Bangalore District Court
Sri Nikhil Infant vs Unknown on 14 March, 2023
KABC010247122021
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
DATED THIS THE 14 th DAY OF MARCH, 2023
:PRESENT:
Sri. Narashimsa.M.V., B.Com., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL APPEAL NO.889/2021
APPELLANT :- Sri Nikhil Infant
Aged about 34 years
S/o A.R. Infant,
R/at No.59, 5th 'A' Cross,
21st Main, MCHS Colony,
B T M Second Stage,
Bangalore - 560 076.
(Rep by Sri. M.K.V.- Adv)
V/s
RESPONDENT :-
Sri Gurukumar G Choukimath,
Aged about 58 years
S/o Gurulingaiah,
Navami Shankar, 5th Cross,
Third Main, Opposite B.S.N.L.,
Grihalaxmi Layout,
Kamala Nagar, Basaveshwarnagar,
Bangalore-560 079.
(Rep by K.A.P.- Adv)
2
Crl.A.No.889/2021
JUDGMENT
Complainant in CC 6130/2017 on the file of XIII ACMM, Bengaluru has filed this appeal under Sec. 372 of Cr.P.C. Respondent in this appeal is accused before Trial Court.
2. Brief facts of the case are as under :
The accused knows the complainant since from several years. On 31-10-2012, the accused had entered into a Memorandum of Understanding with the complainant and two others for sale of lands measuring 69 acres 12 guntas situated at Chokkasandra Village, Nandagudi Hubli, Hosakote Taluk, Bengaluru Rural District and received portion of sale consideration. There afterwards, on 19-02-2015 the accused again approached the complainant and two others to cancel the said Memorandum of Understanding and agreed to repay the amount with damages and compensation to the complainant and two others. The complainant had demanded for payment of the outstanding dues from accused, for that accused had issued a cheque bearing No.468123 dated 14-04-2016 for a sum of Rs.15,00,000/- in favour of complainant drawn on Vijaya Bank, 3 Crl.A.No.889/2021 West of Chord Road Branch, Bengaluru towards the part repayment of his dues to the complainant. As per instructions of accused the complainant presented said cheque through State Bank of Mysore, BTM Layout Branch, Bengaluru on 15-04-2016. But the said cheque was returned dishonoured with endorsement "Funds Insufficient" on 17-04-2016. There afterwards, complainant had got issued Demand notice to accused through his counsel on 27-04-2016 same is sent by RPAD, it is duly served to accused, cheque amount was not paid by accused, nor has any reply notice has been issued by accused. Thus accused has committed an offence punishable under Section.138 of Negotiable Instruments Act, seeking for punishment of accused and award the compensation to complainant, private complaint was presented before the learned magistrate.
3. Learned Magistrate took cognizance of the offence punishable under Section 138 of N.I.Act. After recording sworn statement of complainant with documentary evidence, learned magistrate has registered C.C.No. 22567/2016 against the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Summons issued to accused is duly 4 Crl.A.No.889/2021 served to accused, he appeared through his counsel and was enlarged on bail. There afterwards, plea of accusation has been read over and explained to accused in the language known by him and he pleaded not guilty and claimed to be tried.
4. In support of the case of complainant, the complainant has filed an affidavit in lieu of chief-examination, he is examined as PW.1 and got marked Ex.P1 to P10 and at the time of cross- examination of DW.1 got marked Ex.P.11 and this PW.1 has been fully cross-examined by the accused counsel and thus the complainant closed his side evidence.
5. There afterwards, the accused is examined under Section.313 of Cr.P.C. statement. In which he totally denied the entire case of the complainant. In support of his denial of the accused, he examined himself as DW.1 by way of affidavit and examined two witnesses as DW.2 and 3 and got marked Ex.D.1 to
5. DW.1 to 3 have been fully cross-examined by the complainant counsel and thus the accused closed his side evidence.
6. Learned Magistrate after considering the evidence on record, convicted the accused, passed order imposing fine of Rs.15,00,000/-. In default, accused was directed to undergo 5 Crl.A.No.889/2021 simple imprisonment for a period of one year, out of the fine amount so realized, a sum of Rs.14,95,000/- is ordered to be paid to complainant as compensation and Rs.5,000/- to be remitted to State.
7. Being aggrieved by the quantum of compensation of awarded to appellant/complainant and seeking for enhancement of compensation amount to twice the amount of cheque, appellant/complainant has preferred this appeal on the following grounds :
(a) That the impugned Judgment dated 28.05.2020, deserves to be modified to the double of cheque amount as the compensation awarded by the Trial court is less than the cheque amount, court below has committed a serious error of law and jurisdiction while convicting the respondent has not awarded proper compensation, appellant has made out prima facie case, then the trial court ought to have passed proper compensation u/S 357(3) of Cr.P.C. to the extent of double the cheque amount.
(b) the award of compensation is less than the total value of the dishonoured cheque, hence trial court has not passed proper compensation.6
Crl.A.No.889/2021
(c) the trial court has shown lenience to respondent, even the Act regarding punishment prescribed for an offence under Chapter- imprisonment for a term which may extend to two years or with fine which may extend to twice of the amount of cheque or with both, but the trial court has awarded the compensation to respondent only less than the dishonoured cheque amount. It is prayed that this Hon'ble court be pleased to allow the present criminal appeal and thereby modify the judgment /conviction order dated 28.5.2020 passed in CC No. 22567/2016 by enhancing the compensation to the extent of double the cheque amount.
(d) appellant /complainant has produced document as well as oral evidence and established the liability of respondent and thereby issuance of cheque in favour of appellant towards discharge of his liability and legally enforceable debt due to the extent of cheque amount when at the time of the presenting the cheque as per Ex.P1.
(e) Trial court in the absence of any materials or documentary proof of defence, has erred in coming to conclusion to pass the judgment without awarding proper compensation to the appellant.
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Crl.A.No.889/2021
8. Heard the learned advocate for appellant. Learned advocate for appellant filed memo with following citations :
1. Uttam Ram Vs Devinder Singh Hudan and another in Criminal Appeal No. 1545/2019 (arising out of SLP (Crl) No. 3452/2019)
2. Mainuddin Abdul Sattar Shaikh Vs. Vijay D Salve reported in 2015(9) SCC
3. R Vijayan Vs Babu and another reported in 2012(1) Bankers Journal
4. IDEB Buildcon (P) Ltd, Vs. Narinder Malik reported in 2016 (3) KCCR
9. Despite grant of opportunity learned advocate for respondent has not addressed arguments. Liberty given to respondent to file written arguments or to address oral arguments has not been utilized by respondent.
10. The points that arise for my consideration are :-
(1) Whether this appeal filed u/S 372 of Cr.P.C. is maintainable?8
Crl.A.No.889/2021 (2) Whether the trial Court committed an error or illegality by not imposing double the amount of cheque as fine and awarding suitable compensation to appellant/ complainant?
(3) What order ?
11. My findings to the above points are as follows:
Point No. 1 : In the Negative.
Point No.2 : Does not arise for consideration in this appeal.
Point No. 3 : As per final Order for the following:
REASONS
12. Point No. 1 :- Notice was issued to respondent/accused, trial court records were called for, trial court records are received. Respondent/ Accused
13. Section 372 of Cr.P.C. is extracted here under:
"Sec. 372. No appeal to lie, unless otherwise provided
- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force."
Provided that the victim shall have a right to prefer an appeal against any orders passed by the Court, acquitting the accused or convicting for a lessor offence or imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinary lies against order of conviction of such court. 9
Crl.A.No.889/2021
14. Plain reading of the proviso to Section 372 gives an impression that complainant/ victim has a right to prefer appeal, when inadequate compensation is imposed by Trial Court.
15. The term victim is defined in Section 2(wa) of Cr.P.C, which was inserted vide amended Act 2008 dated 7.1.2009. The said definition is extracted below:
(wa) victim means a person who has suffered any loss or injury caused by reason of the Act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heirs.
16. The Hon'ble High Court of Karnataka in Criminal Petition No. 6072/2014, in the case of M/s Hill Range Power Project Developers and others Vs. M/s Acciona Wind Energy Private Ltd., While dealing with the question "whether appeal can be maintained against Judgment of acquittal for an offence punishable u/S 138 of N I Act before jurisdictional Sessions Court under proviso to Section 372 of Cr.P.C. has held as under:
"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 10 Crl.A.No.889/2021 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."
17. In the aforesaid case before the Hon'ble High Court of Karnataka appeal against an order of acquittal was filed, whereas in the instant case, appeal has been filed seeking for enhancement of compensation and for imposing double he cheque amount as fine.
18. It is pertinent to refer to the decision of Hon'ble Supreme Court in the case of Parvinder Kansal vs The State Of NCT of Delhi reported in (2020) 19 SCC 4416. In the said case offence alleged in FIR were punishable under Section 364(A), 302 and 201 of IPC. The Hon'ble Supreme Court at para No.8 of the said Judgment has observed hereunder:
"On the other hand it is submitted by learned counsel for the State of NCT of Delhi that a reading of provision under Section 372 and Section 377 of Cr.PC makes it clear that the appeal under Section 372 Cr.PC by the victim is a qualified one which is maintainable in the event of acquittal of the accused or convicting for lesser offence or for imposing inadequate compensation only, whereas under Section 377 Cr.PC State Government is 11 Crl.A.No.889/2021 empowered to prefer appeal to the High Court in the event of inadequate sentence by the Sessions Court. It is stated by learned counsel that for enhancement of sentence, victim cannot maintain appeal under Section 372 of Cr.PC. [email protected]. (Crl.)No.3928 of 2020"
"The Hon'ble Supreme Court has clearly observed that victim's right of appeal is concerned, restricted to three eventualities: (1) acquittal of the accused, conviction of the accused for lessor offence or for imposing compensation. (2) Conviction of the accused for lessor offence (3) or for imposing compensation."
19. Hon'ble High Supreme Court has further observed as under:
"While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate,
20. It is necessary to note here that appellant is aggrieved due to the fact that double the amount of cheque has not been imposed as fine. At this juncture, it is necessary to refer to the operative part of the impugned Judgment which is as under: 12
Crl.A.No.889/2021 "Acting under Section 255(2) of Cr.P.C, the accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.
The accused sentenced to pay a fine of Rs. 15,00,000/- (Rupees Fifteen Lakhs only). The same shall be paid by the accused within 30 days from the date of this order.
Out of the said fine amount, a sum of Rs. 14,95,000/- ( Rupees Fourteen Lakhs Ninety Five Thousand only ) has been awarded to the complainant as compensation under Section 357 of Cr. P.C. The remaining amount of Rs.5,000/- ( Rupees Five Thousand only ) is ordered to adjust towards the state as fine.
In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of 1 ( One Year).
21. It is pertinent to state here that the aforesaid sum of Rs.15,00,000/- represents the amount mentioned in Ex.P1. Appellant by filing this appeal is questioning the order of sentence i.e., imposition of fine of Rs.15,00,000/- in other words appellant/complainant is seeking for enhancement of the fine amount to Rs. 30,00,000/-and consequential award of compensation from the said fine amount. It is necessary to note 13 Crl.A.No.889/2021 here that as per the observation made by the Hon'ble Supreme Court in para No.8 of Parvinder Kansal case, the order of sentence of fine cannot be questioned by appellant /complainant as inadequate. In plain words only in the event, sentence of fine is passed by learned Magistrate, the question of awarding compensation from out of the fine so imposed arises. It is necessary to note here that Hon'ble High Court of Karnataka in the decision of M/s Hill Range Power Project Developers and others case, has clearly held that complainant in a 138 N.I.Act case, does not fall within the definition of victim u/S 2 (wa) of Cr.P.C., thus, appeal for enhancement of fine amount and subsequent award of compensation would not be maintainable.
22. Along with the appeal memo , appellant has produced the certified copy of the orders passed by Honbl'e High Court of Karnataka in Criminal Revision Petition No. 575/2020 . in the said revision petition, appellant herein is the Revision petitioner, it was filed with prayer to modify the Judgment/Conviction order dated 28.05.2020 passed in C.C.22567/2016 on the file of 13th ACMM, Bengaluru. Observations made by Honbl'e High Court of Karnataka at para 3, 4,5 and 6 is as under :
14
Crl.A.No.889/2021 "3. The present Revision Petition is filed against the order dated
23.5.2020 passed in CC No. 22567/2016 on the file of the XIII Addl. Chief Metropolitan Magistrate, Bengaluru only against the fine and compensation amount.
4. The main ground urged on behalf of the Revision Petitioner that the Trial Court awarded the compensation which is less than the cheque amount and therefore, the impugned order is bad in law.
5. Therefore, in such circumstances, the revision lies to the District Court for seeking enhancement of the sentence and fine amount.
6. Accordingly, the Criminal Revision Petition stands disposed of with a liberty for the Revision Petitioner to approach the Sessions Court."
23. Hon'ble Supreme Court in the case of Parvinder Kansal has held that even a victim cannot question the order of sentence as inadequate. It is necessary to note that appellant has filed Criminal Appeal under Sec.372 of Cr.P.C.
24. The remedy available to appellant/complainant is before other forums, liberty is reserved to appellant to eke out remedy in proper forum by filing necessary application. 15
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25. As this appeal has been held to be not maintainable, the citations relied upon by appellant are to be considered while deciding on merits in proper forum/form.
26. Point No.2: In view of the finding arrived at point No.1, point No.2 cannot be decided in this appeal, as the complainant /appellant is in the first instance is not a victim as defined u/S 2 (wa) of Cr.P.C. and appellant/complainant Under Sec. 372 of Cr.P.C. cannot maintain an appeal questioning the order of sentence as inadequate. However, liberty is reserved to appellant to eke out his remedy in the manner known to law. Hence, I answer point No. 2, as does not arise for consideration in this appeal.
27. Point No. 3: In view of my findings on point Nos.1 & 2, I proceed to pass the following:-
ORDER Appeal filed by Appellant under Sec. 372 of Cr.P.C. is dismissed as not maintainable. 16
Crl.A.No.889/2021 Liberty is reserved to appellant to eke out his remedy in the manner known to law.
Send back Trial Court records.
(Dictated to Stenographer, directly on computer, typed by him, thereafter corrected and then pronounced by me in open court on this the 14th day of March, 2023).
(Narashimsa.M.V.) LX Addl.City Civil & Sessions Judge, Bengaluru.