Karnataka High Court
M/S I.T.M.S & Company vs Sri A.S.Vishnu Bharath on 25 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.244/2011
BETWEEN:
1. M/S.I.T.M.S. & COMPANY
A PARTNERSHIP FIRM
NO.28, EAST CIRCLE ROAD
V.V.PURAM
BENGALURU-560 004.
2. SRI I.B.MANJUNATH
S/O I.BHAKTHAVATSALAM
AGED ABOUT 45 YEARS
NO.28, EAST CIRCLE ROAD
V.V.PURAM
BENGALURU-560 004.
... PETITIONERS
(BY SRI M.J.ALVA, ADVOCATE)
AND:
SRI A.S.VISHNU BHARATH
S/O A. SATYANARAYAN
AGED ABOUT 58 YEARS
NO.7/8, 2ND FLOOR
SHOUKATH BUILDING
S.J.P.ROAD
BENGALURU-560 002.
... RESPONDENT
(BY SRI K.R.ASHOK KUMAR, ADVOCATE)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) AND 401(1) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 08.07.2010 PASSED BY THE XXI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALSDORE IN C.C.NO.18360/2003 PRODUCED AT
ANNEXURE-B AND ETC.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 14.03.2022, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
Though this matter is heard along with Crl.A.Nos.909/2010 and 910/2010, considered independently since, the evidence has been led before the Trial Court independently hence, it requires independent consideration.
2. This petition is filed challenging the judgment of conviction and sentence passed in C.C.No.18360/2003 for the offence punishable under Section 138 of N.I. Act and the same was confirmed in Crl.A.No.575/2010 hence, the present revision petition is filed questioning the orders of both the Courts.
3. The factual matrix of the case of the respondent herein is that the first petitioner herein is a partnership firm represented by its partners No.2 to 5 and they are its active 3 partners engaged in the day-to-day affairs of the business of the firm since it is a family business. It is the case of the respondent herein that accused Nos.2 to 5 have approached the respondent for financial assistance for payment of money to procure Asphalt from M/s PEC Limited and also for payment to the Commissioner for Central Excise and Customs, Chennai and to lift the Asphalt stored in the godown at Chennai. Accordingly, the accused have jointly borrowed an amount of Rs.65,12,000/- from the complainant from time to time and in confirmation of the amount so borrowed from the complainant with interest accrued thereon, accused Nos.2 and 3 for and on behalf of accused No.1 have jointly executed an On Demand Promissory Note and consideration receipt dated 01.07.2002 for a sum of Rs.65,12,000/- in favour of the complainant with an endorsement "Amount taken from time to time with interest"
agreeing to repay the same with interest at 2% p.a.
4. It is also the case of the respondent is that towards discharge of the said outstanding amount, accused No.2 as partner of accused No.1, the subject matter of cheques for an 4 amount of Rs.30,00,000/- and Rs.35,12,000/- was issued in favour of the respondent and when the said chequres were presented, the same were dishonoured for the reason of "account closed". The same was intimated and also issued legal notice and the same was returned with an endorsement "information delivered on 08.08.2003, not claimed". The notice was also issued through certificate of posting and the same was received by the accused. Inspite of service of notice, the petitioners herein were failed to comply with the demand and hence, the complaint was filed invoking the offence punishable under Section 138 of N.I.Act. The Trial Court took the cognizance only against accused Nos.1 and 2 and secured the accused persons and thereafter, the complainant/respondent in order to prove the case, examined himself as PW1 and got marked the documents at Ex.P1 to P34. The Trial Court after recording 313 statement, allowed the petitioners to lead the defence evidence. Hence, the petitioners herein were examined two witness as DW1 and DW2 and got marked the documents at Ex.D1 to D38. The Trial Court after considering the material available on record came to the conclusion that petitioner No.2 5 herein had issued Exs.P4 and P5 i.e., subject matter of the cheques towards legally recoverable debt and the very defence of the petitioners herein is that the respondent had misused the cheques which are handed over to him as a security to avail the loan from the bank was answered as 'negative' coming to the conclusion that the defence was not proved and the Trial Court convicted and sentenced to pay a fine of Rs.97,68,000/-, in default of payment of fine, the accused was sentenced to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence, an appeal was filed in Crl.A.No.575/2010 and the Appellate Court also on re-appreciation of both oral and documentary evidence, confirmed the order of the Trial Court and dismissed the appeal. Being aggrieved by the said orders of both the Courts, the present revision petition is filed.
5. The main contention of the learned counsel appearing for the petitioners before this Court is that there is no prima facie evidence of existence of debt and liability to be discharged by the petitioners and the respondent had failed to 6 establish the same. There is absolutely no proof of advancement of the so called loan amount of Rs.65,12,000/- to the respondent. The so called amount is also not reflected in the income tax returns of the respondent. There are no books of account produced by the respondent evidencing the advancement of the loan amount. Hence, the view taken by both the Courts is totally erroneous, which calls for interference by this Court exercising the revisional powers.
6. The learned counsel for the petitioners further submits that the respondent went on changing his version from stage by stage. At the first instance while issuing the notice of demand as well as while filing the complaint, the respondent had projected his complaint with the plea that he had made the payments to PEC Limited on behalf of the petitioners and thereafter, in his evidence he contends that the case is turned and projected as if the loan amount is advanced from time to time. But absolutely no material evidences are placed by him to substantiate the same. Inspite of these glaring infirmities the Trial Court had convicted the petitioners which was also 7 confirmed by the lower Appellate Court. The lower Appellate Court has unnecessarily confused itself about the mentioning of the amounts in the cheques at Ex.P4 and P5 which is mentioned in the notice at Ex.D21. In the process, the lower Appellate Court had failed to consider that the respondent is its Chartered Accountant till the date of filing of the complaint itself and therefore, the filling up the cheques by the respondent with the amount was known to it and the notice was issued at Ex.D21 to prevent the misuse of the same. This aspect has been unnecessarily confused by the lower Appellate Court.
7. The learned counsel for the petitioners also vehemently contend that Ex.D8 was not properly considered by both the Courts and some importance was given to mentioning of the amount in both the cheques. The counsel also would contend that the respondent claimed that the amount was paid by way of cheque and cash and no document is placed before the Court to show that for having paid the amount by way of cash and cheque. The counsel also would submit that DW1 who has been examined on behalf of the petitioners herein 8 categorically says that he has not received any payment from the respondent. When such being the material available on record, the question of presumption does not arise. However, the Apex Court comes to a conclusion that there is a presumption in favour of the respondent and the same has not been rebutted. The counsel also vehemently contend that DW1 categorically admit that for having made the payment, the same has not been shown in the income tax returns and PW1 who is a Chartered Accountant, the Trial Court came to a conclusion that defendants herein have not been proved their case and the very approach of the Trial Court is erroneous. In the cross- examination, PW1 has categorically stated that he cannot state how much amount was paid in cash and through Cheques. The document at Ex.D8-MOU clearly depicts an understanding between the parties and hence, the counsel vehemently contend that it is a fit case to exercise the revisional powers. The learned counsel for the petitioners in support of his argument, relied upon the decision reported in (2018) 8 SCC 469 and brought to notice of this Court paragraphs 2, 22, 23.
9
8. Per contra, the learned counsel appearing for the respondent would submit that it is not in dispute that Ex.P2 and 3 are executed by the petitioners and witness-DW2 examined before the Trial Court who is the father of petitioner No.2 herein stated that the scribe at Exs.P2 and P3 has not been examined and also the counsel would submits that the wife of petitioner No.2 who is also a witness to the documents at Ex.P2 and P3 and also an executant and the same is admitted. The counsel would submit that Exs.P4 and P5 which are the subject matter of the cheques are filled up by the petitioners only. The legal notice issued against the petitioners herein was served, issued through certificate of posting and sent through registered post was returned with an endorsement "intimation was delivered and not claimed" and hence, the Trial Court rightly came to the conclusion that the notice was served. The counsel also would submit that the legal notice sent to the correct address and the said address is also admitted by DW2. The counsel for the respondent would submit that DD was purchased to pay to PEC Limited. The counsel would submit that Ex.P21 is clear that a second charge was created in favour of the complainant since 10 the first charge was already made in favour of the bank. The said document at Ex.P21 is not disputed and there was an acknowledgment by the petitioners herein admitting the liability. DW2 also admitted the same in the cross-examination. Ex.P26 to P28 are account extracts are also marked before the Trial Court. There was an agreement between the parties wherein also admit the liability. The counsel also submits that Ex.D3(a) and (b) available at page No.2 is clear that there was a current liability to the extent of Rs.1,42,00,000/- and details of current liability has not been furnished inspite of thorough cross- examination. The counsel also would submit that Ex.D8 which has been relied upon by the petitioners in page No.3 there is a clear mention with regard to the outstanding of the money in favour of the petitioners. DW2 in the cross-examination admit Ex.D8 and its averments. The counsel would submit that both the Courts have considered the material available on record and rightly convicted the petitioners and confirmed the judgment of the Trial Court. Hence, the counsel would vehemently contend that, there are no grounds to exercise the revisional jurisdiction. 11
9. The learned counsel for the respondent in support of his argument relied upon the judgment of the Apex Court in the case of BIR SINGH vs MUKESH KUMAR reported in (2019) 4 SCC 197 wherein the Apex Court held that raises presumption of law that the cheque duly drawn was in discharge of debt or liability, however, presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. The counsel also would submit that Apex Court held that under N.I. Act, there is a presumption that cheque, duly signed and voluntarily made over to payee, was in discharge of debt or liability arises irrespective of whether cheque was post dated or blank cheque for filling by payer or any other person, in absence of evidence of undue influence of coercion. Hence, the counsel would contend that the defence which have been taken by the petitioners herein in view of the judgment of the Apex Court referred supra cannot be accepted. The counsel also relied upon the judgment reported in AIR 2020 SC 945 in the case of APS FOREX SERVICES PVT. LTD. Vs SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS wherein the Apex Court held that dishonour of cheque, there is presumption of legally 12 enforceable debt or liability, presumption as to accused admitting issuance of cheque, his signature on cheque and once the signature and issuance of cheque is admitted, there is always a presumption in favour of the complainant that there exist legally enforceable debt or liability, no evidence is led by accused to rebut the presumption and plea by accused that the cheque was given by way of security and same has been misused by the complainant, not tenable. The counsel also would submit that though the petitioners have led the evidence as of executant to all these documents has not been examined and apart from the witness is examined is the father of the executant of the cheques at Ex.P4 and P5 and there is no proper explanation by the petitioners that why the executant has not been examined and medical reasons are given to that effect and the same is not supported by any documentary evidence and hence, the Court cannot exercise its revisional jurisdiction. The counsel also vehemently contend that even in the absence of any revision petition by the respondent, this Court can enhance the amount and this transaction is almost about two decades 13 and when such being the case, the Court can exercise its discretion for enhancing the amount.
10. In reply to the argument of the counsel for the respondent, the counsel for the petitioners would submit that no revision is filed against the fine imposed by the Trial Court and hence, he cannot seek for enhancement. Ex.D3 prepared by him and hence, the respondent has to explain the same and also counsel would contend that it is a time barred claim, hence, the same is not legally recoverable. Ex.P28 is also clear that the payment is made through cheque. When such being the factual aspects, it requires interference by this Court by exercising the revisional jurisdiction.
11. Having heard the respective counsel appearing for the parties and also on perusal of the oral and documentary evidence, the points that would arise for consideration are:
(1) Whether both the Trial Court as well as Appellate Court have committed an error in considering the material available on record and cogent evidence and thereby committed an error in convicting and 14 confirming the conviction and sentence passed by the Trial Court and whether it requires exercising of the revisional jurisdiction of this Court or not? (2) What order?
Point No.1:
12. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it is clear that it is not in dispute that Exs.P2 and P3 contains the signature of petitioner No.2 herein along with his wife. It is also not in dispute that Ex.P4 and P5 - cheques were given by petitioner No.2. The main contention of the petitioners before the Trial Court is that the respondent/complainant had misused the cheques handed over to him as a security to avail a loan from the bank. The main contention of the petitioners' counsel is that though those cheques were given to get the loan in favour of respondent, the very contention of the respondent is that petitioner No.2 had issued cheques which are marked as Ex.P4 and P5 towards legally recoverable debt. Before the Trial Court, the complainant also apart from his oral and documentary 15 evidence relied upon the documents at Ex.P1 to P34. On the other hand, the petitioners have relied upon the evidence of DW1 who is a retired employee of PEC Limited. Petitioner No.2 herein relied upon the evidence of his father who was examined as DW2. The petitioners relied upon Ex.D1 to D38 and this Court has to look into both the oral and documentary evidence available on record. The first contention of the counsel for the petitioners before this Court also that no documents are placed before the Court for having made the payment in favour of PEC Limited and payment is also towards bitumen and there is no documentary evidence for having made the payment and hence, the payments made in favour of PEC Limited is not proved.
13. The complainant mainly relied upon the documents at Ex.P2 to P5. Admittedly, Ex.P2 and P3 are the On Demand Promissory Note and Consideration Receipt dated 01.07.2002 for a sum of Rs.65,12,000/- and wherein an endorsement is also made that "amount taken from time to time with interest" and agreed to repay the same with interest at 2% p.a. These two documents contains the signature of petitioner No.2 as well as 16 his wife. It is also important to note that the cheques which have been marked at Ex.P4 and P5 also contains the signature of petitioner No.2 and DW2 who is the father of petitioner No.2 admit the signature of his son as well as his daughter-in-law on the promissory note and consideration receipt. However, petitioners have denied the very borrowing of the loan from the respondent and execution of Ex.P2 and P3 but DW2 admitted the signature of his son as well as his daughter-in-law. The very defence of DW2 that petitioners were in need of money for the improvement of the business and this respondent is having contact with several banks as he is the Chartered Accountant and hence, the petitioners have taken the assistance of the respondent to avail the loan from the bank, hence, as a security for the said loan, they have issued the blank promissory note, consideration receipt and cheques. It is important to note that the consideration receipt and promissory note are executed in favour of the respondent and not in favour of any of the bank as contended by DW2. It is also important to note that the cheques were issued in favour of the respondent. The document at Ex.P21 is also very clear that petitioner No.2 and other family 17 members have also executed confirmation of second charge on properties pledged to Vysya Bank i.e., in respect of Rs.45,67,800/- in favour of the respondent and no explanation with regard to this document. It is contended that this document is obtained by the respondent and what made petitioner No.2 and his family members to execute this document and the same is dated 31.08.2000 and it is prior to the execution of the cheques in question and hence, it is clear that there was a financial transaction between the petitioners and the respondent and no explanation offered with regard to Ex.P21 and contended that the same is created and the same is not substantiated by leading any cogent evidence. Ex.P22 is also the statement of account. It is also important to note that apart from Ex.D3 which has been relied upon by the petitioners themselves shows the due to the tune of Rs.1,43,29,483/- and the same is a current liability. Thorough cross-examination was made showing the said current liability as per the balance sheet as on 31.03.2001 and the very contention of the petitioners also that the said amount shown as current liability is in respect of the respondent only. Though effective cross-examination was 18 made with regard to the document at Ex.D3, no documents are furnished to explain to whom they are liable to pay the amount and the details of liability is furnished in respect of effective cross-examination was made.
14. Learned counsel for the petitioners also mainly relied upon the document of Ex.D8 i.e., Memorandum of Understanding and relying upon this document would contend that the very document disclose that there was no liability in favour of the respondent-complainant.
15. Learned counsel for the respondent would submit that, on perusal of the document Ex.D8, it is clear that the petitioners owe liability in favour of the respondent-complainant.
16. Having heard the said submission, this Court has to look into the document of Ex.D8. On perusal of the document at Ex.D8, it is a Tripartite agreement between the parties and this revision petitioner is a party of first part and the complainant is the party of third part in terms of the document. In the document, it is mentioned that first part has to pay the sum of 19 Rs.53,50,000/- to the party of third part which was taken to deposit the money for getting consignment of Asphalt with M/s. PEC Limited in May, 2000. Apart from that, there is a recital in page-3 of the document that the party of third part has earlier advanced Rs.53,50,000/- to the party of first part as per the agreement and also agreed for further advance of Rs.25,00,000/- to second party in order to discharge the commitments and get the Asphalt released from the custom authorities. Hence, it is clear that there was an understanding between the parties and having acknowledged with regard to the payment on the party of first part as well as in favour of party of third part.
17. In Clause-6 of the Memorandum of Understanding, it is mentioned that the party of first part by signing this agreement is giving guarantee for the entire amount invested by the third party and in case if the second party has failed to repay the loan amount, the party of first part shall repay the loan amount with interest and for this purpose, the second charge on all assets pledged to Vysya Bank by the first party is given as 20 guarantee and this will be intimated to the bank in appropriate time. Hence, it is clear that, in view of said understanding between the parties, the document Ex.P21 came into existence. Therefore, the very contention that Memorandum of Understanding which is marked as Ex.D8 comes to the aid of the petitioners cannot be accepted.
18. Now coming to the legal proposition is concerned, the learned counsel appearing for the petitioners relied upon the judgment of the Apex Court in the case of P. VENUGOPAL VS. MADAN P. SARATHI reported in 2009 (1) Kar.L.J. 569 (SC). In this judgment, the Apex Court held that initial burden was on the complainant and the said presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant.
19. The counsel also relied upon the judgment in the case of SANJAY MISHRA VS. MS. KANISHKA KAPOOR @ NIKKI AND ANOTHER reported in 2009 CRI. L. J. 3777, wherein also with regard to that presumption as to legally 21 enforceable debt held that amount advanced by complainant to accused was large amount not repayable within few months and failure by complainant to disclose the amount in his Income-Tax Return or Books of Accounts, the same is sufficient to rebut presumption under Section 139 of the Act.
20. The counsel also relied upon the judgment in the case of VIJAY VS. LAXMAN AND ANOTHER reported in 2014 (3) SCJ 134, wherein also it is held that the accused had discharged his burden to disprove the appellant-complainant's version and was able to displace presumption against him.
21. The counsel also relied upon the judgment in the case of JOHN K. ABRAHAM VS. SIMON C. ABRAHAM AND ANOTHER reported in 2014 (3) SCJ 739, wherein also it is observed that, in order to draw the presumption, burden lies heavily upon complainant and should show he had required funds for advancing it to accused, issuance of cheque in support of such payment was true and that the accused was bound to make payment, as was agreed upon while issuing the cheque in 22 question. But, complainant failed to establish all those requirements.
22. The counsel also relied upon the judgment in the case of RANGAPPA VS. SRI MOHAN reported in (2010) 11 SCC 441, wherein it is observed that presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. However, such presumption is rebuttable in nature.
23. The counsel also relied upon the judgment in the case of ANSS RAJASHEKAR VS. AUGUSTUS JEBA ANANTH reported in 2019 (10) SCJ 440, wherein also the Apex Court held that defence that there was an absence of a legally enforceable debt was rendered probable on the basis of material on record.
24. The counsel also relied upon the judgment in the case of SHREE DANESHWARI TRADERS VS. SANJAY JAIN reported in LAWS (SC) 2019 882 and brought to the notice of this Court paragraph Nos.16, 17, 19 and 20 that presumption 23 will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted, the said presumption is rebuttable and held that documentary evidence adduced by the complainant should be sufficient to prove that it was a legally enforceable debt.
25. On the other hand, learned counsel for the respondent would submit that the judgment in the case of SYNDICATE BANK VS. R. VEERANNA AND OTHERS reported in AIR 2003 SC 2122 is clear that under Section 18, acknowledgement of debt and limitation, unqualified acknowledgement of liability by a party not only saves the period of limitation but also gives a cause of action to plaintiff to base its claim.
26. The counsel for the petitioners also relied upon the judgment in the case of R. VIJAYAN VS. BABY AND ANOTHER reported in AIR 2012 SC 528 and contend that the criminal Courts to ensure that successful complainants get cheque 24 amount also, it is their duty to have uniformity and consistency, with other Courts dealing with similar cases.
27. The counsel also relied upon the judgment in the case of MAINUDDIN ABDUL SATTAR SHAIKH VS. VIJAY D. SALVI reported in AIR 2015 SC 2579, wherein the Apex Court has held that respondent is liable for the offence under Section 138 of N.I. Act, jail sentence and fine twice cheque amount awarded.
28. The counsel also relied upon the judgment in the case of BIR SINGH VS. MUKESH KUMAR reported in (2019) 4 SCC 197, wherein the Apex Court held that presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. It is also held in this judgment, while interfering with the concurrent findings of fact of Trial Court and First Appellate Court by High Court in exercise of revisional jurisdiction not warranted, unless findings are vitiated by perversity, error of law or jurisdictional error. 25
29. Referring these judgments stated (supra), learned counsel for the petitioners would contend that no case is made out by the respondent .
30. Having heard the respective counsel and also the principles laid down in the judgments (supra), it is settled law that, once the petitioners-accused admit issuance of documents, it amounts to drawing the presumption in favour of the holder of the cheque and the accused has to rebut the same by placing cogent material before the Trial Court. It is also important to note that, at the same time, the complainant also has to prove his case by placing material on record.
31. No doubt, the principles are laid down in the judgments referred by the learned counsel for the petitioners, the Court has to keep in mind the fact that, while sentencing the accused, both punishment as well as double the amount has to be awarded as per the statute.
32. In the case on hand, it has to be noted that, I have already discussed with regard to the material on record in the beginning i.e., both oral and documentary evidence placed on 26 record, particularly relying upon the documents Exs.P2 to P5, Exs.D3, D8 and also the document Ex.P21. The documentary evidence available on record are in favour of the respondent and not in favour of the petitioners and the respondent had proved his case by placing relevant documents, particularly the documents Exs.P2 to P5 as well as Ex.P21 and also Exs.D3 and D8, which have been placed by the respondent.
33. Hence, I do not find substance in the contention of the learned counsel for the petitioners that the judgments which have been relied upon by them comes to the aid of the petitioner. However, the Court has to look into the precedent as well as the facts of each case and both the Courts have not committed any error in considering the material on record i.e., both oral and documentary evidence and given a definite finding in their judgments, particularly relying upon the documents which I have referred (supra). Therefore, I do not find any perversity in the findings to exercise the revisional jurisdiction and when there is no perversity and no error in applying the law and presumptions to be drawn in favour of the respondent, I do 27 not find any grounds to entertain the revision petition to come to an other conclusion that revisional jurisdiction can be exercised in the case on hand.
34. Now, coming to the aspect of the contention of the learned counsel for the respondent that the fine imposed by the Trial Court not commensurate with the gravity of the offence and the allegations found in the complaint and material on record, it has to be noted that the Trial Court, while sentencing the petitioner herein, ordered to pay a fine of Rs.97,68,000/-. In default of payment of fine, the accused is sentenced to undergo simple imprisonment for six months.
35. It is important to note that the claim made by the respondent-complainant before the Trial Court is in respect of amount of Rs.65,12,000/-, based on the documents Exs.P2 to P5 and other documents.
36. Learned counsel appearing for the respondent- complainant also relied upon several judgments, wherein in the judgment in the case of GOVIND RAMJI JADHAV VS. STATE OF MAHARASHTRA reported in (1990) 4 SCC 718, the Apex 28 Court observed that to achieve the object, the code of Criminal Procedure empowers the High Court to enhance the sentence in appropriate cases where the sentence awarded by the subordinate Courts is grossly inadequate or unconscionably lenient.
37. The counsel also relied upon the judgment in the case of NADIR KHAN VS. THE STATE (DELHI ADMINISTRATION) reported in (1975) 2 SCC 406, wherein also the Apex Court held that the High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law.
38. The counsel also relied upon the judgment in the case of SURJIT SINGH AND OTHERS VS. STATE OF PUNJAB reported in 1984 (Supp) SCC 518, wherein also the Apex Court has observed that appeal to High Court against conviction under Section 302, IPC and sentence of life imprisonment, held that High Court not justified in enhancing the sentence. 29
39. The counsel also relied upon the judgment in the case of METERS AND INSTRUMENTS PRIVATE LIMITED AND ANOTHER VS. KANCHAN MEHTA reported in (2018) 1 SCC 560, wherein it is observed that the object of introducing Section 138 and other provisions was to enhance the acceptability of cheques in the settlement of liabilities.
40. The counsel also relied upon the judgment in the case of GOA PLAST (P) LTD. VS. CHICO URSULA D'SOUZA reported in 2004 SCC (CRI) 499, wherein it is observed that nature of offence under Section 138 primarily related to a civil wrong and the 2002 Amendment specifically made it compoundable.
41. The counsel also relied upon the judgment in the case of RANGAPPA VS. SRI MOHAN reported in (2011) 1 SCC (CRI) 184, wherein the Apex Court observed that the object of provision was described as both punitive as well as compensatory. The intention of the provision was to ensure that the complainant received the amount of cheque by way of 30 compensation and compensation can be awarded under Section 357(3) of Cr.P.C. to the person, who suffered loss. Sentence in default can also be imposed. The object of the provision is not merely penal but to make the accused honour the negotiable instruments.
42. The counsel also relied upon the judgment in the case of AMIT KAPOOR VS. RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460 regarding scope of revision is concerned, wherein the Apex Court held that the object of this provision is to set right a parent defect or an error of jurisdiction or law and the same has to be exercised where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
43. Hence, referring these judgments, the learned counsel for the respondent-complainant would contend that this Court can order for double the cheque amount and also award substantive sentence against the petitioners herein. 31
44. Having heard the learned counsel appearing for the respondent and also the principles laid down in the judgments referred (supra) regarding enhancement of sentence is concerned, in the case on hand, the subject matter cheques are for Rs.65,12,000/- and while sentencing also, the Trial Court imposed a fine of Rs.97,68,000/- and the difference amount of cheque and the fine amount is substantive. No doubt, the Trial Court not awarded double the cheque amount and considering the subject matter cheques in question and the fine imposed and also looking into the transaction between the parties, reasonable fine has been imposed by the Trial Court. Hence, the very contention of the learned counsel for the respondent- complainant that this Court can enhance the fine amount cannot be accepted.
45. It is settled law in the judgments referred (supra) that if the Trial Court, while imposing the sentence and fine and also ordering for substantive sentence, not considered the material on record, the Court can exercise the revisional jurisdiction, in order to set right the anomaly or error committed 32 on record. In view of the reasons assigned, I do not find any error committed by the Trial Court while sentencing the petitioners herein and the Trial Court has taken note of the subject matter cheques which have been marked as Exs.P4 and P5 and imposed fine of Rs.97,68,000/- which is an substantive amount taking note of the amounts in Exs.P4 and P5-cheques. Hence, it does not require any enhancement, as contended by the learned counsel for the respondent.
Point No.2:
46. In view of the discussions made above, I pass the following:
ORDER The Criminal Revision Petition is dismissed.
Sd/-
JUDGE SN/ST