IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE:
THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.675/2015 BETWEEN:
V.RAO GULUR S/O LATE GULUR SESHAGIRI RAO, AGED ABOUT 76 YEARS, NO.104, SAPTAGIRI RESIDENCY, VII, KATRIGUPPE, VIVEKANANDA NAGAR, BSK STAGE III, BANGALORE-85 ... PETITIONER [BY SRI N.MANOHAR, ADV.] AND:
SREEHARI RAO B. KODIKAL S/O BHASKER RAO V. KODIKAL, AGED ABOUT 44 YEARS, R/AT NO.143, SURVEYOR STREET, BASAVANAGUDI, BANGALORE-560 004 …RESPONDENT [RESPONDENT SERVED BUT UNREPRESENTED.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER IN C.C.NO.24934/2007 ON THE FILE OF 22ND ACMM, BANGALORE AND CRL.A.NO.686/2010 PASSED BY THE PRESIDING OFFICER, FTC-XV, BANGALORE AND ALLOW THE PETITION BY MODIFYING THE ORDER TO AN EXTENT OF DOUBLE THE AMOUNT OF CHEQUES AND DIRECT THE ACCUSED TO PAY THE DOUBLE THE CHEQUE AMOUNT TO THE PETITIONER/COMPLAINANT BY ALLOWING THE PETITIONER WITH AWARDING COSTS.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present petition has been filed by the petitioner/complainant challenging the judgment passed by the Presiding Officer, FTC – XV, Bangalore in Crl.A.No.686/2010, dated 11.12.2014, whereunder the judgment of conviction and order of sentence passed by the XXII Additional Chief Metropolitan Magistrate and XXIV Additional Small Causes Judge, Bengaluru City in C.C.No.24934/2007, dated 06.08.2010 was confirmed and insofar as the fine amount is concerned, the same has been modified and accused was sentenced to pay a fine of Rs.1,60,000/- and in default to pay the fine amount, to undergo simple imprisonment for a period of ten months and accused is directed to pay remaining balance amount of Rs.30,000/- and in default to pay fine amount, to undergo simple imprisonment for a period of four months.
2. I have heard the learned counsel for the petitioner. The respondent, though served with the notice, has remained absent.
3. The facts leading to the complaint are that the accused borrowed a loan of Rs.1,75,000/- from the complainant and subsequently he paid Rs.55,000/- through two cheques. For the remaining amount, he issued two cheques for a sum of Rs.50,000/- each and one cheque for a sum of Rs.20,000/-. Totally, he has issued three cheques for a sum of Rs.1,20,000/-. When those cheques were presented for encashment, the same were returned dishonored as the payment was stopped by the respondent/accused. After issuance of legal notice, a complaint was filed under Section 138 of Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘the Act’).
4. The complainant got himself examined as PW.1 and examined one witness as PW.2 and got marked Exs.P1 to P11. Accused examined himself as DW.1 and also got examined one witness as DW.2 and he has not got marked any documents.
5. After hearing the learned counsel appearing for the parties, the Court below convicted the accused for the offence punishable under Section 138 of the Act and sentenced him to pay a fine of Rs.1,30,000/-, in default to pay the fine amount, to undergo simple imprisonment for a period of six months. Out of the fine amount, Rs.1,20,000/- was ordered to be paid to the complainant. Being aggrieved by the said order, the complainant preferred Crl. Appeal No.686/2010. The said appeal was heard by the Additional Sessions Judge, FTC – XV, Bangalore and by judgment dated 13.04.2011, the same was disposed of by allowing the appeal and the sentence passed by the Trial Court is enhanced and the accused is convicted and sentenced to pay a fine of Rs.2,40,000/- and default sentence was also imposed to undergo simple imprisonment for a period of six months. Being aggrieved by the said order, the accused preferred Criminal Revision Petition before this Court in Crl.R.P.No.748/2011. This Court by order dated 19.11.2011, allowed the petition and remitted back the matter to the First Appellate Court on the ground that the application filed under Section 5 of the Limitation Act praying to condone the delay in filing the appeal has not been considered by the First Appellate Court and by keeping open the said application, the impugned order was came to be passed. In that light, the order in Crl.A.No.686/2010 dated 13.04.2011 was set aside and the matter was remitted back to the First Appellate Court to hear the application filed under Section 5 of the Limitation Act and then to enter into the merits of the appeal. Thereafter, present impugned order has been passed.
6. It is the specific contention of the learned counsel for the petitioner that the First Appellate Court without considering the provision of law under the Act has reduced the sentence and convicted the accused and sentenced him to pay fine of Rs.1,60,000/-. As per Section 138 of the Act, it ought to have imposed a sentence of double the cheque amount. It is his further submission that when Crl.A.No.686/2010 was heard and decided, the accused was sentenced to pay fine of Rs.2,40,000/- with default sentence. Without considering the said fact and without looking into the provisions of law, the impugned order has been passed. On these grounds, he prayed to allow the petition and to modify the sentence.
7. The respondent has remained absent. There is no representation.
8. For the purpose of brevity, I quote Section 138 of the Act which reads thus:-
“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 6[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months* from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 7[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section, “debt or other liability’ means a legally enforceable debt or other liability.”
9. On close reading of the said Section shows that if any person commits an offence under Section 138 of the Act, he shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The word used in the said Section is “shall” which indicates that the Court is not having any discretion to exercise power and reduce the fine amount. The only discretion which has been granted under the said Section is that it can impose sentence upto two years or both the sentence as well as fine or it can impose only fine. While imposing sentence, word used is “may” which gives discretion and Court can impose sentence lesser than two years. But there is no discretion to reduce the imposing a fine. Under the said facts and circumstances, the First Appellate Court without considering the said provision of law has only imposed a sentence of Rs,.1,60,000/-. Even it has not looked into the earlier order. No reasons have been assigned for the lesser sentence of fine imposed under Section 138 of the Act when section itself mandates that the sentence will be double the cheque amount. Under such circumstances, I feel that the First Appellate Court erred in imposing the sentence.
10. Insofar as the grounds arrived at by the First Appellate Court for disposal of the appeal, neither the complainant nor the respondent/accused have challenged the same. This petition has been preferred for a limited purpose only in respect of the imposition of the sentence of fine. Under such circumstances, other findings of the First Appellate Court are not disturbed.
11. In the light of the discussion held by me as aforesaid, the petition is allowed in part. The sentence imposed by the Presiding Officer, Fast Track Court –XV, Bangalore in Crl.A.No.686/2010 dated 11.12.2014 is modified and the respondent - accused is convicted and sentenced to pay fine of Rs.2,40,000/- and in default to pay fine amount, to undergo simple imprisonment for a period of six months. Out of the fine amount, an amount of Rs.2,30,000/- is ordered to be paid to the complainant and remaining amount of Rs.10,000/- is to be deducted as a fine amount and the same may be credited to the State Treasury.
PMR Sd/- JUDGE