9911796707
TMI Blog2021 (1) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... t on record nor there is any error of jurisdiction or law which would entitle the accused to seek for interference by this court in this Revision Petition. The sentence passed by the learned Magistrate which is confirmed by the first Appellate Court in so far as the simple imprisonment is concerned is excessive as there is no reason assigned for awarding simple imprisonment. Since there is no fine amount ordered against the State, if Revision Petitioner in ordered to pay fine of ₹ 3,05,000/- for the offence punishable under Section 138 of the Negotiable Instruments Act and ordering sum of ₹ 5,000/- as fine to the State and maintaining the compensation amount payable to the complainant in a sum of ₹ 3,00,000/- would meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the accused to make good the payment covered under the cheque within fifteen days from the date of receipt of notice. It is further contended that even though the notice was served, the accused neither complied with the callings of notice nor replied the same which necessitated the complainant to file a complaint under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate after taking cognizance of the offence alleged against the accused, secured the presence of the accused and since, accused pleaded not guilty, trial was held. In order to prove the complaint averments, the Officer of the complainant-Bank Sri D.T. Suresh was examined as PW1 and one Doddarangappa was examined as PW-2 and in all marked 10 documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Petition. He further argued that the business transaction was with one Tharanath Shetty and the accused stood as a guarantor for the loan borrowed by Sri Tharanath Shetty and for the dues in the account of Tharanath shetty, as a security, the accused had issued the cheque which is the subject matter of this lis and the same has been mis-used by the Bank by filling up the blanks in the cheque and thus, there is no legally recoverable debt proved by the bank which has been lost sight of by both the courts and thus sought for allowing the Revision Petition. Alternatively, he submitted that the sentence passed against the Revision Petitioner is excessive and thus sought for allowing the Revision Petition. 7. Even though the bank is served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss partner who duped not only the Bank but also the accused. It is an admitted fact that the bank proceeded against Tharanath Shetty also by filing a criminal case and some amount was recovered from him. Taking into account the amount received by the Bank from Tharanath shetty, the learned Magistrate convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered only ₹ 3,00,000/- as fine payable to the Bank by the accused. While doing so, the learned Magistrate has discussed about the fact that Tharanath shetty paid sum of ₹ 3,00,000/- in instalments and thereafter, a criminal case against Tharanath shetty came to be dropped. In other words, as against the cheque amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would entitle the accused to seek for interference by this court in this Revision Petition. Accordingly, point no.1 is answered. REGARDING POINT NO.2: 12. The learned Magistrate ordered three months simple imprisonment for the offence punishable under Section 138 of the Negotiable Instruments Act and a sum of ₹ 3,00,000/- to be payable as compensation to the complainant. There was no fine amount ordered for the State. The same is confirmed by the first Appellate Court. The learned Magistrate has taken into consideration that a sum of ₹ 3,00,000/- was received from Tharanath Shetty and even though the cheque is for a sum of ₹ 5,26,259/-, ordered only ₹ 3,00,000/- as the compensation. 13. In the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le maintaining the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, the Order passed by the learned Magistrate, which is confirmed by the first Appellate Court in Criminal Appeal No.29/2013 is hereby set aside. Instead, the accused is ordered to pay fine of ₹ 3,05,000/-. Out of which, a sum of ₹ 3,00,000/- is to be paid as compensation to the complainant-Bank as is ordered by the learned Magistrate and confirmed by the first Appellate Court in terms of Section 357 of Cr.PC., and balance amount of ₹ 5,000/- is ordered to be paid to the State as fine payable on or before 30th June, 2021 less the amount in deposit made by the accused before the first Appellate Court if any. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
