Karnataka High Court
Sri Janardhan V vs Smt Uma Abhilash Iyer on 1 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.58/2016
C/W.
CRIMINAL REVISION PETITION NO.438/2020
IN CRIMINAL REVISION PETITION NO.58/2016:
BETWEEN:
1. UMA ABHILASHA IYER
D/O LATE N.S.ANANTHA IYER
AGED ABOUT 46 YEARS,
RESIDING AT NO.A-101,
PURVA HEIGHTS, BILEKAHALLI,
BANNERGHATTA ROAD,
BANGALORE-560 076. ... PETITIONER
(BY SRI. KASHYAP N. NAIK, ADVOCATE)
AND:
1. V. JANARDHAN
SON OF VENKATESH
MAJOR,
RESIDING AT NO.10,
GOVINDASHETTY PALYA,
ELECTRONIC CITY POST,
BANGALORE-560100. ... RESPONDENT
(BY SRI. M.D.BASAVANNA, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE AND
MODIFY THE IMPUGNED JUDGMENT AND SENTENCE DATED
12.03.2014 PASSED BY THE XXII ADDITIONAL CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY IN
C.C.NO.12697/2009, TO THE EXTENCE OF QUANTUM OF
COMPENSATION GRANTED TO THE PETITIONER AND
ACCORDINGLY SENTENCE THE ACCUSED TO PAY A SUN OF
RS.30,00,000/- (RUPEES THIRTY LAKS ONLY), BEING DOUBLE
THE CHEQUE AMOUNT, APART FROM THE FINE AMOUNT OF
RS.5,000/- (RUPEES FIVE THOUSAND ONLY) TO BE PAID TO
THE STATE EXCHEQUER.
IN CRIMINAL REVISION PETITION NO.438/2020:
BETWEEN:
1. SRI. JANARDHAN V,
S/O VENKATESH,
AGED ABOUT 49Y EARS,
NO.10, G.S.PALYA,
ELECTRONIC CITY,
BANGALORE-560100. ... PETITIONER
(BY SRI. M.D.BASAVANNA, ADVOCATE)
AND:
1. SMT. UMA ABHILASH IYER
D/O LATE N.C.ANANTHA IYER,
RESIDING AT NO.A-101,
PURVA HEIGHTS, BILEKAHALLI,
BANNERGATTA ROAD,
BANGALORE-560076. ... RESPONDENT
(BY SRI. KASHYAP N. NAIK, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED 12.03.2014 IN
C.C.NO.12697/2009 PASSED BY THE HONBLE XXII ADDITIONAL
CHIEF METROPOLITON MAGISTRATE, BENGALURU CITY AND
IMPUGNED ORDER DATED 01.10.2015 PASSED IN
CRL.A.NO.359/2014 PASSED BY LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU (CCH-69).
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 20.01.2025 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard learned counsel for the petitioner and learned
counsel for the respondent.
2. The parties are referred to in the name of
complainant and accused for the sake of brevity and convenience
of the Court.
3. Crl.R.P.No.58/2016 is filed by the complainant
praying to set aside and modify the order of conviction and
sentence dated 12.03.2014 on the file of the XIII Additional
Chief Metropolitan Magistrate, Bengaluru City in
C.C.No.12697/2009. Crl.R.P.No.438/2020 is filed by the accused
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against the judgment of the First Appellate Court in
Crl.A.No.359/2014 dated 01.10.2015 on the file of LXVIII
Additional City Civil and Sessions Judge, Bengaluru City (CCH-
69) contending that criminal appeal is not maintainable and that
only revision petition is maintainable.
4. The complainant filed the complaint under Section
200 of Cr.P.C. alleging that the accused person has committed
an offence punishable under Section 138 of N.I. Act stating that
the accused being a vendor of immovable property bearing Site
No.134, new Khatha No.2/1, old Khatha No.14/4 situated at
Doddanagamangala Village, Begur Hobli, Bengalore South Taluk,
coming under the jurisdiction of Konnappana Agrahara Village
Panchayath and measuring East to West 44 feet and North to
South 90.09 inches, in all measuring a total extent of 3,993
sq.ft., the complainant and accused had entered into a sale
agreement in respect of the said immovable property for a total
sale consideration of Rs.40 lakhs dated 07.01.2008. The
complainant had paid a sum of Rs.10 lakhs, the accused had
acknowledged the same. In view of the above said transaction,
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the complainant further paid a sum of Rs.5 lakhs on 14.02.2008
for which the accused had acknowledged the same on
16.06.2008. The accused received a sum of Rs.5 lakhs towards
part sale consideration, then complainant had paid totally a sum
of Rs.20 lakhs. It is the further case of the complainant that
accused had issued a legal notice to the complainant on
08.06.2008. After receipt of the said notice, the complainant
suitably replied through her advocate on 14.06.2008 for the
above said reasons and transaction, the complainant and
accused came into mutual understanding, the accused agreed to
return the above said part sale consideration for a sum of Rs.15
lakhs received from the complainant. For the above said liability
on the demand, the accused had issued Cheque in favour of
complainant for a sum of Rs.15 lakhs dated 10.02.2009 and
when the same was presented, it was dishonoured. Again the
accused requested to represent the same, accordingly, the same
was represented, once again it was dishonoured. Hence, got
issued the legal notice on 24.03.2009 through her advocate by
RPAD and UCP and the postal receipt produced, the postal
acknowledgement has not been received through legal notice,
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the complainant had demanded to pay the said Cheque amount.
The accused on receipt of the said legal notice, gave reply notice
through his advocate on 07.04.2009 simply denying the liability.
Hence, complaint was filed and the Trial Court taken cognizance
and registered criminal case against the accused for the offence
punishable under Section 138 of N.I. Act.
5. In support of the case of the complainant, she
examined herself as P.W.1 and got marked the documents as
Exs.P1 to P12. On the other hand, the statement of the accused
was recorded under Section 313 of Cr.P.C. and he also led
evidence and examined himself as D.W.1 and got marked the
documents as Exs.D1 to D4.
6. The Trial Court having considered the material on
record, convicted the accused for the offence punishable under
Section 138 of N.I. Act and directed to pay a fine of
Rs.15,05,000/-. Out of the same, Rs.5,000/- is payable to the
State. In default of payment of fine, the accused to undergo
simple imprisonment for a period of six months. Being aggrieved
by the order of the Trial Court, both the complainant and the
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accused have filed Criminal appeals before the City Civil Court
and Sessions Judge. The appeal filed by the accused is
numbered as Crl.A.No.359/2014, wherein prayed the First
Appellate Court to set aside the conviction and sentence and the
appeal filed by the complainant is numbered as
Crl.A.No.687/2014, wherein prayed the Court to modify the
judgment and enhance the compensation. The First Appellate
Court having reassessed the material on record, dismissed the
appeal filed by the accused and also dismissed the appeal filed
by the complainant stating that the same is not maintainable,
but given liberty to prefer an appeal before the competent Court.
Hence, the complainant has filed Crl.R.P.No.58/2016.
7. The main contention of the learned counsel for the
complainant in Crl.R.P.No.58/2016 is that no dispute with regard
to issuance and dishonour of Cheque and also there is no dispute
with regard to issuance of Cheque Ex.P1 for repayment of Rs.15
lakhs. The counsel would contend that more than 5 years have
been elapsed by the time when the Trial Court passed an order
and failed to take note of the fact that inspite of this gap, not a
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single paisa more is awarded as compensation to the
complainant on the principal Cheque amount of Rs.15 lakhs. The
transaction being a commercial transaction between the parties,
the Trial Court ought to have awarded the compensation amount
by calculating the interest minimum at 18% per annum on Rs.15
lakhs besides awarding damages. It is contended that the
leaned trial Judge failed to notice the unrighteous conduct of the
accused throughout the proceedings in the Trial Court and
therefore, he ought to have imposed a maximum imprisonment
of 2 years, in the event of default of payment of compensation
amount within 30 days. It is further contended that the object of
introducing Section 138 to the Act is only to encourage
commercial transactions and not to discourage and punish such
fraudulent persons, who issue Cheques with a dishonest motive.
It is contended that the order passed by the Trial Court is
erroneous and when the appeal was filed under Section 372
Cr.P.C. against the impugned judgment and sentence, the
appeal was dismissed with liberty to prefer an appeal before the
competent Court. Hence, the present revision petition is filed
before this Court.
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8. In Crl.R.P.No.438/2020 filed by the accused, it is
contended that the Trial Court committed an error in convicting
the accused and both the Courts failed to consider the material
available on record and the Cheque is not issued towards legally
enforceable debt. It is contended that Cheque was issued on
threat and coercion and one Mico Manju @ Payasa came to him
along with other 10 persons and taken him to Lakkasandra to
the house of one Corporator. The said Mico Manju and other
persons assaulted him and taken him forcibly to the house of the
Corporator and obtained the Cheque. It is contended that he
has repaid the earnest money to the respondent and even then,
the respondent has not returned the Cheque to him and clearly
set out the defence throughout in the cross-examination and
also in the evidence, when he was examined as D.W.1 and both
the Courts failed to take note of said fact into consideration and
committed an error in convicting and sentencing the accused.
Hence, it requires interference.
9. Learned counsel appearing for the accused in
Crl.R.P.No.438/2020 in his argument would vehemently contend
10
that the Trial Court failed to consider Ex.D4, cancellation of sale
agreement. It is also not in dispute that earlier there was an
agreement between both of them. Learned counsel would
vehemently contend that signature and contents of Ex.P1-
Cheque not belongs to the accused. Learned counsel would
further contend that matter is civil in nature and through the
rowdy elements, Cheque was obtained and the same was
misused. The answered elicited during the course of cross-
examination of P.W.1 shows that there was no any transaction.
Learned counsel would vehemently contend that Sessions Court
rightly dismissed the appeal filed by the complainant and
revision filed by the complainant is not maintainable for
enhancement. Hence, allow the revision petition filed by the
accused and dismiss the revision petition filed by the
complainant.
10. Per contra, learned counsel for the
respondent/complainant would contend that issuance of Cheque
is not disputed and execution of agreement and cancellation of
the same is also not in dispute. When the agreement was
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cancelled, Cheque was given and when the said Cheque was
presented, it was dishonoured. The counsel would vehemently
contend that the Trial Court as well as the First Appellate Court
rightly considered the evidence available on record and convicted
the accused. However, learned counsel would contend that the
First Appellate Court committed an error in coming to the
conclusion that the appeal is not maintainable. Though the
counsel would contend that Cheque was obtained under coercion
and force, no complaint was given and the same is not admitted
and the defence is not proved. Learned counsel would contend
that payment was made in the year 2009 and double the amount
was not awarded. Hence, the appeal was filed and now the
revision petition is filed.
11. Learned counsel for the respondent/complainant in
support of his argument, relied upon the judgment in R.
VIJAYAN VS. BABY AND ANOTHER reported in (2012) 1 SCC
260 and brought to notice of this Court paragraph Nos.17 and
18, wherein discussion was made with regard to invoking Section
357(1)(b) of the Code and the provision for compounding the
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offences under Section 38 of the Act. Even where the offence is
not compounded, the Courts tend to direct payment of
compensation equal to the Cheque amount (or even something
more towards interest) by levying a fine commensurate with the
Cheque amount. A stage has reached when most of the
complainants, in particular the financing institutions (particularly
private financiers) view the proceedings under Section 138 of
the Act, as a proceeding for the recovery of the Cheque amount,
the punishment of the drawer of the Cheque for the offence of
dishonour, becoming secondary. Learned counsel also brought to
notice of this Court discussion made in paragraph No.18,
wherein it is observed that in those cases where the discretion to
direct payment of compensation is not exercised, it causes
considerable difficulty to the complainant, as invariably, by the
time the criminal case is decided, the limitation for filing civil
cases would have expired. As the provisions of Chapter XVII of
the Act strongly lean towards grant of reimbursement of the loss
by way of compensation, the Courts should, unless there are
special circumstances, in all cases of conviction, uniformly
exercise the power to levy fine up to twice the Cheque amount
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(keeping in view the Cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
12. The counsel also relied upon the judgment in P.
SURESH KUMAR VS. R. SHANKAR reported in (2007) 4 SCC
752 and brought to notice of this Court paragraph Nos.13 to 18,
wherein discussion was made with regard to Section 138 and
also Section 29(2) Cr.P.C. and so also Section 357 Cr.P.C. that
consideration for payment of compensation is somewhat
different from payment of fine. The counsel also brought to
notice of this Court paragraph No.18, wherein it is discussed that
purpose of imposition of fine and/or compensation, however,
must be considered having regard to the relevant factors in mind
as envisaged under Section 357 of the Code of Criminal
Procedure. Learned counsel referring these two judgments would
contend that this Court has to allow the revision petition and
enhance the fine amount and sentence, in case of default.
13. In reply to this argument, learned counsel appearing
for the accused would contend that Cheque is disputed and no
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such special circumstances to enhance the compensation. In
reply to this argument of the learned counsel for the accused,
learned counsel for the complainant would contend that in the
reply notice itself the accused admitted the cheque and now
cannot dispute the same.
14. Having heard learned counsel for the complainant
and learned counsel for the accused and also having considered
the principles laid down in the judgments referred supra, the
points that would arise for consideration of this Court are:
(i) Whether the complainant has made out a
ground to allow Crl.R.P.No.58/2016 for
enhancement of compensation?
(ii) Whether the accused has made out a ground
to set aside the order of conviction and
sentence as prayed in Crl.R.P.No.438/2020?
(iii) What order?
Point Nos.(i) and (ii)
15. Having heard respective counsel and also the
material available on record i.e., both oral and documentary, it is
the specific case of the complainant that there was an
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agreement and the same was subsequently cancelled. It is the
contention of the complainant that earnest money which was
paid under the agreement was repaid by way of issuance of
Cheque at Ex.P1 and the same was dishonoured. It is also not in
dispute that after dishonour of the Cheque, notice was issued
and reply was given in terms of Ex.P9. Having perused the reply
also, the accused admitted the issuance of subject matter of
Cheque and also admitted receipt of Rs.20 lakhs as earnest
money which was given towards sale consideration. It has to be
noted that, in the reply notice at paragraph No.1, the accused
admitted and acknowledged receipt of an amount of Rs.20 lakhs.
In paragraph No.2, admitted that he paid back the entire
amount and there is no due from his end. However, admits that
Cheque was issued at the time of executing the cancellation of
sale deed on 20th day of November, 2008 and the same was
incorporated therein in the cancellation of sale agreement.
Having taken note of this admission in the reply notice as well as
evidence available on record, there is a clear admission with
regard to issuance of Cheque and the same is towards earnest
money which has been received under the sale agreement.
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Though it is contended that signature and contents of Ex.P1-
Cheque not belongs to him, but admission takes away the case
of the accused.
16. The other contention of the complainant is that by
bringing the rowdy elements, Cheque was collected by one Mico
Manju and he threatened, assaulted and taken him to Corporator
and the Cheque which was obtained forcibly was misused. But,
admittedly, answer is elicited from D.W.1 that he has not given
any complaint for taking the Cheque by force and misusing the
same. The defence was not proved though it was contended
that it was taken forcibly by rowdy elements. It is admitted that
Cheque was given towards cancellation of sale agreement for
return of the earnest money. Hence, the very contention of the
learned counsel for the accused that the material has not been
appreciated by both the Courts in a proper perspective cannot be
accepted. Having read the entire evidence of P.W.1 and also
D.W.1, there is a clear admission on the part of the accused that
subject matter of Cheque was issued towards cancellation of
agreement and return of earnest money and the contention that
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matter is civil in nature cannot be accepted, once the issuance of
Cheque has been admitted. Hence, I do not find any ground to
interfere with the order of conviction and sentence.
17. Now the question before this Court is with regard to
enhancement of sentence is concerned. Admittedly, an appeal is
filed before the First Appellate Court and the First Appellate
Court taking note of the material available on record, discussed
in detailed whether the appeal is maintainable and the First
Appellate Court, while answering point No.1 in
Crl.A.No.687/2014 filed by the complainant, taken note of the
grounds urged in the appeal and discussed with regard to
Section 372 Cr.P.C. in view of amendment. The amendment
also says "the victim shall have a right to prefer an appeal
against any order passed by the Court acquitting the accused or
convicting for lesser offence or imposing inadequate
compensation, as such appeal shall lie to the Court to which an
appeal ordinary lies against the order of conviction of such
Court". Referring this Section, learned counsel would contend
that the appeal is maintainable. The same is objected by the
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learned counsel for the respondent placing the order passed by
this Court in Crl.P.No.6072/2014 dated 24.02.2015, wherein the
short point had arisen for consideration before this Court
whether appeal can be maintained against the judgment of
acquittal for offence punishable under Section 138 of N.I. Act,
before the jurisdictional Sessions Court under proviso to Section
372 Cr.P.C. The First Appellate Court also taken note of
reasoning given by this Court that a person under the complaint
U/s. 138 of N.I. Act cannot be termed as 'Victim' defined U/s.
2(wa) Cr.P.C. This Court also taken note of proviso to Section
142 N.I. Act. The First Appellate Court having considered the
same, in paragraph No.36, comes to the conclusion that the
word 'Complaint' under proviso to Section 142 of N.I. Act and
the 'victim' U/s. 2(wa) of Cr.P.C. are not one and the same.
Hence, comes to the conclusion that appeal filed under proviso
to Section 372 Cr.P.C. is not maintainable. In the case on hand
also, the complainant has preferred the appeal for inadequate
compensation awarded as per the proviso to Section 372 Cr.P.C.
Hence, the appeal is not maintainable. However, while passing
the order, the First Appellate Court has given liberty to prefer an
19
appeal before the competent Court. Learned counsel referring
the same would contend that in view of the said observation, the
present revision petition is filed before this Court, since the First
Appellate Court comes to the conclusion that the appeal is not
maintainable.
18. Having considered the grounds urged in the petition,
it is not in dispute that an amendment was brought into Section
372 Cr.P.C. and the word used in Section 372 Cr.P.C. is that the
victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for
lesser offence or imposing inadequate compensation, as such
appeal shall lie to the Court to which an appeal ordinary lies
against the order of conviction of such Court. It is also
important to note that under Section 374 Cr.P.C., 'Appeals from
convictions', an appeal lies to the First Appellate Court as against
the conviction and proviso of Section 377 Cr.P.C. is 'Appeal by
the State Government against sentence'. The appeal provision is
also made under Section 378 Cr.P.C. i.e., 'Appeal in case of
acquittal'.
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19. Now the question before this Court is what is the
remedy to the complainant, if the complaint is filed under
Section 200 invoking Section 138 of N.I. Act and provision is
only made to the State to file an appeal against the sentence.
No doubt, Section 372 Cr.P.C. is also very clear that victim shall
have a right to prefer an appeal against any order passed by the
Court acquitting the accused or convicting for lesser offence or
imposing inadequate compensation, the Court has to take note
of the revisional provision to file the revision before the High
Court under Section 401 Cr.P.C. and also revisional powers of
District and Sessions Court under Section 397 Cr.P.C.
20. Having read the powers enshrined under Section 401
Cr.P.C., this Court would like to extract the same, which reads as
hereunder:
"401. High Court's powers of revision.--(1) In
the case of any proceeding the record of which has
been called for by itself or which otherwise comes
to its knowledge, the High Court may, in its
discretion, exercise any of the powers conferred on
a Court of Appeal by sections 386, 389, 390 and
391 or on a Court of Session by section 307, and,
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when the Judges composing the Court of Revision
are equally divided in opinion, the case shall be
disposed of in the manner provided by section 392.
(2) No order under this section shall be made
to the prejudice of the accused or other person
unless he has had an opportunity of being heard
either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed
to authorise a High Court to convert a finding of
acquittal into one conviction.
(4) Where under this Code an appeal lies and
no appeal is brought, no proceeding by way of
revision shall be entertained at the instance of the
party who could have appealed.
(5) Where under this Code an appeal lies but
an application for revision has been made to the
High Court by any person and the High Court is
satisfied that such application was made under the
erroneous belief that no appeal lies thereto and
that it is necessary in the interests of Justice so to
do, the High Court may treat the application for
revision as a petition of appeal and deal with the
same accordingly".
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21. This Court would like to rely upon Section 397 of
Cr.P.C which reads as follows:
"Section 397 - Calling for records to exercise
powers of revision
1. The High Court or any Sessions Judge may call for
and examine the record of any proceeding before
any inferior Criminal Court situate within its or his
local jurisdiction for the purpose of satisfying itself
or himself as to the correctness, legality or
propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when
calling for such record, direct that the execution of
any sentence or order be suspended, and if the
accused is in confinement, that he be released on
bail or on his own bond pending the examination
of the record.
Explanation - All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this Sub-Section and of section
398.
2. The powers of revision conferred by Sub-Section
(1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry,
trial or other proceeding.
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3. If an application under this section has been made
by any person either to the High Court or to the
Sessions Judge, no further application by the same
person shall be entertained by the other of them."
22. Having read the proviso of Section 401 of Cr.P.C, it
is clear that the High Court has got power to exercise revisional
jurisdiction. The proviso of sub-section (4) of Section 401 of
Cr.P.C is very clear that where under this Code, an appeal lies
and no appeal is brought, no proceeding by way of revision shall
be entertained at the instance of the party who could have
appealed and the proviso of sub-section (5) of Section 401 of
Cr.P.C is clear that where under this Code an appeal lies but an
application for revision has been made to the High Court by any
person and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to do, the High
Court may treat the application for revision as a petition of
appeal and deal with the same accordingly.
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23. The other provision of sub-section (1) of Section 397
of Cr.P.C is very clear that the High Court or any Sessions Judge
may call for and examine the record of any proceeding before
any inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when calling for
such record, direct that the execution of any sentence or order
be suspended and sub-section (3) of Section 397 of Cr.P.C is
very clear that if any application under this section has been
made by any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be
entertained by the other of them. Having read Section 397 of
Cr.P.C, it is clear that both the High Court or any Sessions Judge
can exercise the power under Section 397 of Cr.P.C and powers
are vest with both the High Court and Sessions Court.
24. In the case on hand it has to be noted that an appeal
was field before the First Appellate Court and the First Appellate
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Court comes to the conclusion that appeal not lies but again
instead of giving liberty to file revision, it is mentioned that
appeal can be filed hence, it appears that the same is a mistake.
In the present revision petition, the counsel for the petitioner
invoked both Section 397 read with Section 401 of Cr.P.C.
Having taken note of the revisional jurisdiction, this Court has to
examine the material available on record.
25. Now, the question before this Court is that whether
this Court can enhance the sentence. Admittedly, the Trial Court
while convicting the accused, ordered to pay an amount of
Rs.15,05,000/- and out of that amount, Rs.5,000/- is ordered to
be paid to the State and remaining amount of Rs.15,00,000/- is
ordered to be paid to the complainant as compensation. It is
important to note that the case of the complainant is that
accused is liable to pay an amount of Rs.15,00,000/- and hence,
he issued the Cheque and the same was dishonoured with an
endorsement 'funds insufficient' but the Trial Court only the
Cheque amount is ordered to pay to the complainant and hence,
filed this revision petition.
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26. This Court in the judgment reported in ILR 2000
KAR 2588 in the case of B HARIKRISHNA vs MACRO LINKS
PVT. LTD. AND ANOTHER held that inadequacy of sentence of
fine, the Courts must take in to consideration all aspects of the
case including financial loss caused and in this judgment detail
discussion was made and referred the two provisions of the N.I.
Act i.e., Sections 30 and 117 of N.I. Act. Under Section 30, the
drawer of a cheque is bound, in case of dishonour by the drawee
or acceptor thereof, to compensate the holder, provided due
notice of dishonour has been given to, or received by, the
drawer as provided under the NI Act. Section 117 prescribes
rules as to compensation payable in case of dishonour of
promissory note, bill of exchange or Cheque, by any party liable
to the holder or any indorsee. To determine the compensation
the rules are:
(a) The holder is entitled to the amount due under
the instrument together with the expenses
properly incurred in presenting, noting an
protesting it;
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(b) When the person charged resides at a place
different from that at which the instrument
was payable, the holder is entitled to receive
such sum at the current rate of exchange
between the two places;
(c) An indorser who, being liable, has paid the
amount due on the same is entitled to the
amount so paid with interest at (eighteen per
centum) per annum form the date of
payment until tender or realization thereof,
together with all expenses caused by the
dishonour and payment;
(d) When the person charged and such indorser
resides at different places, the indorser is
entitled to receive such sum at the current
rate of exchange between the two places;
(e) The party entitled to compensation may draw
a bill upon the party liable to compensate him,
payable at sight or on demand, for the
amount due to him, together with all expenses
properly incurred by him. Such bill must be
accompanied by the instrument dishonoured
and he protest thereof (if any). If such bill is
dishonoured, the party dishonouring the same
28
is liable to make compensation thereof in the
same manner as in the case of the original
bill.
27. This Court having considered Section 117 of N.I. Act
referred above, comes to the conclusion that said provision is
clear that the drawer of a Cheque, is bound in case of dishonour
of the Cheque, to compensate the holder in accordance with the
rule under Section 117 at least to the tune of Cheque amount
and expenses or costs. Taking note of the said fact into
consideration and also the aim and objects of N.I. Act especially
Chapter XVII thereof, held that sentence of fine, if imposed,
ought to be the minimum equivalent to the amount of the
Cheque and proportionate costs incurred by the payee or holder
in due course with outer limit of twice the Cheque amount.
28. The Court also taken note of the judgment of the
Apex Court in the case of BHASKARAN vs SHANKARAN
VAIDHYAN BALAN AND ANOTHER reported in VIII (1999)
SLT 147 and in terms of the dictum it is held that Magistrate
cannot impose a fine exceeding Rs.5,000/- and the Apex Court
29
held that impugned fine imposed in that case was by the
Magistrate First Class and also discussed with regard to Section
29 of Cr.P.C and clarified that though the power and jurisdiction
of imposing fine is limited to Rs.5,000/-, it is open for the
Magistrate to resort to Section 357 Cr.P.C for awarding
compensation even exceeding Rs.5,000/- if the trial is before the
Court of the Magistrate First Class and hence, it is held that
necessity of awarding compensation in the cases coming under
Chapter XVII of the NI Act. Taking into note of the discussions
made by the Court, it is held that revision petition succeeds and
the fine imposed is modified and enhanced from Rs.10,000/- to
Rs.31,500/- with default clause to undergo simple imprisonment
for four months in case of non-payment of fine.
29. This Court also would like to rely upon the judgment
of the High Court of Jammu & Kashmir and Ladakh at Srinagar
pronounced on 22.11.2021 in CRN(M) No.21&22/2020 in a
similar set of facts and circumstances, a detail discussion was
made to the scope of revision as well as Section 357 of Cr.P.C
and also discussed in detail the judgment of the Apex Court in
30
the case of BIR SINGH vs MUKESH KUMAR reported in
(2019) 4 SCC 197 and the case of R VIJAYAN vs BABY AND
ANOTHER reported in (2012) 1 SCC 260 which is referred by
the petitioner's counsel and allowed the revision petition and
remanded the matter to the Trial Court for considering the
imposition of sentence upon the respondent making an
observation that the Trial Court has miserably failed to take all
these aspects into consideration and has awarded Rs.2.00 lac, to
be paid as compensation to the complainant, when admittedly
the Cheque amount was to the tune of Rs.10.00 lacks.
30. This Court also in the judgment reported in 2004
SCC ONLINE KAR 219 in the case of NAGARAJ vs
GOWRAMMA discussed regarding maintainability of the revision
petition before Sessions judge for enhancement of sentence and
held maintainable.
31. I have already pointed out that revision is
maintainable under Section 397 of Cr.P.C and either the High
Court or Sessions Court can exercise the jurisdiction. In the
case on hand also though appeal was dismissed, under the
31
provisions of Section 397 of Cr.P.C, the High Court can exercise
its revisional jurisdiction.
32. The learned counsel for the petitioner also relied
upon the case of R. VIJAYAN referred supra wherein in
paragraph 17, the scope of Section 357 of Cr.P.C is discussed in
detail and in paragraph 18 it is held that where the discretion to
direct payment of compensation is not exercised, it causes
considerable difficulty to the complainant, as invariably, by the
time the criminal case is decided, the limitation for filing civil
cases would have expired. The Courts should, unless there are
special circumstances, in all cases of conviction, uniformly
exercise the power to levy fine up to twice the Cheque amount
(keeping in view the Cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
33. The factual aspects of the case is that when the
amount of Rs.20 lakh was taken and admitted and Cheque was
issued for refund of amount of Rs.15 lakh and the same was
bounced, the Trial Court has not exercised its discretion instead
32
of that only ordered to pay the Cheque amount and fails to take
note of Section 117 of N.I. Act. Even, the Apex Court in the case
of R VIJAYAN referred supra held that at least simple interest
thereon at 9% per annum as the reasonable quantum of loss
would have been considered. In the case on hand also it has to
be noted that transaction was taken place in the year 2008 for
sale consideration of Rs.40 lakh and sale did not come through,
the fact that the accused received a sum of Rs.5 lakh towards
part sale consideration and also complainant had paid totally a
sum of Rs.20 lakh agreeing to pay the remaining sale
consideration after getting the original documents. The fact that
notice was issued and when, transaction did not come through,
agreed to refund the amount of Rs.15 lakh on demand. The fact
that the Cheque was dishonoured is also not in dispute. Such
being the case, when the amount was paid long back i.e., in the
year 2008, the Trial Court ought to have been taken note of the
said fact into consideration. Hence, it is a fit case to exercise the
revisional jurisdiction to compensate the complainant for the
amount he has paid since no dispute with regard to the payment
of said amount is concerned. If any order is passed, though it is
33
a case for awarding the double the amount of Cheque taking into
note of the factual aspects of the case, it is appropriate to allow
the revision petition in part filed by the complainant and enhance
the compensation. Hence, I answer point No.1 as affirmative
and point No.2 as negative.
Point No.3:
34. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition filed by the complainant in Crl.R.P.No.58/2016 is allowed and ordered to pay the compensation of Rs.22,10,000/- and out of the said amount, ordered to pay an amount of Rs.22,00,000/- to the complainant and an amount of Rs.10,000/- shall vest with the State.
The criminal revision petition filed by the accused in Crl.R.P.No.438/2020 is dismissed.
Sd/-
(H.P. SANDESH) JUDGE ST/SN