Varuna Builders Rep By Its Managing ... vs Lic Housing Finance Ltd on 22 October, 2009

[Cites 4, Cited by 0]

Karnataka High Court

Varuna Builders Rep By Its Managing ... vs Lic Housing Finance Ltd on 22 October, 2009

Bench: Jawad Rahim

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22"" DAY OF OCTOBER, 2009

BEFORE

THE HON'BLE MR. JUSTICE IAWAD RAH.IM"'A.V,':".*  

CRL.R.P. NO. 540 OF 2005    
BETWEEN: 

VARUNA BUILDERS REP BY ITS MA.NiAGI.NG"DIRE'CTQR'

BHAKTHAKUMAR, NO 211, 2N'D__FL,OOR,  *
SWISS COMPLEX, RACE'COuRSE._R'OADs 'A  
BANGALORE 2    
 '-   PETITIONER
(BY MR. SV.V.,.SHASTR'I,_:'
RAvINDRANATH.K., ADv,y ,  A

AND:     «

LIC  OPUSI NG'; F1" NAN' CE LTD" '

H-.l;\VI_NC}I "TS'~vA'REA«RTO'FPf_1CE AT

CANARA I~»au'TD~,AL BLI1I.,I,L:ING

BANGALORE 25,' .  

REP BY-.ITS.M',ANAGER K.G. BHAT
,;f "   RESPONDENT
._':f(B__Y,,SRI M.S.'BHAGwAT, ADV.)

>i<**

7_ "THIS""PETITION IS FILED U/S 397, 401 CR.P.C. BY
THE'~.AD\I'OCATE FOR THE PETITIONER PRAYING THAT THIS

 x,HON'BLE";.COURT MAY BE PLEASED TO SET ASIDE THE
. _ GRD_ER 'DT.25--2--00 PASSED BY THE P.O., FTC--X, B'LORE IN
 =.'CRVL.A_.NO.7I0/03 AND THE }UDGMENT DT.11--11--03
  PASSED BY THE XII ACMM, B'LORE IN CC NO.28S21/99,
  E"l?C.,

F'\

 €<-A
 

 '~A_Dv.  *AI'\JD MR.



2

THIS PETITION IS COMING ON FOR FURTHER
HEARING THIS DAY THIS COURT MADE THE FOLLOVVING2-*

ORDER

Convicted accused is in revision against the Judgment in Crl. A. No. 710/2003 dated 25~»o2~«2ooo _ Judge, Fast Track Court~X, Bangalore_-~'confifirmSi:ng.e Judgment in C. C. No. 28521/19997_:datede. file of XII Addl. Chief Metropolitan"i.if4'agistr.ate,r City, convicting him for thelilpffencell"pu:nishaVble under Section 138 of theA---..._"li-!egotiaeblue"~.,__'I..ii'Strument Act and consequent sentence pa_s.sed'~... 'V I " The'lea.rried4SI'*£i_o'unsel Sri Shastry appearing for the petitioner_has._ser'iou.s|y assailed the Judgments and cont<ind§ir'.g the're,i_s____rnanifest non consideration of legal »iss'ues ..V_re.lyat.iVn"g___to maintainabiiity of the Compfainant itself a'sg"aii'soV'viieane'tC of cause of action to prosecuting the g resp4ond"'egnt;I The said contentions are seriously opposed by ':j.thei--iearVned counsel for respondent -- Complainant. :1 (V ..

3. Keeping in mind what is urged by both sides, I have examined the records, from which foilowing facts are manifest:

The respondent -~ Complainant sought pfOS§?£0'ti_0n_ of the petitioner ~company incorporated under :3.i__c:_t for the offence punishable underySectionv----:'j;~'38"'~::o'f,V Negotiable Instrument Act ( for:1__sho~rt,.:"t4l1ie1 accusation that it had borrowed 'fr-orra money for construction of resid4ent:i_ai.,buildiridof the various nature like apartment, p'i"ojected itseif to be a very successful builde'r..'_'compaVny involved in reai estate, the respondenti_C~orri~pl'ai.n'ant sanctioned loan of Rs.60 lakhgto be"re'paid" vv'i'th«"'i.nterest. The accused availed the 'T 9' '''--.b'eriefiti.o'f f'i*r1anciai'assistance in the first week of November _1'V99;7," "tVhVere.after continued to evade its iiability. On reipeatedildemands being made the petitioner accused "-issued' cheque dated 31-05-1997 covering part of the loan sum of Rs.20,00,000/--. The said cheque on _'pi'esentation was dishonoured by the bank for insufficiency of funds by its endorsement dated 08-07-1997. It A '1 _ in ,' /h"\;"'i /' 5 : -'/ necessitated issuance of statutory notice requiring it to pay the amount covered under the cheque, which was also not complied. In the resultant position prosecution was_--sought and learned trial Judge being satisfied that prima summoned the accused to face trial.

4. The accused did enter~ap§:iearanc,e'through 'itsl' Managing Director and resisted the p:E,osécutiQi~..%,V was urged that there was no>c.aus_e ofA"ac_tion_:ftor'''rn'a'intaining'' ' the complaint and secondly,-------the."d..efect'"i'n...issuance of statutory notice was highléightedfilﬁulti,.é;s.g:c'ould be seen from the coyntentii'oris, u'r'gVed.:be_'fore.th'e trial Court the accused remainedgdocile ,a'ridjg'si'|'ent"as' regards borrowing money and loan _t.ransactio_n is i-:on'cer'ned. A vA«.y-Complainant was called upon to establish the i"'ch,a.rg'e,'"whvi--ch';;burden was discharged through its witnesses, by 'n'am'--e, Mr. K.G.Bhat, who is examined as PW1 and in "Vl"x._:s'upp_ortV"of his version 8 documents are produced, which .' corhpirises of impugned cheque marked as Ex.P1, bank "endorsement at Ex.P2, letter to the accused at E><.P3, copy 9:' 'tx ig=,v~ /' of the acknowledgement at Ex.P4, postal cover at Ex.P5, postal letter at Ex.P6 and xerox copy of the authorlty___|etter at Ex.P8.

6. The accused is examined as three documents.

7. The learned trial Judgéycofnsideriedthe :e§?'i_ti.e'}~1..;cje lead by the complaint and'l._a'ccused'- and foun§J'*v--it.ha3t the' evidence of the Complalnanty___co'n.t_a'inys dlre'cti_'Alncrlminating material which outwééglhed~.g_t?h'e: 'fdejfence and recorded conviction. Against suc'h"'vefrdict._':the was in appeal in A.' before the appellate Court reiteratingitéhevpllea of i"nn_r;cence, which found no favour and the came--..to____tJ_e, rejected by the impugned Judgement dated Against both these Judgments the accused' 'Es"_*ag'aiVn before this court in this revision.

" .'4As referred to in para supra learned counsel Srl would contend that as far as the loan transaction is "concerned the Complainant has already resorted to recovery Wfalroceedings by initiating civil suit in o.s. No. 5583/1998, :*'x .-.c - 5 'iv ' 'ml N /-

6 which is pending adjudication. He submits that the Complainant has ciaimed high and excessive amount not legitimately due and the accused has rightly resi"s.ted:"'*the said claim. He submits that Complainant desp.ite right to institute civil proceedi_ngs__hasHs'¢i'm.:;»!ta'n.eousl_yV"

initiated prosecution against the azccuseidj vvihicimghas undue harassment and Dossi'ij!_e"humiliation.

9. He submitsthat VAtowmai'i'-1.t'ain such cause of action it is incumbent""u'io0n"-C.o'nfl;;>,iV:a'i»nant to establish that all the ingredients'bresijritied=--undet..V'S'ection 142 of the N. I. elnthis regard he would say that asx75ar'--ans cheque and bank endorsement are concerned.'_:theaccused may not have much to say. But .--Wags provisions'o'f"CV|ause (b) of Section 138 of the N. I. Act.rnand_atorily_j..it requires issuance of statutory notice to 'll-ie read out to me the contents of it to show Ethat E:<,__F53 is as vague and bereft of material particulars can under no circumstances be construed compliance of requirement of law.

\ »~ _ 'Z15

10. His contention is in Ex.P3 the only information conveyed is about cheque having been dishonoured for insufficiency of funds and calling upon the accused to immediately contact the Officers of the Complainajntsagnyd'to pay the amounts aiong with interest and costs-of submits in Ex.P3 there is no men-tion-'_:of_Wtii:e,_ date of presentation of cheque and no amount. Once Ex.P3 is esche--wie'd_% from .consider'atiorz 'Vbeingfn defective notice, complaint coul-d:..not"h_ave been entertained and consequent cognizaancei be'tai<en. Lastly, he would submit that even'presiumjinQ--t_hoVug;h"not acceding, the notice is 'Section 138 of the N. E. Act, it was not "duly = all accused. Hence, on that grounydu also theicomplaint is unsustainable.

"contra, the learned counsel for complaint -- comJpany.'reiterating that Ex.i33 confirms to all the '*.,rec;uirem_A(:nt of law and as no specified format is prescribed under Act or Rules made thereunder the form in which Ex.P3 is issued is enough. He would submit that Ex.P3 contains all necessary information that is required to '. '"'-

'g .

: ﬂ--.'l'*- ' t' "'2, be conveyed to the accused in the matter relating to dishonour of cheque. Since Ex.P3 contains alijV:iaaate'ri4al particulars about date of cheque, amount cov=*~3':r'edV its dishonour resulted on presentatiornpall tyhatyuwas required to be conveyed to the accusedihvyvarnsl"done."spud having not utilised the opVpo:vrtu_nity."to vpalyst'he"'*amount"' covered under cheque is liable..€oVr'"Lp.en~aAl actiionyeven though he might have paid _

12. SO" 39, ::§ivl.,'_ there is no denial 998 is filed which is pencibinblgjlly that the said suit relatesentire and not the amount covered underthe Lastly', he would contend that, be that "'«--..as 'it%'m.ay,"i--t.he civi'i""'iiiability has to be distinguished from crimirial:'*l.iatzilitylijfastened on the drawer upon dishonour of and the criminal liability subsists despite '~..payme"n,t__A'of amount covered under the cheque. In no way "'jthe>'i"r*fA_'pugned Judgment is invalidated. L)

13. The grounds for and against the impugned Eudgment urged by both sides has received"~.rn.yi'~..Vfuii concerned and for sake of convenience and c_3_airity:'fo'ij'i-oAw':.ggi--.» points are formuiated.

"(1) Whether statutory underCbuse(b)ofSecUon138tftheiyi;nActE.

is necessarily to be in a'i1y"iprescribed*afiorrn? not what wiii bvetxhe r.eq'u-isitei"'p.artic'uEa'i*s~-that need be furnish'edg~.inc__tfhge be in conformityto the...re.qfuirerri:.en't"o'f'ti3Vd?éuse (b) of secuoniﬁﬁiﬁthenLiLAeﬁe<-uf in 'a:>stvatutorx,t'notice the accused is n-eceVsse.r:i~3y"bge'"in:forrned that he has 15 days tirnVe"to ciear.'A'the--.._:a'i7'iount covered under the _ _cheque V_oi'.iVt',--isAe_no'utVgh that he is caiied upon to di;sch_argte""«th_e_v iiabiiity covered under the chequé?"

'14.u--7f--:AAs"'regards first question is concerned, the conlspyevcttuséiof the provisions of the N. 1. Act under Section n138.._t0 £43 are reievant. Provisions of Section 138 of the N. provides for action on dishonour of cheque against Vwthe drawer. There are certain pre-requisites. Ciause (b) of

-"E ,4 ii/'i*i"\"

i I I 0 Section 138 of the N. I. Act envisages issuance of notice to the accused intimating dishonour of cheque. But, _i'tr~.cf:oes~.,not provide that while issuing notice the caiied upon to pay amount within _.1.5. c|_ays.--'m"

15. It is necessary to note«,tha_'_ti 'in ciiau_:se':(bk) section (1) under the Sectioin,:"'1.38 oAf"'the _iV\zi;i..V'1'.'9Act..t:iere mention that the notice to bVe...i.ssu_e'd._,to the-accgused shouid specify 15 days period 'iﬂfor3'-;;afgiiAi1g"the':amount. Since the period of 15 days__ is pyroiyisions of Section 138 (1) (t3) N.'._:I.,_"A.ct,--.:'notiiceiiuwili not be defective. Againihiaisv toabe téf:g;'en:"c,rjji'y- froH1"'tne Section 142 of the N. I. Act, _ _"coG":x£IVzAr\icE'~oF'~oFFENcEs.- i§_i--.otw_ithstaind-Eng" anything contained in the Code, "o§Criminai Procedure, 1973 (2 of 1974),» .('a)"~v.,_no.',v"court shall take cognizance of any oi'_fenc_ec"punishabie under Section 138 except u._'pon'a compiaint, in writing, made by the ~~pa;+/ee or, as the case may be, the holder in due course of the cheque;

(1)) such compiaint is made within one month of the date on which the cause of action arises under ciause (c) of the proviso to Section 1.38;

.' '-, "ca"

(C) no court inferior to that of a Metro9oE§tan"*.g Magistrate or a 3udiciai Magistrate of the ciass shali try any offence punishabie Section 138."

16. The cause of action referred 142 of the N. I. Act is traceable tdrgciaese of the N. I. Act, which readsv't_hu_s: ' i i V "(c) the drawer of such___i:c'heq-uue fa"i'is.it:;')_ make the payment of'._4_t'i':..e staid.ya'in_o~nh't.gof many to the payee or as the-casev 'the hoider in due cotirse or thie 'chegue-.wit'hi«n "fifteen days of the_.r§--ece;ij'i§.t__._of. :sVaid_.'..hoti'ce':"M":

of Ciause (c) and (b) of Section'i=348 irof'the"'i.\fA; .Iq'.."".-Qctiiiishows that on the dishonour of chequewhat"»isg_V_V'requi'red is to raise a demand through a notice the drawer of the cheque to pay amount o_f-"mohreylcoirefed under the cheque. In the said clause there i.s"am:""mention that notice must contain demand to make payment within 15 days. Hence, the notice cahnot it be-rendered defective if the period within which the amount H'-

i 5 r,'\ to be repaid is not mentioned. Oniy Ciause (c) of Section 138 of the N. I. Act postulates that if the drawervoitchyeque fails to pay the amount covered under chequ'e"--ii*i(i'!.EI§i7i*:§_:V'15 days after receipt of notice he wili be Iiabie..foi=.p'ro:secution.Vi Therefore, combined reading ofI_thes,e jj.proy'is.io.n'~wvo:uid,the '4 that for initiation of prosecution it is necessaviry' to; issues notice to the debtor informiniglhimyyofiidisihofiouiri oi cheque and calling upon oriihéh amount of money covered unde.r_V:tiiie that is done the notice wili of Section 138 of the N. I. unotice under Ciause (b) of Section is issued to avoid prosecution, an adyiantage debtor to pay the amount wit_hinii.15 daysivto avoid prosecution. That ciause mean inoticeninnustuspecify 15 days period.

18." In the instant case, Ex.P3 is a cryptic ietter. But, Ex.P'3_is certainiy in the form of a intimation to the accused i.inio«rming him of the dishonour of the cheque mentioning 'the amount covered under the cheque and caliing upon him to contact the Officers imrnediateiy. It meets the requirement and is issued in terms of under Ciause (b) of Section 138 of the N. I. Act. I am satisfied ttiaiiftihovugh Ex.P3 couid have been in the manner it is but when tested from the point..of__yiew'V'of"~:§i;gVi'eg_'aiity_V'it»,4 meets basic requirements and defective. it i % 2 V V

19. This viewﬁis furtheVrA'ivioi'ti_iied.by,the_ﬁdecision of the Apex Court in the asr;,Aiius;ry:ip:tpERs v. ARIHANT FERTILIZERS &'--C.HEMIC'ii'.x.L,S: ii:ri:'.vi2§oo8(2) scc 321, in pa ra--9 _'_'We"'~.,hav'e:,,_ noticed "he_Vreir.i'before the notice 1'"daited.fT31--ii'U42O'OQ' issued" by the appeliant to ':,V_Re_spon'di-ant71."-.Ah---._information thereby was Oniy givenf_that..__the,.---cheque when presented was -ret'i:rr1'ed»,'"iinpassed" by the Bank __ authori'ties';.on'=_the plea that the account had ' been c'io..sed. It was averred that in such a isituvation thewcomplainant was free to take any _iegai"«--steps against the accused to get the _ "~a_mo'i;int"--of his pending biils. By the operative "'pr5_rt_ion"'of the said notice, the respondent was ca|ie.r_i7upon to remit the payment of his «pend"ing bilis, otherwise suitable action shali * be taken."

V 20. In para--2O of the said decision the Apex Court ' hfurther heid thus:

"Service of a notice, it is trite, is imperative in character for maintaining a compiaint. It 3 \ ;.

3 '-..\ I;

Iii creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b) appended to Section 138 of__ the Act, the complaint petition would not Parliament while enacting imposed ce.rtain'*- ..

One of the conditions was _servic'e.i'j-- ' maintainable.

said provision consciously conditions. _ i of a notice making demand of the paVyment_f_of the amount of cheque as is...ev_iden_'t fro'rri';V.th'eV'_' use of the phraseology "payment._of_ t~:he.__s'a_id_ amount of money". Such as no_'tni.<:e h*a_s'"'i_O issued within a p__er~lod of 30i"(s:'.cl"1.5) days from the date of receipt-o'f.__fnfvorrriat.i,on_from the bank in regard to the return --0.f'th'.e._c~heque as unpaid. The statute'w.envlsages'- application of the penal 'pr-0visi.ons.*"A pegna.E'~p.ro.vision should be const.ru'e_d.';'. strictly}. the -{condition precedent wherlefor se'rv»ice---of notice}, 'It is one thing to sVay..yth'at"'tl'i«:e.__ ,de--r_n'a_n"d m.ay_ not only represent the unp»aidvV':ari1ou«nt under Cheque but also other .in'cid-egntal"lw...ge'x.penses like costs and interests," _butfth'e._sarrle would not mean that the""n_otice 'w_ou.ld° hie» vague and capable of two ,iVnterp'retations.'*. An omnibus notice without sp'ecifying=--_.as to what was the amount due V "u,n~de'r.. the '"d'i's'honoured cheque would not s_ub.serv~e the requirement of law. Respondent

--ti"-wasd'n.ot_j..called upon to pay the amount which . w'as_"_v»--payable under the cheque issued by it. The amount which it was called upon to pay offer the entire sum of Rs. 8,72,-409. ' demand was made upon it to pay the said sum Rszi-23,72,409/--.

w--as'"the outstanding amounts of bills i.e. _ The notice was to respond to the said demand. Pursuant thereto, it was to N0 of Rs.1,00,000 which was tendered to the complainant by cheque dated 30-4-2000. E5 What was, therefore, demanded was the entire sum and not a part of it."

21. From the observations in Para~»9 and 10 supra, it is clear that the Apex Court was considering the...__issue about the legality of the notice on the basis prosecution under Section 138 of the N. I. The Apex Court noticed that the noti'c'e----on the it prosecution was launched in letter°and._spirit"a£no,t::,e"

nature of demand towards loa-nra<_:ivan.ced totAlVthe"'~de'bto'r and" A calling upon him to pay,-btack the e'ntire_sum;' 'In which there is reference also to dis4hon'ou'r_to»i::i _As the demand made the rel-ating to due of Rs.8,72,409/- and demandi was pay entire amount and as derngiinlydiiwas n'oi._v_tiVn"relation to Rs.1,00,000/~ covered by the VZidishono'u:Ared4A"«cVheque, the Apex Court held that it is not 1"mée_tiln"g:re.c;_u'i.lre'ment of under Clause (b) of Section 138 of the"-N. Act for the reason that phraseography used in ,Eun.id_er Ciause (b) of Section 138 of the N. I. Act is to pay _' "amount of money', which refers to amount of money "-covered under the cheque. In the instant case, we do not I 6 have such defect. The document Ex.P3 though cryptic; contains only reference to cheque amount, its number, date and aEso its fate, ie., dishonour and also reason for dishonour, ie., insufficiency of funds. Hence.,..VViT_ie.reEy because in the impugned notice 15 days -'zf:__ot._ mentioned to clear Iiabiiity it does defective.

22. My attention was' r-ightéy' drawn _ii)futi':e:'*. Judgment referred to supra'.7«.vvi1erein"'the': Aiziex Court observed thus: A 'i'Section"'speak of a 15 days notice.. It service of notice and _.payment' offthe. amount of cheque within 15 days__from""th..e...date of receipt thereof. When _ t_he_sta~tute prescribes for service of notice ans'p4ecVi'fy'Ei'ng--:"a particular period, it should be 4' ex.pres.s|fVy stated. In absence of any such .st'ipuIation, it is difficult to hold that 15 days notice was thereby contemplated. The High Court therefore, was not correct in arriving at the aforementioned finding."

"l:£_'W ,,«:;;'/"' \j~--' . X

23. Taking into consideration the position of law as laid down by the apex court and the conspectus of the provisions contained in the Negotiable Instrtirnentsp.-Act, it has to be affirmatively held that there is no p,rtesc;r,i,:bed format for issuance of statutory notice under-'..'c'lau-se'r-{C}:of Section 138 (1), but the notice mustcontaincpalrticulvairs V the cheque, date of dishonour andl"r,eas_o'n for'-- must also call upon the dravve'r_,:to._,pay"the a.moun~t:'of''money'' ' covered under the ch_eque,,i-*"'but-h.esettpartictilars are mentioned, the noticehowever, in the notice, instead thev:/dravver to pay the amount of mo:ney._cove"red_v'"undver'-the-'cheque, the payee raises a demand 'i?or-the" e'ntire""--.camount of loan exceeding that ampogslntssand if notice is as if it is a demand notice to 'repay loan, then in terms of the judgment of the apex cot§_rt., it $}ii~i.,l_|_ i3.e'ri'nva|id. In the instant case, as we have seen, the notice it contains all required particulars and is held to be valid. We 'A5:-h§ai'lAnot consider the other aspects canvassed. ~rf\ 'f"\«"'~/

3.,

25. A perusal of the record shows complainant is a juristic person and hence has examined its area m.an.age'r._as PW1 to represent it. In his testimony, he the transactions between the com_pl.ai,nant_"and"~t_he'"ac'cuse_d"

and has also proved he has been:.yau'thiorisled"to"

the complainant company. ThVe'::efore;'- no technivcariinfiirmity..L' is noticed to hold that :yconfspIai.nant Jinot duly represented. It the company incorporated under juristic person and will its officers who by it shall be de facto cor'rID|a..ina.n"t. . V i _.26. T'ne_:'evi'dence"°of PW1 supports the entire case ""'*-v.,proje'cted by theicomplainant company. In fact, accused a serious dispute about the business t'ria_nsact.ion's_.'Between the complainant and itself and has also questioned the averments in the complaint V"-V'_'Areg'a"rding liabiiity. On facts, it is seen complainant has produced the impugned cheque, bank endorsements, copy of legal notice and also that it was duly served on the '1 .4 5 'i_ ' 'K ! "J accused. Dishonour of the impugned cheque is also estabiished. Burden cast on the compiaénant is, therefore, discharged. The accused had opportunity to reburE'~--.ysuch evidence to show that there was no 'existing |iabiiity' when the complaint was filed. He so. The chailenge posed to the inipug'ned on technicai grounds as discussed 4a_bov_e. I,'V_-th'ere~for%e,'~~.d'o~, not find any error in the procevedirngs V.befor'ec_t_he"gtria"|court' or in assessment of the~eyEden"ce"oi§. Vr"e.cord.é 'V"'i"i'ie"Vfinding of the trial court holding the'Vpe-vtitionerif"gfuiity_ of the offence under Section§..1i_"s'»:E':>V','V'_' N Act' n'eeds7nj_o VViVntae'rference. *The"V*ne§tt»s.Véééoueistion is regarding sentence. Compiaina'n..ta%% haVd._4Vseoug:h't prosecution of the accused regacding dishonou_r___of cheque for Rs.20,00,000/--. On *pr'oof of_*g,ui$..i:t',"vt_he punishment prescribed is imprisonment for may extend to one year or fine which may g extend "to tizyice the amount of the cheque, or both. The :j..learnéedstrial judge has convicted the accused to pay the Aagmount covered under the cheque in a sum of "Rs.2o,oo,ooo/W and fine of Rs.20,00,000/-, out of which ,_ 'V, gig" -.V X;

>'::"V 5"» 20 Rs.38,00,00G/-- is ordered to be paid to the complainant and Rs.2,00,GO0/---- to the State.

28. Sri S.V.Shastri, learned counsel,..if§{eul'dA.i.:'subn'f§i't--.29"

that the sentence is too harshgii The'tri'a.l considered the bona fide dispute beityveen the~7,g.a'rties'§'; submits though the accused borrowed the the fond hope of having lucrativ4ew-._bus'iVness:':.i_n.ﬂreal estate, it failed because of several of land. The impact on the it failed. He submits 'crunch and unable to recoupZvfriorn"the_Vu'n::i§§§pecte'd siiiiatian and are thus exposed to several. perils.-- liberal approach. Norrhai.|_lVv:, orders regarding sentence are not i,nterferedi_w¢i'th., in appeals or revisions because it is the discretioVri7of__thetrial court to decide on the quantum of V V _ punishmeint;'":However, I am satisﬁed in the present case .so_.rder"'regarding sentence needs modification.

30. In the result, the complainant succeeds in its legal ujfpursuit to recover the amount covered under the cheque in K. ix.) a sum of Rs.20,00,000/--. However, the order regarding fine directing the accused to pay equal amount is harsh and is scaled down by 50%. Accordingly, accused is sentenced to pay the amount covered under the cheque in Rs.20,00,000/- and Rs.10,00,000/- as fine} Rs.30,00,000/--. in default, the managing'.director"of_i.the accused company shall be s'entie_'nced'i'~_to" uiiaafga imprisonment for six months;li._V.I't-is further. _maVde:._jciear3that*w."

the entire amount of fine so rec.oy'ered._yLsha|'|"b--e._paj:£l over to the complainant as "coam.pensaat.ioln-pf permissible under Section 347(1), 4C,'r:.l?.C. "

The the learned counsel for the petitioner that._theA'=_accused has already deposited pi'*aced on record. He is permitted to pay o:f":..Rs.10,00,000/- within eight weeks from today. Therarnount already in deposit is ordered to be paid '*.,over to the complainant forthwith and after realization of '77i;:a,c-:}% 'balance amount of Rs.10,00,000/-, the same shall be paid over to the complainant in terms of this order. This shall be the only modification to the impugned order. .\ J:

Ex.) l'\.)

32. The petition stands disposed of in theff'c5««t§_o\{e terms.

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Karnataka High Court