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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Rs.7,50,000/- and though he asserts the repayment of the entire amount, no evidence is forthcoming. On the contrary, he admits that he has issued twenty cheques out of which fifteen cheques were honoured. The balance amount is Rs.1,75,000/only.

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Considering these aspects and considering the admission on the part of the accused, both the Courts below have convicted the accused and no illegality or infirmity is found. Further, Court has also taken note of subsequent payment and that was deducted from the balance cheque amount and the fine was imposed only to the extent of Rs.1,75,000/-. Out of the fine, a sum of Rs.1,75,000/-, an amount of Rs.1,70,000/- is ordered to be paid as compensation to the complainant under Section 357 of Cr.P.C., and remaining Rs.5,000/- is appropriated to the government exchequer. Instead of compensation that can be converted into fine by enhancing it to Rs.1,80,000/- in place of sentence of imprisonment . Only to this extent the petition needs to be allowed regarding sentence portion and accordingly, the point under consideration is answered partly in the affirmative and hence, I proceed to pass the following:

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NC: 2023:KHC:29464 CRL.RP No. 710 of 2019

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ORDER

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The revision petition is allowed in part.

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The judgment of conviction passed by XV ACMM, Bangalore City in C.C.No.22499/2016 dated 01.08.2017 and confirmed by LX Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.1219/2017 vide judgment dated 05.03.2019, stands confirmed. However, the sentence portion is modified and the sentence of imprisonment is set aside, but the compensation awarded to the tune of Rs.1,75,000/- is converted into fine by imposing fine of Rs.1,80,000/on accused and in default of payment of fine he shall undergo simple imprisonment for a period of 3 months.

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Out of fine, Rs.1,70,000/- shall be paid to the complainant as compensation.

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Send back the records to the trial Court with a direction to trial Court to secure the presence of the accused for serving the sentence and collecting the fine, if not deposited.

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Sd/JUDGE

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DS List No.: 1 Sl No.: 0

Sri Govind v. Jathar v Smt Sangeetha B Ahuja

Case brief

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Sri Govind v. Jathar v Smt Sangeetha B Ahuja

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