IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.1264 OF 2016 Between:
Sri Chaluvegowda S/o Channegowda Aged about 40 years R/of Ravuthanahalli Village Shettihalli Post Kattaya Hobli Hassan Taluk Hassan District - 573128.
... Petitioner (By Sri Kumar M D - Advocate) And:
Sri Mallikarjuna S/o Ningappa Aged about 45 years R/of Imatipura Village Kasaba Hobli Alur Taluk Hassan District-573213 (By Sri K G Sadashivaiah - Advocate) ****** ... Respondent This Crl.R.P. is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the judgment of conviction and sentence dated 19.7.2016 passed in Crl.A.No.5/2015 passed by the III Additional District and Sessions Judge, Hassan, confirming the judgment of conviction and sentence dated 03.01.2015 passed by the Civil Judge and JMFC., Alur in C.C.No. 445/2012 for the offence punishable under Section 138 of Negotiable Instrument Act.
This petition coming on for Final Hearing, this day, the Court made the following:
O R D E R This criminal revision petition is directed against the judgment rendered by the Appellate Court in Crl.A.No.5/2015 dated 19.07.2016 dismissing the appeal by confirming the guilt of the accused under Section 138 of the NI Act by the Trial Court in C.C.No.445/2012 dated 03.01.2015 thereby sentencing him to pay a fine of Rs.3,00,000/- and in default to pay fine to undergo simple imprisonment for a period of two years for the offence under Section 138 of the NI Act.
2. Heard the learned counsel for the parties.
3. Factual matrix of the petition is as follows:
The petitioner - accused is said to have taken a hand loan of a sum of Rs.3,00,000/- from the respondent – complainant as on 9.6.2012, in respect of which he is said to have issued a cheque dated 8.8.2012 to the respondent for the said sum of Rs.3,00,000/-. However, when the cheque was presented for encashment, it was returned with an endorsement ‘Funds insufficient’. Hence, the complainant got issued a legal notice to the accused and in spite of the said notice, the petitioner – accused failed to repay the cheque amount. Hence, he lodged the complaint.
After filing of the complaint, cognizance of the offence was taken and sworn statement of the complainant by way of affidavit was recorded. In furtherance of summons, presence of the accused was secured and was enlarged on bail. The substance of the accusation was read over to the accused and he pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the complainant got himself examined as PW-1 and got marked documents as Exhibits P1 to P6. After completion of the complainant’s evidence, statement of the accused under Section 313 Cr.P.C. was recorded. The accused though had denied all the incriminating circumstances appearing against him in the evidence, did not choose to adduce any defence evidence. Subsequently, the court below framed points for consideration and answering the points in the affirmative, proceeded to convict the accused under Section 138 of the NI Act and impose fine as aforesaid.
The said judgment in C.C.No.445/2012 was taken up in appeal before the First Appellate Court in Crl.A.No.5/2015, which came to be dismissed as on 19.07.2016 thus confirming the judgment passed by the Trial Court. It is these judgments which are under challenge in this revision petition seeking to allow the petition and thereby set aside the orders of the Trial Court as well as the First Appellate Court.
4. The matter when taken up this day, the learned counsel for the petitioner – accused files a memo to the effect that out of the total fine amount of Rs.3,00,000/-, the petitioner has deposited Rs.75,000/- (25% of fine amount) before the Civil Judge and JMFC, Alur as on 19.01.2015 and another sum of Rs.75,000/- (another 25% of the fine amount) before the same court as on 22.11.2016. Hence, in all, he has already deposited a sum of Rs.1,50,000/- before the court below. He has submitted in the memo that the petitioner is ready to deposit the balance fine amount of Rs.1,50,000/- in favour of the respondent within two months from this day without fail. Hence, by way of the said memo, the petitioner has prayed this court to permit him to deposit the balance fine amount of Rs.1,50,000/- in favour of the respondent within two months from today and thereby to set aside the judgment of conviction and order of sentence passed against the petitioner.
5. The memo dated 21.10.2019 is taken on record.
In view of the fact that the petitioner – accused has filed a memo undertaking to pay the balance fine amount of Rs.1,50,000/- within two months from today, and as Section 147 of the NI Act provides for accepting the settlement and quashing the conviction when the parties come up before court to settle the dispute, I find it appropriate to allow this petition.
6. Hence, I proceed to pass the following:
ORDER The present revision petition preferred by the accused – petitioner under Section 397 Cr.P.C. is hereby allowed. Consequently, the judgment rendered by the First Appellate Court in Crl.A.No.5/2015 dated 19.07.2016 dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.445/2012 dated 03.01.2015 is hereby set-aside. The accused – petitioner herein is acquitted for the offence punishable under Section 138 of the NI Act.
However, it is made clear that if the petitioner – accused fails to deposit the remaining fine amount of Rs.1,50,000/- with the Trial Court within two months from today as agreed to in the memo dated 21.10.2019, then the Trial Court in C.C.No.445/2012 shall proceed against the accused to recover the balance fine amount of Rs.1,50,000/-, in accordance with law.
Sd/- JUDGE KS