T.N. Kaleemulla vs D. Kevalchand

A.V. Chandrashekara, J.—1. Present revision petition is filed in terms of Section 397 of Cr.P.C. challenging the judgment of conviction passed in C.C. No. 476/2009 (old No. 1929/06) and the affirmation of the same in Crl. A. No. 23/2010. Revision petitioner was the accused in the said complaint filed for the offence punishable under Section 138 of N.I. Act. Respondent herein was the complainant in the said case.

Parties shall be referred to as complainant and accused as per their ranking in the trial Court.

The case of the complainant is that he had filed a criminal case against this petitioner and other two persons who were the partners of the firm run under the name and style of M/s. T.N.B Fruits Company'' at Davanagere. The said case was registered in C.C. No. 2115/2000 on the file of the II JMFC Court, Davanagere. After contest, accused and two others were convicted, as against which, an appeal was filed before the Session Court in Crl. A. No. 76/2005. During the pendency of the said criminal appeal, the parties compromised the matter by issuing six post dated cheque for Rs. 20,800/- and one cheque of Rs. 15,000/-. On the basis of the joint memo filed by the parties with reference to these cheques, accused and two others were acquitted.

Ultimately, the cheques were presented for encashment and the same came to be dishonoured for ''insufficient of funds'' in the account of the accused. Hence, complainant got issued a legal notice calling upon the accused to pay back the amount mentioned in the cheque within 15 days from the date of receipt of notice, lest he would be forced to take appropriate criminal action. Inspite of notice sent to the correct address of the accused, he did not comply with the notice. It is in this regard, he is stated to have filed a complaint in terms of section 2(d), Cr.P.C. which was registered as PCR No. 655/2006. After contest, accused is convicted to pay a sum of Rs. 3,000/- as fine, in default, he shall undergo simple imprisonment for a period of one month and also is directed to pay a sum of Rs. 38,000/- as compensation to the complainant, in default of which, he shall undergo simple imprisonment for a period of three months. This judgment of conviction and sentence dated 03.02.2010 in CC. No. 476/2009 had been called in question in Crl. A. No. 23/2010. The said appeal is dismissed after contest and hence, concurrent findings are called in question on various grounds as set out in the revision petition.

What is argued by the learned counsel for the petitioner is that the complaint filed before the trial Court was not at all maintainable in law as statutory notice had not been sent to the correct address of the accused and that the two partners of M/s. T.N.B Fruits Company'' at Davanagere were not made as parties. Respondent is duly served, absent.

What exactly is the scope of revisional power of this court under section 397, Cr.P.C. has been succinctly explained by the Hon''ble apex court in the case of Amit Kapoor v. Ramesh Chander & Another reported in , (2012)9 SCC 460. Paragraph 12 of the said decision is relevant and is extracted below.

"12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."

Admittedly, the complainant has relied on the joint memo filed by the parties in Crl. A. No. 76/2005 in which a settlement was arrived at. It is specifically mentioned that the amount payable to the complainant was by means of six cheques for Rs. 20,800/- each and one cheque for Rs. 15,000/- and they were issued in favour of the complainant and admittedly they were post dated cheques.

On the basis of the joint memo, learned Judge of the Appellate Court chose to acquit the accused. Ex. P10 is the certified copy of the order passed in Crl. A. No. 76/2005 on 12.07.2005. Ex. P9 is the joint memo filed by the parties. Therefore, the revision petitioner herein cannot have any grievance. The cheques were issued in regard to the amount that was payable to the complainant. Hence, there existed a clear relationship of debtor and creditor.

Admittedly, the cheque bears the signature of the accused and it was returned with an endorsement ''insufficient of funds''. The statutory notice as contemplated under Section 138 of N.I. Act was issued to the correct address of the accused. The address mentioned in the RPAD cover containing the notice tallies with the address of the accused found in the cause title of the complaint. In this view of the matter, the complainant has complied with all the mandatory requirements as contemplated under Section 138 of N.I. Act. The trial Court as well as First Appellate Court have reassessed the evidence on the touchstone of intrinsic probabilities.

Both the courts below have adopted right approach to the real state of affairs and no illegality or perversity is found in the judgment of the trial court or the appellate court in convicting the accused. Hence, the judgment of conviction is to be upheld.

Insofar as the quantum of fine and compensation awarded by the trial Court is concerned, the petitioner herein cannot have any grievance. The cheque amount mentioned is Rs. 20,800/-. The compensation awarded is Rs. 38,000/- in terms of Section 357 sub clause (3) of Cr.P.C., and the same is reasonable compensation. The trial Court has not imposed any sentence of imprisonment and therefore it has adopted lenient view.

The trial Court could have imposed two times the cheque amount as fine and it has not done so. Hence, amount of compensation awarded is reasonable. Accordingly, no good grounds are made out to invoke revisional jurisdiction of this Court under Section 397 of Cr.P.C.

Viewed from any angle, there are no merits in the present petition and revision petition is liable to be dismissed and accordingly revision petition is dismissed.