Smt. Fouziya Shareef Vs Umesh Gowda. K.

&RESPONDENT (BY SMT SARITHA A L, ADVOCATE) THIS CRL.RP IS FILED U/S 397 R/W 401 CR.P.C (U/S 438 R/W 442 BNSS) PRAYING TO SET ASIDE THE ORDER DTD 04.01.2025 IN CC.NO.84/2022 BY PRL. SENIOR CIVIL JUDGE AND JMFC, AT BELTHANGADY, D.K AND CONFIRMED IN CRL.A.NO.105/2025 DTD 19.03.2025 BY LEARNED IV ADDL. DISTRICT AND SESSIONS JUDGE, MANGALORE.

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

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NC: 2025:KHC:35485 CRL.RP No. 993 of 2025

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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Heard learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.

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This petition is filed assailing the concurrent finding for an offence under Section 138 of Negotiable Instruments Act, 1881 (for short, 'Act, 1881'). Petitioner-accused is convicted for the offence and sentenced to pay fine of Rs.2,13,000/-. Out of the said amount of Rs.2,13,000/-, Rs.2,12,000/- is ordered to be paid as compensation to the complainant and Rs.1,000/- is ordered to be paid towards the State expenses.

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The accused filed an appeal before the Appellate Court. There was a delay of 24 days in filing the appeal. The Appellate Court rejected the application for condonation of 24 days delay on the premise that the ground of illness urged in the application is not established. Aggrieved by the said order dismissing the application for condonation of delay of 24 days and also dismissal of appeal, this petition is filed.

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NC: 2025:KHC:35485 CRL.RP No. 993 of 2025

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HC-KAR

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Learned counsel appearing for the petitioner would submit that the Appellate Court is not justified in rejecting the application for condonation of delay of 24 days despite delay being sufficiently explained. It is his submission that the accused is sentenced to pay fine and he is also sentenced to undergo simple imprisonment for six months in case of default in paying the fine amount, as such he would submit, delay of 24 days in filing the appeal should have been condoned by taking into consideration the fact that the petitioner was not keeping well. It is his submission that illness is established from the medical certificate produced by the petitioner.

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Learned counsel appearing for the

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respondent/complainant would submit that the complaint was initiated in the year 2022 pursuant to the dishonour of cheque for Rs.4,10,000/- which was issued on 05.01.2022. Before the Trial Court, there was a settlement between the complainant and the accused and both filed a joint memo on 20.09.2023. Because of the assurance given by the accused that he is going to make payment in two months, the complainant agreed to receive Rs.2,50,000/- as against the claim for Rs.4,10,000/-. Learned counsel would submit that accused defaulted in

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NC: 2025:KHC:35485 CRL.RP No. 993 of 2025

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HC-KAR

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complying with the terms of the joint memo and had paid only Rs.40,000/-. Thereafter, on considering the materials on record, the Trial Court convicted the accused for the offence and imposed fine of Rs.2,13,000/-. Referring to these circumstances, learned counsel would submit that there is no point in referring the matter back to the Sessions Court and there is nothing required to be adjudicated as the joint memo filed before the Trial Court is not rejected.

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This Court has considered the contentions raised at the bar and perused the records.

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Admittedly, the cheque is for Rs.4,10,000/-. Petitioner filed a joint memo before the Trial Court and agreed to pay Rs.2,50,000/- within two months from the date of filing the joint memo i.e.20.09.2023. It is stated that only Rs.40,000/- is paid. The terms and conditions imposed in the joint memo are not complied. Taking into consideration this aspect, the Trial Court has imposed fine of Rs.2,13,000/though cheque which is dishonoured is for Rs.4,10,000/-.

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NC: 2025:KHC:35485 CRL.RP No. 993 of 2025

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HC-KAR

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In case the matter is remitted to the Appellate Court, the possibility of the complainant filing an appeal seeking enhancement of the fine amount cannot be ruled out.

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Anyway, learned counsel for the complainant submits that so far the complainant has not filed a case seeking enhancement of fine. Though the Appellate Court is not justified in dismissing the application for condonation of delay of 24 days, this Court in the peculiar facts and circumstances of this case Court is of the view that the complainant has not made out a case to hear the case on merits.

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Accordingly, petition is disposed of. The order of the Trial Court is confirmed. However, two months time is granted to the petitioner to pay fine amount of Rs.2,13,000/-. Consequently, the amount shall be released in favour of the complainant.

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In case the amount is not paid within two months from today, the petitioner/accused shall undergo simple imprisonment for a period of six months. It is also noticed that earlier the petitioner has defaulted in making payment pursuant to the joint memo filed before the Trial Court.

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HC-KAR

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Considering peculiar facts of this case, it is also made clear that the complainant is entitled to interest @ 6% p.a. on Rs.2,13,000/- from the date it becomes due till the date of payment.

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Accordingly, petition is dismissed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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brn List No.: 2 Sl No.: 24

Smt. Fouziya Shareef v. Umesh Gowda. K.

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Smt. Fouziya Shareef v. Umesh Gowda. K.

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