Bangalore District Court
Mr. Hemanth L Shah vs Respondents on 12 April, 2022
1
Crl.Apl.No.339/2019
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH 70)
Present: Sri. Gururaj Somakkalavar, M.A, LLB.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 12 th day of April, 2022
Crl.Appeal No.339/2019
Appellant/complainant: Mr. Hemanth L Shah
S/o Late Laliji Shah,
Aged about 57 years,
R/at No.29/1, 5th Main,
1st Cross, Basaveshwaranagaa,
Bengaluru - 560 027.
(By Sri P.N.Hegde, Advocate)
vs.
Accused/ Respondents:
1. M/s Chandan Stores Shop No.4 and 5 "Shripal" Chhaya Society, Chembur, Mumbai - 400 071.
Rep. by its partner Mr. Nirmal G Chhadwa.
2. Nirmal G Chhadwa Aged about 50 years, Partner of M/s Chandan Stores, Shop No.4 and 5 "Shripal" Chhaya Society, Chembur, Mumbai - 400 071.
Rep. by its partner Mr. Nirmal G Chhadwa.
[By Sri.Vadiraja Bhat Y, Advocate] 2 Crl.Apl.No.339/2019 : J UD GM E N T :
Appellant/accused has assailed the legality and correctness of the order ordering lessor compensation of Rs.51,10,000/- through impugned judgment and order of sentence dated 10.12.2018 in C.C.No.21540/2017, on the file of 22nd Additional Chief Metropolitan Magistrate, Bengaluru City.
The parties are referred to their original ranks.
2. Essential material facts lead to this appeal succinctly is as follow:-
Respondent/complainant, who will be herein after referred as 'complainant' launched criminal prosecution against accused for the offence punishable U/Sec.138 of N.I. Act through his private complaint maintained U/Sec.200 of Code of Criminal Procedure with support of allegation that cheque issued by the accused was returned dishonoured on the ground of 'Exceeds Arrangement` as per Bank Endorsement. Accordingly the complainant got issued legal notice and calling upon the accused to pay the amount and despite of service of notice the accused failed to pay the cheque amount and thereby accused committed the alleged offence. The Trial Court after taking cognizance on the complaint of complainant and examination of available materials, including complaint and sworn statement of complainant and other materials registered a case in C.C.No.21540/2017 against accused for the offence 3 Crl.Apl.No.339/2019 punishable U/Sec.138 of N.I.Act. Accused appeared before trial court through his counsel. He was supplied with copies of papers and its supporting materials. Substance of accusation was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Complainant to bring home above guilt of accused, himself examined as PW.1 and got marked 12 documents exhibited as Ex.P.1 to P.12. Accused was examined U/Sec.313 of Code of Criminal Procedure. He denied all incriminating evidence appeared against him. Then accused examined himself as DW.1 on his behalf and marked 4 documents as Ex.D.1 to D.4. The trial court after hearing arguments of learned counsels and examination of available materials, found accused guilty for the above offence and ordered compensation to complainant.
3. Feeling aggrieved and dissatisfied with the above nature of verdict of trial court regarding ordering of lower compensation, complainant has preferred instant appeal. Complainant in his appeal memo, while reiterating above noted material events taken place prior to complaint and subsequent to complaint, specifically contended that, the ac admitted the rate of interest, the interest for 10 months has not been paid which works out to Rs. 7,50,000/-. the trial court ought to have calculated the intrest while imposing fine. As per the provision the person deemed to have committed an offence be punished with imprisonment for a term which may be extended to 2 years or with fine which 4 Crl.Apl.No.339/2019 may extend to twice of the amount of the cheque, the trial court has gravely erred in awarding the compensation of Rs. 51,10,000/-, the trial court ought to have awarded the compensation of Rs. 1,02,20,000/-, the compensation awarded was too low and on the leser side that what the complainant is entitled to. The trial court has thoroughly blown up the provisions and settled principles of law in awarding the compensation of Rs. 51,10,000/- to which amount actually the cheque was drawn. With these amongst other grounds the appellant prays to enhance the compensation to the extent of twice the cheque amount. The Appellant has produced the certified copy of the impugned judgment.
4. Heard the argument and perused the record..
5. In the light of challenge of impugned judgment by accused and above noted materials, following points fall for decision making of this court:-
1. Whether the present appeal is maintainable U.Sec 372 of Cr.PC ?
2. Whether the complainant is entitled for enhanced the compensation ?
3. Whether the impugned judgment and order of sentence passed by the learned Magistrate is call for interference ?
3. What order?5
Crl.Apl.No.339/2019 6 This court upon re-appreciation of available materials in the file with reference to prevailing law of land, give finding to the above points as follow:-
POINT NO.1 to 3; In negative
POINT NO.4 As per final order, on the
following;
: R E A SON S :
7. POINT NO.1 TO 3 : The appellant herein has filed present appeal being aggrieved by the lower compensation ordered by the trial, after convicting the accused. The appellant herein has filed the present appeal u.sec 372 of Cr.PC. The respondent/accused objected and contended that the present appeal is not maintainable u/sec 372 of Cr.PC. As the complainant does not come under the purview of "victim". Hence the present appeal is deserves to be dismissed as not maintainable. On the other hand appellant has strongly argued that the present appeal is maintainable u/sec 372 of Cr.PC. for enhancement of compensation. The provisions provide for challenging the order of the trial court for the enhancement of compensation and sentence.
8. After hearing the both the side on maintainability of the appeal for enhancement of compensation. The proviso of Section 372 of Cr.PC provides for preferring appeal against inadequate sentence and compensation by the victim. Now it has to be observed whether the complainant herein comes under the purview of "victim" . Whether the appeal filed 6 Crl.Apl.No.339/2019 under the proviso of Sec. 372 of Cr.P.C. is maintainable. In this regard it is worth to rely upon the observation of Hon`ble High Court dated 24.2.2015 in Crl P. No. 6072/2014. The Hon`ble Court has observed as under;
"3. In my considered opinion, the afore-stated point is no more res-integra, in view of the judgment of the Supreme Court reported in 2010(5) SCC 663(in the case of Damodar S.Prabhu vs. Sayed Babalal H.), wherein the Supreme Court has held;
"20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)
(a) Cr.PC; thereafter a revision to the High Court under Sections 397/401 Cr.PC and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.PC and thereafter for special leave to appeal to the Supreme Court under Article 136.In such an instance, therefore, 7 Crl.Apl.No.339/2019 there will be three levels of proceedings".
4. The learned counsel for respondent- complainant has relied on the following decisions to contend that the complainant and victim defined under Section 2(wa) of Cr.P.C. stand on the same footing and the complainant can maintain appeal under proviso to Section 372 Cr.P.C.
ILR 2013 (4) Kerala 866 - Sree Gokulam Chit and Finance Co. Vs.T.Krishnakumar and Ors. 2013(3) RLW 2099 (Raj) - Gulab Singh Vs.Ashok Kumar 2013(4) RLW 3339(Raj)-Porwal Trading Corporation vs. M/s.Global Syntex ILR 2013 Kar 4234 - Sri Prakash Gandhi vs. Sri.T.G.Veeraprasad and others Acquittal Appeal (DB) No.04/2013 passed on 15-04-2013 in Mahesh Kumar Sinha vs. The State of Jharkhand 2014(2) ALD (Cri) 900- Petta Satya Govinda vs. Yarlagadda Vijaya Kumar
5. In my considered opinion, a person presenting the complaint under Section 142 of N.I.Act., cannot be termed as a 'victim' defined under Section 2(wa) Cr.P.C. The proviso to Section 142 of N.I.Act reads thus:-
142. Cognizance of offences -
Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974) -
0Crl.Apl.No.339/2019
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c)of the proviso to section 138:[Provided that the cognizance of a complaint may betaken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period].
6. Therefore, the word "complainant" under Proviso to Section 142 of N.I.Act and "the victim"
under Section 2(wa) of Cr.P.C. are not one and the same. In view of this, I am of the considered opinion that appeal filed under Proviso to Section 372 of Cr.P.C., is not maintainable.
As per the observation of Hon`ble High Court the person presenting the complaint u/sec. 142 of NI Act cannot be termed as a victim defined under Sec. 2 (wa) of Cr.P.C. The Hon`ble High Court has held that the word `complainant` under proviso to Sec. 142 of NI Act and victim under the Cr.P.C. are not one and the same and it is categorically observed by the court that the appeal filed under proviso to 1 Crl.Apl.No.339/2019 Sec. 372 of Cr.P.C. is not maintainable. As per the observation of the Hon`ble High Court the present appeal u/sec 372 of Cr.P.C. is not maintainable.
9. Now it has to be analyzed what is the remedy available for the complainant. In this regard it is worth to rely upon the observation of the Hon`ble High Court of Karnataka in Nagaraja vs. Gowramma 2004 Crl.LJ 2947;
7. 1 have carefully reviewed both the orders under challenge passed by the Courts below. At first I will take up for consideration the question whether the respondent-complainant is entitled to file a revision or appeal for enhancement of sentence. Under the old Code of Criminal Procedure, 1898, there was no provision either for the State or private complainant to prefer an appeal for enhancement of sentence. But, the High Court while exercising its revisional powers was vested with the discretion to enhance the sentence passed by the subordinate Court that too after affording an opportunity to the accused of being heard. Therefore, Section 377 of the Cr. P.C., 1973, empowers the State the right of appeal against inadequacy of sentence. But, the right to file an appeal against inadequacy of sentence has not been provided or given to a private complainant.
9. Under Section 138 of the N.I. Act the order of sentence was passed by the Trial Court awarding lesser sentence even though the amount covered under the cheque was Rs. 60,000/- but the Trial Court while sentencing this petitioner-accused awarded only a fine of Rs. 10,000/-. Therefore, the respondent has rightly filed a revision petition under Section 397 of the Cr. P.C. before the learned Sessions Judge. If the complainant proves the charges levelled against the revision petitioner-accused for the offence punishable under Section 138 of the N.I. Act the Magistrate may impose the sentence or the fine double the cheque amount. Therefore, it can be said that the Magistrate misread the 2 Crl.Apl.No.339/2019 provisions of Section 138 of the N.I. Act while imposing the fine of Rs. 10,000/-. Therefore, under Section 397 of the Cr. P.C. the respondent has rightly filed a revision petition and the learned Sessions Judge has after appreciation of the materials placed on record enhanced the sentence of fine amount from Rs. 10,000/- to Rs. 65,000/-.
If the observation of the Hon`ble High Court is carefully perused, the ratio laid down by the Hon`ble High Court of Karnataka, if culled out it can be gathered that if there is any inadequate sentence the revision petition u/sec. 397 of Cr.P.C. is maintainable. The appellant who is the complainant before the trial court if he aggrieved by the inadequate sentence and compensation he has to prefer revision petition u/sec. 397 of Cr.P.C.
10. On appreciation of both the ratios laid down in above said authorities, it is very much clear that the present appeal under proviso to Sec. 372 of Cr.PC is not maintainable. The appellant ought to have prefer the revision petition u/sec. 397 of Cr.P.C. Under such circumstances in view of the ratio laid down by the Hon`ble High Court of Karnataka the present appeal deserves to be dismissed as not maintainable. Accordingly the appeal filed by the appellant is dismissed as not maintainable. Accordingly, these point no.1 to 3 are answered in the negative.
11. POINT NO.4; In the light of my finding on point No.1 and 2 this court proceeds to pass the following;
3Crl.Apl.No.339/2019 : OR D E R :
Appeal filed by the Appellant is hereby dismissed as not maintainable.
Send copy of this judgment alongwith TCR to the trial court for needful.
(Dictated to the JW on computer, script thereof is corrected, signed and pronounced by me in open court on this the 12th day of April, 2022) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.