THE HONOURABLE SRI JUSTICE E v. VENUGOPAL CRIMINAL REVISION CASE No

Counsel for the Petitioner: Smt. V.Vijaya Bharathi. Counsel for the Respondent No.1: The Public Prosecutor Counsel for the Respondent No.2: ,- The Court madc the following: ORDER I l1-g!-7.i '{ aa+-JrJr .;/ THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL CRIMINAL REVISION CASE No.117O of 2024 ORDER: The present Criminal Revision Case is filed aggrieved by the judgment dated 17.08.2023 in Cr1.A.No.684 of 2016 passed by the IV Additional Metropolitan Session Judge, Ranga Reddy District at Kukutpally (for short, 'the appellate Court), confirming the judgment dated 17.08.2016 in C.C.No.OB of 2016 passed by the IV Special Magistrate Court, Kukutpally at Miyapur (for short, 'the trial Court').

2. Heard learned cotrnsel for revision petitioner/ accused, and Sri E. Ganesh, learned Assistant Public Prosecutor appea-ring for the respondent No.1 - State. None appears for respondent No.2/complainant. Perused the record. 3, The petitioner/ accused and her husband were well acquainted with the complainant. While so, in the first week of November 2013, the petitioner approached , ,/\ 2 complainant requesting a hand loalr of Rs.2,0O,000/_ to meet her family needs. The complainant agreed and withdrew a sum of Rs.2,O0,0OO/- from his bank account through cheque No. 171984, handing over the amount to the accused on 18.11.2013 in the presence of Mr. A. Suresh. The accused promised to repay the said amount within a short period. Thereafter, when the complainalt approached the accused multiple times requesting repayment of the loan amount, the petitioner issued cheque No.345371, dated

17.O8.2O15, for Rs.2,0O,OOO/- drawn on the Orienta_l Bank of Commerce, Chandanagar Branch. When the complainant deposited the cheque in Axis Balk Limited., Chandanagar Branch, it was returned unpaid on 19.0g.2015 with arr endorsement "Funds Insufficient". Though the complainant informed the petitioner of this over the phone, she failed to honour her promise. Therefore, on 03.09.20lS, the complainant issued a legal notice to the petitioner/accused, who received it on 04.09.2015 but did not respond. Due to typographical errors in the legal notice, a corrigendum notice was issued on 24.09.2015 correcting such mistakes. Since i :'],,:a:7 3 that the petitioner borrowed money from the complainant and issued a cheque for its repayment, which was subsequently dishonored, the accused is liable to be punished under Section 138 of the Negotiable Instruments Act.

4. During the course of tria1, on behalf of the prosecution, PWs. 1 ald 2 were examined and got marked Exs.Pl to Ex.P1O. In defence, DW1 and DW2 were examined and got marked Exs.D1 andD2. After appreciation of evidence, both the oral and documentary, available on record, the trial Court uide judgment dated 17.08.2016 found the petitioner/ accused guilty for the offence punishable under Section 138 of N.I.Act and accordingly, convicted and sentenced the petitioner to undergo simple imprisonment for a period of six months and directed to pay an amount of Rs.2,25,000/- under Section 357(3) Cr.P.C towards compensation to the complainant within a period of one month and in default of payment of compensation, to undergo simple imp.Iisonment for a period of six months for ,l 4 the offence punishable under Section 13g of the Negotiable Instruments Act. Aggrieved there by, the petitioner preferred Crl.A.No.684 of 2016 on the lile of learned VI Additiona_l Metropolitan Sessions Judge, Ranga Reddy District at Kukatpally.

5. After hearing learned counsel for the respective parties and on re-appreciation of the evidence available on record, the appellate Court, uide jud.gment dated IZ.Og.2O23, dismissed the appeal conf,rrming the judgment passed by the trial Court. As the appellalt tailed to appear on LT.Og.2O23, the appellate Court directed the trial Court to issue NBW against the petitioner and secure her presence to serve out the sentence. Assailing the same, the petitioner has frled the present Revision.

6. Learned counsel for the petitioner contended that the trial Court as well as the appellate Court failed to appreciate the evidence available on record in proper perspective and passed the respective judgments. Therefore, he seeks to se,t aside the impugned judgment. \ 5 7, On the other hand, the learned Assistant Public Prosecutor opposed the same and contended that both the Court, upon appreciating the ora,l and docuirnentary evidence available on record in right perspective, passed the respective judgments ald interference of this Court with the well considered judgments of both the Court below is unurarranted. Therefore, he seeks to dismiss the Revision.

8. A perusal of the record discloses that trx.P2 - cheque was issued for the discharge of any legally enforceable debt. There is no explanation as to why the petitioner has not given any reply to the legal notice issued by the complainant. The complainant, through his evidence supported by the evidence of PW2 and trx.P1 to P10 and the admissions made by the accused and DW2, succeeded in proving that the accused issued Ex.P2 - cheque for the discharge of a lega1ly enforceable debt and the same was returned unpaid on presentation due to 'funds insufficient'. 9 In the case on hand, both the Courts held that the petitioner / accused was guilt5r for the offence punishabie 6 + under Section 138 of NI Act, which linding, in my considered view, does not call for any interference in the exercise of revisional jurisdiction under Section 397 Cr.p.C. There are no grounds much less valid grounds to interfere with the well considered judgments passed by both the Courts.

10. Having regard to the submissions made by learned counsel for the respective parties relying on the decision in Damodar S.Pra.bhu us Saged Babalal Hr whereby and where under the Hon'ble Supreme Court, while observing that it is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect, held as follows:

3. However, there are some larger issues which can be appropriately addressed in the context of the present case. It may be recalled that Chapter XVII cornprising sections 738 to 742 was inserted into the Act by the Banking, public Financial Institutions ald Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1938). The object of bringing Section 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insuflicient arra-ngements made by the drawer, with adequate safeguards to prevenj-_. 'lzotoy s scc oot l"' 7 harassment of honest drawers. If the cheque is dishonoured for insufhciency of funds in the drawer's account or if it exceed.s the amount arralged to be paid from that account, the drawer is to be punished with imprisonment for a term which may extend to two yeaJs, or witl: hne which may exterld to twice the amount of the cheque, or with both lt may be noted that when tJle offence was inserted in the statute in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to t}re Act tn 2OO2. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a 'hne which may extent to twice the amount of the cheque' serves a compensatory purpose. What mrrst be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created lo serve the public interest in ensuring the reliability of these instmments. The irnpact of this offence is usually confined to the private parties involved in commercial transactions.

11. The Hon'lrle Supreme Court in M/s. @inpex (P) Ltd. Vd. Manoj Goeat held as follows: Allowing prosecution under both sets of complaints would be contrary to the purpose of the enactment. As noted above, it is the compensatory aspect of the remedy t1at should be given priority as opposed to the punitive aspect. The complainant rn such cases is primarily concerned with the recovery of money, the conviction of the accused serves little purpose. In fact, the threat of jaii acts as a stick to ensure p"y-".rt of money. This Court in R. Vijayan v. Baby3 emphasised how punishment of the offender is of a secondar5r concern for the complainant in the following terms: "17. Tlne apparent intention is to ensure that not only the offender is punished, but also ensure that ttre complainalt invariably receives the amount of the cheque by way of compensation Under Section 357(1)(b) of the Code' Though a complaint Under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque '(2022)IIscc705 '(zorz) t scc zso 8 and not for the recovery of the cheque amount (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complarnt is lodged Under Section 138 of the Act, a civil suit is seldom filed to recover the amount of tJre cheque. This is because of the provision enabling the court to lery a fine linked to the cheque amount and the usual direction in such cases is ]or payment as compensation, the cheque amount, as loss incurred by the complaina-nt on account of dishonour of cheque. Under Section 357(l)(b) of the Code and the provision for compounding the offences Under Section 13g of the Act most of the cases (except those where liabiJity is denied) get compounded at one stage or tJle other by pa).rnent of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by lerying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section tSS-of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque foi the offence of dishonour, becoming secondar5r.'

12. In the instant case, the petitioner is aged about 40 ye€rrs, as of now, and the complaint pertains to the year

2016. Further, letter dated 29.10.2024 submitted by the the Superintendent, Central Prison, Sangareddy, discloses that ' the petitioner was convicted and sentenced for a period of six (06) months under Section 138 of the NI Act ard also sentenced to pay Rs.2,25,000/- to the complainant under Section 357(3) of the Cr.p.C., within one(O1) month. Since, the petitioner is not financially stable, she failed to pay the l-t ,/ 9 said amount within the stipulated time and as such, she undergone simple imprisonment for a period of six (06) months on 19.04.2024. lt is stated that the petitioner completed her six (06) months conviction period on t8.1o.2024.

13. In view of the above, this criminal revision case is d.ismissed. However, the sentence imposed by the trial Court, as confirmed by the appellate Court, is reduced to the period already undergone by the petitioner' L4. Except the above modification, in all other aspects, the judgment passed by the trial Court, as confirmed by the appellate Court, shall remain unaltered' j Miscellaneous Petitions, pending if any, shall stand closed. so/- K. SREE RAMA MURTHY REGISTRAR D //rRUE coPYl/ SECTION OFFICER The VI Aclditional Metropolitan Sessions Judge' Ranga Reddv District at KukatPaliY. Thc IV Special Magistrate Court, Kukarpalll Cyberabad at Kukatpally' d;" cc iJ'M; v v?irvu Bharathi, Advoiatc [oP.UCl One CC to the Public P-*;il;fi'gh Coutt'suildings' H}'derabad' IOPUC] Tw'o CD CoPies To,

1. 2 3 4 5 ]CKlPSL +" HIGHCOURT DATED2Z/01/2025 ORDER CRLRC.No..l170 of 2024 v 1* .@ /3/9,/-(.{ -- ..':\r-. Itt- J,4)r '( 15SEPM .^ I () \.- / -l ., x ./t -7