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Judgment
D.V. Shylendra Kumar, J.—This criminal revision petition u/s 397 read with Section 401 of Code of Criminal Procedure, 1908 (CrPC) by the second accused CC No 18762 of 2010, on the file of Court of XII Addl. Chief Metropolitan Magistrate, Bangalore city, wherein first accused being a private limited company - a corporate body - and not represented by any named person, and the second accused being the managing director of first accused-company and therefore the second accused acting as accused 1 and 2, is directed against the judgment and order dated 20-10-2011 passed in Crl Appeal No 229 of 2010, on the file of Addl Sessions Judge and presiding officer, Fast. Track Court-I, Bangalore, allowing the appeal preferred u/s 374(3) CrPC in part and modifying the order of sentence dated 7-3-2011 passed in CC No 18762 of 2010
A private complaint filed u/s 200 CrPC by the respondent herein for punishing the accused persons for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, the Act), on the premise that ExP1 cheque bearing No 855579 dated 6-3-2010, drawn on Vijaya Bank, BTM Layout Branch, Bangalore, for a sum of Rs. 44,00,000/-, issued by the accused persons, dishonoured by the bankers with endorsement ''fund insufficient'' etc. was registered in Criminal Case No 18762 of 2010, which resulted in an order of conviction, after the learned judge of the trial court found the accused persons guilty of the offence and the following order was passed on sentence:
ORDER
Acting under Sec. 255(2) of Cr.P.C. accused is hereby convicted for the offence punishable u/s. 138 of Negotiable Instruments Act with fine of Rs. 65,10,000/- (Rupees Sixty five Lakhs and Ten Thousand only). In default of sold fine amount accused shall under go simple imprisonment for one year. Further accused shall pay Rs. 65,00,000/- to complainant as compensation as per sec. 357 Cr.P.C. The balance fine amount of Rs. 10.000/-shall be forfeited to State.
The bail and surety bond of the accused shall stands cancelled.
Office is directed to supply free copy of. this Judgement to the accused.
In appeal by the accused No 2 - managing director of the first accused company - learned judge of the appellate court while affirmed the finding of guilt and also opined that on an examination of the overall circumstance and the judgment of the trial court, there was no discernable illegality or error committed by the trial court in appreciating the evidence on record, nevertheless, being of the view that imposition of fine of Rs. 65,10,000/ was a little on the higher side, smacking of arbitrariness. reduced the sentence of fine amount to Rs. 55,10,000/ and default imprisonment for a period of one year was maintained, From out of the fine amount, a sum of Rs. 55,00,000/- was directed to be paid by way of compensation to the complainant and a sum of Rs. 10.000/ to the state as litigation cost etc.
It is aggrieved by these concurrent findings holding the revision petitioner guilty of the offence punishable u/s 138 of the Act and even aggrieved by the reduced fine of Rs. 55,10,000/-. the present revision petition.
Appearing on behalf of the revision petitioner, Sri Satyanarayan Chalke, learned counsel, has urged many grounds. It is sought to be submitted that while ExP1 cheque amount was Rs. 44,00,000/- and even when there was an admission on the part of the complainant that some part of the amount due to him such as Rs. 16,00,000/- had been paid, the prosecution of the revision petitioner u/s 138 of the Act, is not a bona fide one and on this premise itself, the complaint should have been dismissed.
Sri Chalke has also urged that even the reduced fine amount, as reduced by the appellate court, is also on the higher side; that in spite of a sum of Rs. 44,00,000/- mentioned in ExP1 cheque, with the admission of repayment of a sum of Rs. 16.00,000/- etc., what, should have been the fine amount, can never be as high, as Rs. 55,10,000/- and therefore also, the impugned judgments are not sustainable.
Learned counsel for the petitioner-accused also fervently submits that the revision petitioner is left in a worse situation than in a civil suit; that some lenience or margin should be given, if not for reversing the finding of guilt, but at least for reduction of the fine amount.
The transaction preceding the issue of cheque is not in dispute, though learned counsel for the petitioner seeks to urge before this court that the cheque was more by way of security in respect of the transaction and was a blank cheque etc This is not the finding by the courts below, I am. in exercise of revisional jurisdiction, not inclined to go into such disputed aspects or on the basis of the submission made at the Bar before this court. A submission never partakes the place of evidence nor is substituted for evidence.
In the exercise of revisional jurisdiction, this court only, peruses the record of the court below and if and only it is found that there is something wrong or amiss in the procedure followed or in applying the statutory provisions, which has a direct bearing on the outcome of the case, interference is desirable or called for.
The lower appellate court having looked into the aspect of excessive amount of fine and having reduced it by an extent, of Rs. 10,00,000/-, 1 do not find any scope for any further revision.
Even the submission of Sri Satyanarayan Chalke, learned counsel for the petitioner, that the learned judge of the appellate court could not have directed payment of compensation u/s 357(3) CrPC. when a fine had been imposed, as this provision can come into play only when the sentence is not by way of fine, but the trial court in fact, had imposed fine and therefore the direction u/s 357(3) CrPC is not sustainable, does not merit acceptance, for the reason that in this case a direction for compensation is not one issued u/s 357(3) CrPC, but fine is already imposed in exercise of Section 138 of the Act as part of the sentence and a direction for payment this amount is only from out of the find already imposed and assuming that there is a technical error, it is not of any significance.
There is no scope for interference and accordingly revision petition is dismissed.