Karnataka High Court
Smt Rekha Janardhan vs Sri S N Gowda on 30 July, 2012
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRL.RP.NO.185/2012
BETWEEN:
SMT. REKHA JANARDHAN
PARTNER OF MESSERS WINNOVA WORLD
HAVING OFFICE AT NO.4 & 5
50/2, 100 FEET ROAD
SARAKKI 6TH PHASE
J.P.NAGAR
BANGALORE - 560078. ... PETITIONER
(BY SRI N.SATISH KUMAR ARADHYA, ADV. FOR
SMT. SANDHYA JAMADAGNI, ADV.)
AND:
SRI S.N.GOWDA
PROPRIETOR OF MESSERS CNS INFOTECH
OFFICE AT NO.287
36TH CROSS, SEVENTH BLOCK
JAYANAGAR (W)
BANGALORE - 560078. ... RESPONDENT
(BY SRI B.S.SATYANAND, ADV.)
THIS CRL.RP IS FILED UNDER SECTION 397 CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 10.11.2011 PASSED BY THE P.O., FTC - XVI,
BANGALORE IN CRL.A.NO.211/2011 DISMISSING THE
APPEAL AND THEREBY CONFIRMING THE JUDGMENT
AND ORDER DATED 02.02.2011 OF CONVICTION AND
2
SENTENCE PASSED IN C.C.NO.24317/2009 ON THE FILE
OF THE XVI ACMM, BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel on both sides and perused the record.
2. Parties are known to each other. Petitioner issued cheque dated 20.07.2009, bearing No.097574, drawn on Union Bank of India, Bangalore City, for a sum of Rs.6,13,000/- towards discharge of the legal liability. The cheque having been presented for encashment, was returned with endorsement "Exceeds arrangement". A demand notice dated 21.07.2009, was issued to make good the dishonoured cheque amount. Notice was served on the payee on 23.07.2009. Amount having not been paid within the time allowed, complaint under Section 200 Cr.P.C. was filed to punish the accused for the offence under Section 138 of N.I. Act. Petitioner-accused appeared and pleaded not guilty. During trial, complainant deposed as PW.1 and marked 3 Exs.P-1 to P-7. Accused was examined under Section 313 Cr.P.C. and statement was recorded. Defence evidence was not adduced. Learned Magistrate finding the accused guilty, acting under Section 255(2) of Cr.P.C. passed an order convicting the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay fine of Rs.6,54,000/-. Rs.6,51,000/- was ordered to be paid as compensation to the complainant in case the fine amount is realised. Feeling aggrieved, accused filed Crl.A.No.211/2011 in the Sessions Court at Bangalore City. Appeal was dismissed by a judgment dated 10.11.2011. Feeling aggrieved, accused has filed this criminal revision petition.
3. There is no dispute that petitioner issued Ex.P-1 towards discharge of the liability. Ex.P-1 was returned with endorsement "Exceeds arrangement" as is evident from Ex.P-2. Demand notice is at Ex.P-3 and the postal acknowledgment with regard to service of 4 notice is at Ex.P-5. The courts below have rightly applied the presumption under Section 138 of N.I. Act and there being no probable defence, the presumption having not been rebutted, have found the accused guilty of the offence under Section 138 of N.I. Act.
4. However, learned Magistrate is not justified in sentencing the petitioner to pay fine of Rs.6,54,000/-. The cheque being for Rs.6,13,000/-, fine amount ought to have been for Rs.6,15,000/-, out of which, Rs.6,13,000/- has to be paid as compensation to the complainant. To the said extent, learned Magistrate has committed error and the Appellate Court having failed to notice the said aspect, has dismissed the appeal.
In the result, petition is allowed in part. The judgment of conviction for the offence punishable under Section 138 of N.I. Act passed by the learned Magistrate and affirmed by the learned Sessions Judge are upheld. Sentence imposed on the petitioner to pay fine of Rs.6,54,000/- is modified. The petitioner is sentenced 5 to pay fine of Rs.6,15,000/- and when realised, to pay to the complainant Rs.6,13,000/-. The balance amount be forfeited to the State Government. In case of default, the petitioner-accused shall undergo default sentence as ordered by the learned Magistrate.
Petitioner has deposited 25% of the cheque amount in the trial Court. Trial Court is directed to release the same in favour of the complainant. Four months time is granted for the petitioner to deposit the balance fine amount in the trial Court. Bail bond and surety bond executed pursuant to the order passed in this petition shall be in force for a period of four months. If the balance fine amount is not deposited within the time allowed, the bail bond and the surety bond shall stand cancelled and the petitioner shall surrender before the trial Court to serve the custodial sentence.
Sd/-
JUDGE ca