Partly allowed

K.Issac v. a.Ashok Kumar

Telangana HC5 Mar 2024CRLRC/2208/2013

Case brief

AI extract

What is this about?

The High Court exercised revisional jurisdiction to reduce the sentence imposed for cheque dishonour. The Court reduced the imprisonment to the period already undergone by the petitioner and directed the payment of enhanced compensation to the complainant.

What did the court decide?

Sentence of imprisonment reduced to period already undergone; compensation enhanced to Rs. 2,50,000/- payable within six months.

K.Issac Vs a.Ashok Kumar — Cheque Dishonour | Telangana HC (2024)

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NOTE : The Petitioner/ Accused was directed to be released on bail by the order of the High Court dated 25-09-2013 in Cd.R.C.M.P.No.3288 ol 2013 in^Crl.R.C No.2208 of 2013.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA^{AT HYDERABAD}

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TUESDAY, THE FIFTH DAY OF^MARCH TWO THOUSAND AND TWENTY^FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL

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CRIMINAL REVISION CASE NO:^{2208oF 2013}

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Criminal Revision Case under Section^{397 and 401of CrPCto set aside} the iudgment dated 12-09-2013^passedin Crl.Appeal^{No. 327 of 2012on the file} of the Court of the Metropolitan Sessions^{Judge,Hyderabad,preferred against} the^judgment dated 10-04-2012^{passed in C.C.No.22 ot 2011 on the file of the} court of the ll Special Magistrate,^Hyderabad.

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Between:

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K.lssac, S/o. lsreal, Retired^{Employee,R:/o.D.No.2142, Mallikariun Nagar, Bodupal,} Pheerzadiguda, Opp Uppal Bus^{Depot, R.R.District.}

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...PETITIONER/APPELLANT/ACCUSED.

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ANO

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A.Ashok Kumar, S/o.^{Late Venunadham, Service,Rl/o. Flat No. 11013'} Janapriya Apartments, Attapur,^{Hyderaguda, Hyderabad...COMPLAINANT.}

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The State of Andhra Pradesh,^{Rep. by the Public Prosecutor, High Court of}

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l.A NO: 1OF 2013(CRL CMP. NO: 3288 OF 20131

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Petition under Section 397⁽¹⁾ Cr.P.C.^{praying that in the circumstances} stated in the affidavit filed^{in supportof the petition, the High Court maybe} pleased to suspend the^judgment in Crl.Appeal No.³²⁷ of^{2012 daled 12-09-2013} on the file of the Metropolitan Sessions^{Judge' Hyderabadby enlarging the} petitioner/Accusd on bail, pending disposal of the above revision^case.

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Counsel for the Petitioner^{: SRI.M ARUN KUMAR} Counsel for the Respondent^{Nos.2:SRI VIZARATHALl,}

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ASST.PUBLIC PROSECUTOR^(TG)

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Counsel for the Respondent^{No.'l:Mr. AK} HILESHWAR, FOR

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SRI ATULSI RAJ GOKUL

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The Court made the following:^ORDER

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i I

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//J

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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL

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CRIMINAL REVTSION CASE No.2208 oF 2013

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ORDER

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The present Criminal Revision Case is liled seeking to set aside the judgment dated 12.09.2013 in Criminal Appeal No.32Z of 2OL2 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court,,) in confirming the judgment dated 10.04.2or2 in c.c.No.22 of 2o 1 l (old c.c.No.205 of 2OlO on the file of I A.C.M.M., Hyderabad) on the file of the learned II Special Magistrate, Hyderabad (for short, "the trial Court").

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Heard Mr. M. Arun Kumar, learned Amicus Curiae appearing on behalf of the petitioner, Mr. Akhileshwar, learned counsel representing Mr. A. Tulsi Raj Gokul, learned counsel for respondent No. I and Mr. vizarath Ali, learned Assistant public Prosecutor appearing for respondent No.2 State.

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The brief facts of the case are that the petitioner/accused misrepresented that he was the owner of the plot bearing No.47 in LIG category, at shamshabad ring road town allotted by Hyderabad Urban Development Authorit5r and entered into an agreement of sale with respondent No. l/ complainant. Believing

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his words, the complainant paid an amount of Rs.2,OO,OOO/-^to the accused as an advance and the accused^{agreed to register the} plot in the name of the complainant on^payment of^balancesale consideration within two months from the^{date of the said} agreement. But the accused failed^{to registerthe said plot inspite} of repeated requests made by the^complainant.

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The complainant demarded the accused^{to show him the} original document pertaining to the said^{property. Then,the} accused admitted that he had no^{such agreementwith him.} However, the accused assured him^{that he would return the} advanced amount and thereby issued^{the chequebearing} No.OOO184 dated O5.11.2009 for Rs.^{1,00,0OO/-and another} cheque bearing No.OOO185 dated^10. ll.2OO9^{for Rs.1,OO,0OO/-} both drawn on State Bank of Hyderabad, Tarnaka^Branch, Secunderabad. The accused requested the^{bomplainantto} present the said cheques in the month of February,^2012.

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On presentation, the two cheques were returned^{for the} reason "insufficient funds". The complainant^{issued legal notices} for the two cheques. The accused acknowledged^{the said notices} but failed lo repay the amount^{due within the stipulatedtime.} Hence, the accused was^alleee$. !o Sve^{committed the ol-f-e-lce-}

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punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").

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The trial Court vide judgment cited, supra sentenced the accused to suffer rigorous imprisonment for a period of one year and pay compensation of Rs.2,OO,OOO/_ to the complainant within four months from that day @ Rs.5O,00O/_ per month commencing from May, 2Ol2 in default of any single instalment, he was directed to undergo simple imprisonment for a period of two months. Aggrieved thereby, accused preferred an appeal.

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7 . The appellate Court vide judgment cited supra dismissed the appeal confirming the judgment passed by the trial CourtAssailing the same, the present Revision.

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During the course of hearing, learned counsel for the petitioner stated that the trial court as well as the appelate Court concurrently found the petitioner guilty for the offence punishable under Section.138 of N.I.Act. Learned counser relied upon the order dated la.O4.2OlZ passed by this Court in Crl.R.C.M.p.Nos.t7o8 & t7O9 of 2Ot6 inland Cft.C.No.Z882 of 2Q15, wherein and whereby, this Court upon taking into consideration til'e-tlecisions passed by the Hon,ble Supreme Court

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in Damodar S. Prabhu Vs. Sayed BabalaI,^{R. VijayanVs.} Babyz, S.R. Sunil & Company Vs. D.^{Srinivasavaradan3,} Mainuddin Abdul Sattar Shaikh vs.^{Vijay D.Salwiaand} Somnath Sarka Vs. Utpal Basu Mallicks,^{wherein it was held} that, the object of incorporating^{the penal provisions under} Sections 138 to 142 of the NI Act is not only^{to providea strong} criminal remedy to deter the high^{incidence of dishonourof} cheques but a remedy of^{punitive natureand observedthat where} there is a conviction, there should be^{a consequentiallery of itne} amount sufficient to cover the cheque amount^{along with simple} interest thereon at a fixed rate of 9o/o^per annum^{and held that} the interest should be followed by an award^{of such sum as} compensation from the fine amount.^{However, to meetthe ends} of^justice, this Court modified the^{sentence of six months of} simple imprisonment with fine of Rs.^1O,0OO/-, to^imprisonment till rising of the day by^giving set off to the^{period undergone if} any and frne of Rs. 1O,O0,O0O/- of which^{Rs.5O,00O/-wouldgo to} the State and Rs.9,5O,OO0/- as compensation^{to the complainant} which includes Rs.1O,OO0 /- fioe if paid to adjust and out^{of it in}

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'^{20 lo (5) scc663} ':^{(2012) l scc260} r (2014) l6 scc a2 n lzot s1 e scc rzz '^{zo n} 1t61^{scc aos}

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compensation received by complainant, for the balance to pay or deposit within one month from that day, tailing which, the accused was to suffer the default sentence of six months simple imprisonment as imposed by the lower Court. Therefore, he seeks to pass appropriate orders rellng upon the said order.

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l,earned counsel appearing for respondent No. I and learned Assistant public prosecutor opposed the same and contended that respondent No.l underwent severe menta_l agony by roaming around the trial Court as well as the appellate Court. Learned counsel submitted that both the Courts upon appreciating the oral and documentary evidence rightly passed the impugned judgments and sought to dismiss the Revision.

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I O. On behalf of the prosecution, the trial Court examined PWs. I and 2 and marked Exs.pl to p2O. On behalf of the defence none were examined and no document was marked. Upon careful consideration of the oral and documentary evidence, the trial Court observed that pWl, in his erridence stated that the accused rssued Exs.p3 and p4 cheques stating that he would make necessary al:angements in his account, to honour the two cheques, on the date of presentation. Except a vague suggestion of denial that the accused has not issued the two cheques, no

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specific suggestion was made to^PW1 , by the^{accused, stating} that he has not issued the subject cheques.^{According to} accused, he stated that the^{cheques were lost and he madea} complaint to the bank authorities.^{Except making a suggestion to} PWI in that regard,^{accusedhas not chosen to adduce any} evidence to prove his contention.^{The accused also failed to file a} copy of the so called complaint^{made to bank authorities with} regard to the loss of cheques.^{The accused neverentered into the} witness box to depose about the^{loss of cheques. However, from} the documentar5r evidence^of Exs.Pl^{and P2, it was clearthat the} accused claimed to be the^{ownerof the subject plot belongingto} another, entered into an agreement^{of sale with the complainant} and received an amount of^{Rs.2,OO,O0O/-from the complainant} towards advance amount from^{the total sale consideration of} Rs. 10,94,800/-.

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The accused after^{receivingthe legal notices,failed to repay} the amounts. Thus, the^{accused created upon himself a liabitity} of returning the advance amount^{of Rs'2,OO,OO0/-whichis a} legally enforceable liability. Thus,^{the trial Court found that the} accused issu;d Exs.P3 and P4^{cheques in discharge of the said} Iegally enforceable liability and^{renderedthe judgmentcited}

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supra. Tlee appellate Court upon re-appreciating the evidence available on record also found that the ingredients of Section 138 of NI Act are proved by the complainant and the accused failed to raise any probable defence in this case. Hence, the appellate Court dismissed the appeal confirming the judgment passed by the trial Court.

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A perusal of the record shows that this Court vide order dated 25.09.2013 suspended the execution of sentence imposed against the petitioner and ordered him to be released on bail on his executing a personal bond for a sum of Rs.1O,OOO/- with two sureties for a like sum each to the satisfaction of the trial Court pending Revision. Thereafter, the matter underwent several adjournments.

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Having regard to the submissions made by all the learned counsel, on perusing the order dated 18.04.2017 passed by this Court in Cr1.R.C.M.P.Nos. 1708 & ITO) of 2Ot6 inland Cr1.R.C.No.2887 of 2O15 and considering the fact that the petitioner underwent menta_l agony roaming around the trial Court as well as the appellate Court, this Court deems it appropriate to take a lenient view and reduce the sentence

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imposed against^{the petitioner to the periodof imprisonment} already undergone^{bY him.}

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The petitioner^{is furtherdirectedto pay compensationof} Rs.2,50,OOO/-^{to the credit of the trial Court within a period of six} months from today.^{On such deposit, respondent No.l is at} liberty to^{withdraw the same with immediateeffect.}

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If the^{petitioner lails to complythe aJoresaid direction, the} judgment dated 12.09.2013 in Criminal^{Appeal No.327 of 2012} on the file^{of the learned Metropolitan Sessions Judge, Hyderabad} stands^{good in all resPects.}

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L6. With the^{above direction, the Criminal Revision Caseis} disposed of.^{Needlessto mention, the petitioner is at libertyto} work out the^{remediesavailable underlaw.}

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Miscellaneous Petitions,^pending il any,^{shall stand closed.}

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Sd/. CH. VENKATESWARLU DEPUTY REGISTRAR

//TRUE COPY//

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