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2006 DIGILAW 657 (KAR)

MYMOONA v. H. M. TRADING COMPANY, MANGALORE

2006-08-11

K.RAMANNA

body2006
ORDER Though the matter is listed for admission, with the consent of the learned Counsel for both the parties, these petitions are heard and disposed of by this Court by a common order. 2. The petitioner and respondents are one and the same and the revision petitioner in both the cases challenges the order of conviction passed by the learned Judicial Magistrate First Class, Mangalore and confirmed by the learned Sessions Judge, Dakshina Kannada, Mangalore. 3. For the sake of convenience and also to avoid repetition of facts, both petitions are taken up together and disposed of by a common order. 4. The petitioner in both the cases is an accused in C.C. Nos. 60 and 61 of 2005 on the file of the Judicial Magistrate First Class-V, Mangalore. The Trial Court after considering the materials placed on record by both the parties convicted the revision petitioner in both the cases directed him to suffer simple imprisonment for six months and to pay a compensation of Rs. 10,00,000/- in each case within a period of three months. In default of payment of compensation, she shall undergo imprisonment for a period of 30 days and the said order of conviction and sentence passed in both the cases by the V Judicial Magistrate First Class, Mangalore have been challenged in Criminal Appeal Nos. 48 and 49 of 2006 before the Principle Sessions Judge, Dakshina Kannada, Mangalore and after re-appreciation of the entire evidence placed on record, both the criminal appeals came to be dismissed. 5. Assailing the same, she has come up with these revision petitions mainly on the ground that inspite of the letter issued by the petitioner in both the cases not to present the cheque, both the cheques were presented for encashment. Therefore, it cannot be said that the petitioner has committed any offence under Section 138 of the Negotiable Instruments Act, 1881, and that those cheques have been presented contrary to the terms and compromise memo. Therefore, the judgment and order passed by the Courts below are illegal and she has produced the receipts to show that the transaction with the respondents in the Courts below have not been taken into consideration. Apart from that, the respondent has also filed a suit in respect of nine cheques and obtained decree. Therefore, the judgment and order passed by the Courts below are illegal and she has produced the receipts to show that the transaction with the respondents in the Courts below have not been taken into consideration. Apart from that, the respondent has also filed a suit in respect of nine cheques and obtained decree. Immovable properties of the petitioners were attached and the complainant initiated execution proceedings and the properties were brought for attachment and sale. This fact has not been considered by the Courts below and came to the wrong conclusion and those two cheques were issued as a security for withdrawal of civil suit but the complainant has not withdrawn the civil suits. Hence, both the revision petitions. 6. Heard the arguments of the learned Counsel Sri. S. Vishwajith Shetty for the revision petitioner and Sri K.M. Nataraj for the respondents in both cases. 7. During the course of arguments, learned Counsel for the revision petitioner in both the cases submitted that earlier the petitioner had issued nine cheques for rupees one lakh each. The respondent has filed nine complaints against the revision petitioner for bouncing of the said cheques. During the pendency of the criminal cases filed against her, compromise was entered into and the said cases were withdrawn by the respondent on the ground that the revision petitioner had issued two cheques for Rs. 6,00,000/- each, in all, amounting to Rs. 12,00,000/-. Since the respondent has not complied the terms of the joint memo filed in the earlier nine criminal cases, unless the respondent files a joint memo in O.S. No. 16 of 1998 on the file of the I Additional Civil Judge, (Senior Division), Mangalore, she is not obliged to pay the amount of Rs. 12,00,000/- and the two cheques issued as security but the Trial Court as well as the learned Sessions Judge have not considered this fact. It is further argued that apart from filing nine cases, the respondent had already obtained decrees in O.S. No. 346 of 1997 and execution proceedings has been initiated against the revision petitioner and immovable property was attached. Therefore, she being a woman she does not have any other property to pay the compensation and fine imposed by the Courts below in the aforesaid two cases. Further it is submitted that the petitioner is a woman. Therefore, she being a woman she does not have any other property to pay the compensation and fine imposed by the Courts below in the aforesaid two cases. Further it is submitted that the petitioner is a woman. Therefore order of sentence passed by the Trial Court directing her to undergo sentence for a period of six months be set aside by allowing the revision petitions. 8. On the other hand, Sri KM. Nataraj, learned Counsel for the respondents in both cases submitted that though the respondent has obtained a decree in O.S. No. 346 of 1997 the property has already been sold for recovery of the sales tax and though the revision petitioner tried to evade the payment of compensation awarded by the Courts below, since she has agreed to pay a sum of Rs. 6,00,000/- for that purpose she has issued two cheques for Rs. 6,00,000/- each, accordingly the earlier criminal cases filed against the revision petitioner were withdrawn. It is further submitted the cheques issued were not for security and they were issued for legally enforceable debt. It is submitted that the present revision petitions are not at all maintainable and the respondent has not violated any terms of the compromise entered into in the earlier nine criminal cases. There is no prima facie case to admit or to allow the revision petitions. Hence, learned Counsel for the respondents prays for dismissal of both the revision petitions. 9. I have carefully examined the materials placed on record and the respondent herein is a partnership firm represented by its Managing Partner and filed two private complaints under Section 200 of the Cr. P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act. It is also an admitted fact that earlier the very respondent filed nine private complaints for an offence under Section 138 of the Negotiable Instruments Act against the revision petitioner for bouncing cheques. In the said nine criminal cases a compromise was entered into between the parties. According to the terms of the compromise the revision petitioner had issued two cheques amounting to Rs. 6,00,000/- each. The said cheques were also dishonoured when those cheques were presented for encashment. After complying the mandatory provisions by issuing notice to this revision petitioner, two private complaints came to be filed. According to the terms of the compromise the revision petitioner had issued two cheques amounting to Rs. 6,00,000/- each. The said cheques were also dishonoured when those cheques were presented for encashment. After complying the mandatory provisions by issuing notice to this revision petitioner, two private complaints came to be filed. After considering the entire material placed on record, that the Courts below have rightly come to the conclusion that those two cheques were issued by the revision petitioner for purpose of legally enforceable debt. Since the revision petitioner has not complied with the terms of the compromise entered into with the respondent as mentioned in the order especially Condition No. 4 of application filed under Sections 357 and 220 before the Judicial Magistrate First Class in the aforesaid cases, prior to Suit O.S. Nos. 346 of 1997 and 16 of 1998 came to be filed for recovery of the amount by the respondent. The compromise was entered into. The suit O.S. No. 346 of 1997 came to be decreed and another suit O.S. No. 16 of 1998 filed against the revision petitioner was pending. Condition No. 4 is that if the payment is made by the revision petitioner to the complainant-respondent, the respondent-complainant shall not execute the decree passed in O.S. No. 346 of 1997 and it was also further agreed that the revision petitioner-accused and the complainant have agreed to file a joint memo. This compromise petition was filed on 15-4-2004 before the Court. Since she has not paid the decretal amount in O.S. No. 346 of 1997, the question of filing joint memo in O.S. No. 16 of 1998 pending on the file of the I Additional Civil Judge (Senior Division), Mangalore does not arise. The respondent-complainant is at liberty to file a suit for recovery of the amount as well as a complaint under Section 200 of the Cr. P.C. for bouncing of the cheques issued by the revision petitioner. Now the respondent 1 is said to have filed an execution petition and the property of the revision petitioner said to have been attached is not a ground to set aside the judgment passed by both Courts. The immovable property which was attached in O.S. No. 346 of 1997 before judgment has been sold by the sales tax department for recovery of the arrears of sales tax. The immovable property which was attached in O.S. No. 346 of 1997 before judgment has been sold by the sales tax department for recovery of the arrears of sales tax. It shows that neither revision petitioner paid the decretal amount in O.S. No. 346 of 1997 nor made any payment in respect of the two cheques of Rs. 6,00,000/- each issued by her. Therefore, I do not find any compelling reasons to differ from the findings recorded by the Courts below. After appreciation and re-appreciation of the entire material evidence by the Courts below, the Courts below have not committed any error and I do not find any ground to interfere with the impugned order under challenge. 10. As far as the reduction of the sentence imposed by the Trial Court considering the fact that the revision petitioner is a woman does not arise when she has failed to comply with the terms of the compromise and also fails to pay the amount covered under the said two cheques issued by her and the respondent 1 was compelled to approach the Magistrate's Court for bouncing of the cheques by filing a private complaint under Section 200 of the Cr. P.C. to punish the revision petitioner-accused. Therefore, she is not entitled to get any discretionary benefit at the hands of this Court to set aside the order of sentence passed by the Courts below. 11. In view of the peculiar facts and circumstances of the cases, the revision petitions are dismissed at the stage of admission.