Sri Devraj Vs Sri Shekar C

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 28.03.2019 IN CRIMINAL APPEAL NO.310/2018, PASSED BY THE 61 ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND RESTORE THE SAME AND SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE 12^TH A.C.M.M BENGALURU IN C.C.NO.7081/2015 DATED 02.02.2018.

¶18

2 -

¶19

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶20

THIS PETITION, COMING ON FOR REPORTING SETTLEMENT, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶21

CORAM: HON'BLE MS JUSTICE J.M.KHAZI

¶22

ORAL ORDER

¶23

In this petition filed under Section 397 r/w 401 Cr.P.C, petitioner who is accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I. Act passed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

¶24

For the sake of convenience, parties are referred to by their ranks before the trial Court.

¶25

Complainant filed the complaint alleging that he and accused are known to each other. Accused requested for financial assistance of Rs.8,50,000/- for his urgent personal commitment, agreeing to repay the same within six months. On 10.03.2014, complainant paid Rs.8,50,000/- to accused. In this regard accused executed demand promissory note. When he failed to repay the same, on persistent request and demand accused issued

¶26

3 - NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶27

cheque dated 22.12.2014 assuring payment on presentation. However, when the complainant presented it for encashment, on 06.01.2015, it was returned dishonoured with endorsement "Funds insufficient". Complainant issued legal notice dated 22.01.2015. Despite service, accused has neither sent any reply nor complied with it. Without any alternative, complaint is filed.

¶28

Accused put in his appearance and contested

¶29

the case by pleading not guilty.

¶30

In order to establish the allegations against the accused, complainant examined himself as PW-1 and got marked Ex.P1 to 5.

¶31

However, before the cross-examination of PW1, accused entered into a settlement with complainant and filed a joint memo on 07.10.2017. As per the joint memo the complainant and accused have settled the dispute for a sum of Rs.4,50,000/- payable in 3 instalments of

¶32

4 -

¶33

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶34

Rs.1,50,000/- each at the interval of two months, commencing from 20.01.2018. Accordingly, the trial Court accepted the joint memo and convicted and sentenced the accused to pay an amount of Rs.4,50,000/- as per the schedule, in default to undergo simple imprisonment for three months and if the said amount is deposited, ordered for payment of the same to the complainant.

¶35

However, instead of complying with the said

¶36

order, the accused filed Crl.A.No.310/2018 before the Sessions Court.

¶37

Vide order dated 02.03.2018, the Sessions Court suspended the sentence, subject to deposit of 10% of the fine amount within 30 days.

¶38

Again, on 08.01.2019, accused filed one more application to grant him further time to deposit the said 10% of the fine amount. It came to be allowed granting time till 14.01.2019.

¶39

5 -

¶40

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶41

It appears since the accused failed to comply with the said order, the trial Court dismissed the appeal.

¶42

Aggrieved by the same, petitioner has come up with the present petition contending that the impugned orders passed by the trial Court and the Sessions Court are illegal, one sided and liable to be set aside. The Sessions Court ought to have given him opportunity to argue the case on merit. The trial Court convicted the accused even though there was no debt or liability and complainant failed to prove the case beyond reasonable doubt. Without verifying the available evidence, the Sessions Court has erred in dismissing the appeal summarily. It is contrary to the principles of natural justice and hence the petition.

¶43

On the other hand, learned counsel for complainant supported the impugned judgment and order passed by the trial Court as well as the Sessions Court and sought for dismissal of the petition.

¶44

6 -

¶45

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶46

Heard arguments of both sides and perused the record.

¶47

Thus, complainant prosecuted the accused on the allegations that having borrowed hand loan of Rs.8,50,000/- and when failed to repay the same, issued the cheque in question. After its dishonour for want of sufficient funds and on the failure of accused to pay the same, despite service of notice complainant prosecuted him. However, they have entered into compromise whereby complainant agreed to receive Rs.4,50,000/- in 3 instalments. Accepting the compromise, the trial Court disposed of the case, permitting payment as per the schedule and imposing sentence of imprisonment in the event of default.

¶48

Instead of honouring the compromise, the accused has approached the Sessions Court. After suspending the sentence and on the failure of accused to comply with the interim order, the Sessions Court instead of deciding the appeal on merit has dismissed the same on

¶49

7 -

¶50

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶51

the ground that interim order is not complied with. If the interim order is not complied with, the proper course available to the complainant was to take coercive steps against accused to execute the order. It was not a ground for the Sessions Court to dismiss the appeal itself. The accused ought to have given opportunity to address arguments and at the same time, directing the complainant to approach the trial Court for executing the order as the condition precedent for suspension of sentence was not complied with.

¶52

It is pertinent to note that before this Court

¶53

vide order dated 10.03.2020 sentence was suspended subject to deposit of 50% of the fine amount, excluding the amount already deposited (if any). If this order is also not complied with, then also the complainant may proceed against him by requesting the trial Court to take coercive steps against the accused.

¶54

8 -

¶55

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶56

Therefore, matter requires remand to the Sessions Court. If there is no compliance of the interim order dated 10.03.2020 passed by this Court, the trial Court is at liberty to proceed against the accused in accordance with law and accordingly, the following:

¶57

ORDER

¶58

Petition filed by the accused under Section 397 r/w 401 Cr.P.C is allowed.

¶59

The impugned order dated 28.03.2019 in Crl.A.No.310/2018 on the file of LXI Addl.City Civil and Sessions Judge, Bengaluru, is set aside.

¶60

Crl.A.No.310/2018 on the file of LXI Addl.City Civil and Sessions Judge, Bengaluru, is restored to the file. Both complainant and accused are directed to appear before the trial Court on 24.04.2025 without waiting for notice from it.

¶61

If on that day, learned counsel for the accused failed to appear before the Court, the Sessions Court is at liberty to issue

¶62

9 -

¶63

NC: 2025:KHC:15273 CRL.RP No. 679 of 2019

¶64

non-bailable warrant against the accused and secure his presence.

¶65

On securing the accused through NBW, if accused offer bail, he may be released on bail.

¶66

If the learned counsel for accused failed to represent the accused and proceed with the matter, the Sessions Court may appoint an Amicus Curiae to represent the accused and after hearing arguments on behalf of complainant and accused, dispose of the matter in accordance with law.

¶67

Both learned counsel for complainant and accused shall co-operate with the Sessions Court to dispose of the matter at the earliest, preferably within a period of two months from 24.04.2025.

¶68