Karnataka High Court
Devendrappa H. Bandhar vs Smt. Kanakamma Y Navalgund on 13 August, 2020
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 13th day of August 2020
Before
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
Criminal Revision Petition No.100204 of 2017
Between
Devendrappa H.Bandhar,
Age: 61 years,
Occ: Retd. Bank Employee,
R/o. Near Murudeshwar Factory,
Hubballi, Dist: Dharwad. ...Petitioner
(By Sri. Sadashiv S.Patil, Advocate)
And
Smt. Kanakamma Y.Navalgund,
Age: 62 years,
Occ: Household Work,
Tq: Sanman Colony, Gokul Road,
Hubballi, Dist: Dharwad. ...Respondent
(By Sri. Mallikarjunswamy B.Hiremath, Advocate)
This Criminal Revision Petition is filed under
Section 397 read with Section 401 of the Code of
Criminal Procedure, praying to set aside the order dated
16.08.2016 in Criminal Appeal No.51 of 2014 passed by
the Court of V Addl. District and Sessions Judge,
Dharwad, sitting at Hubballi, confirming the judgment
and order dated 15.07.2014 passed by the Court of III
Addl. Civil Judge and JMFC Court Hubballi in C.C.
No.2076 of 2008 and allow the above criminal revision
petition.
2
This Criminal Revision Petition coming on for
Admission, this day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent, and perused the impugned judgments in C.C. No.2076 of 2008 on the file III Additional Civil Judge and JMFC Court, Hubballi, and in Criminal Appeal No.51 of 2014, which is a common judgment, on the file of the V Additional District and Sessions Judge, Dharwad, sitting at Hubballi.
2. The learned counsel for the parties submit in unison that the respondent-complainant initiated proceedings against the petitioner for offence punishable under the provisions of Section 138 of the Negotiable Instruments Act (for short, 'the Act') upon the cheque dated 21.05.2008, for a sum of Rs.1,25,000/-, drawn by the petitioner being returned for "insufficiency of funds"
and after issuing requisite notice. The petitioner- accused, during the pendency of proceedings before the 3 learned Magistrate, on 26.03.2012, transferred the entire cheque amount of Rs.1,25,000/- to the respondent- complainant's account. A memo was also filed in this regard on 31.10.2012. The learned Magistrate considering this circumstance has convicted the petitioner-accused for the offence punishable under Section 138 of the Act and sentenced the petitioner- accused to pay compensation to the respondent in a sum of Rs.20,000/-.
3. In the light of the undisputed fact that the cheque in question was returned for "insufficiency of funds"; notice as contemplated under Section 138 of the Act was issued; and as the cheque amount was not paid within fifteen days from the date of receipt of the legal notice, the offence under Section 138 would indeed be constituted. Further, it is undisputed that the complaint under Section 200 of Cr.P.C is presented within the prescribed time. Therefore, the petitioner's conviction cannot be set aside on the ground that the 4 cheque amount is paid during the pendency of the proceedings before the Trial Court. However, deposit of the amount during the pendency of the proceedings before the Trial Court much prior to the disposal of the complaint would demonstrate bona fides of the petitioner-accused. This circumstance would have to be considered in sentencing, and if considered, the order to pay compensation of Rs.20,000/- would not be justified. As such, the following:
ORDER The petition is allowed in part, and the impugned judgment dated 15.07.2014 passed by the Court of III Addl. Civil Judge and JMFC Court Hubballi in C.C. No.2076 of 2008 and the order dated 16.08.2016 in Criminal Appeal No.51 of 2014 passed by the Court of V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, confirming such judgment is modified confining the sentence to the Cheque amount of Rs.1,25,000/- deposited by the petitioner during the 5 trial and setting aside the sentence insofar as the direction that the petitioner-accused shall pay a sum of Rs.20,000/- as compensation to the respondent.
Sd/-
JUDGE Kms