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2006 DIGILAW 94 (ORI)

Sanjay Pradhan v. State of Orissa

2006-02-03

N.PRUSTY

body2006
JUDGMENT N. PRUSTY, J. — This Criminal Revision has been filed challenging the order/judgment dated 8.12.2004 passed in the Criminal Appeal No.40 of 2004, confirming order dated 30.4.2004 of the learned Trial Court in I.C.C. case No.304 of 1999 with regard to conviction and sentence as well as payment of compensa¬tion, with modification of setting aside the imposition of fine of Rs.5,000/-. Misc. Case No. 1151 of 2005 has been filed for modification of the order-dated 15.9.2005 passed in Misc. Case No. 171 of 2005. Heard Mr. M. B. Das, learned counsel for the petitioner and Mr. K. K. Jena, learned counsel for the opposite parties. Learned counsel for the petitioner submits that the peti¬tioner has already deposited Rs.50,000/- by way of bank draft in this Court out of the total compensation amount of Rs. 4,50,000/- as has been directed by order dated 15.9.2005 in Misc. Case No.171 of 2005 filed by the petitioner for stay realization of the amount awarded as compensation. As it appears in the present application, he has prayed for stay realization of the compensa¬tion amount by accepting the money (Rs.50,000/-) already tendered in this Court, in modification of order dated 15.9.2005. A common order dated 15.9.2005, which is sought to be modi¬fied, was passed in Misc. Case No. 171 of 2005 filed by the petitioner for stay realization of the amount awarded as compen¬sation and in Misc. Case No.585 of 2005 filed by the opposite party No.2 for modification of order dated 16.3.2005 and for directing the petitioner to deposit Rs.4, 50,000/- towards compen¬sation before this Court within a stipulated period, as has been directed by the learned Courts below in the impugned judgments. Considering the submissions made by learned counsel for both the parties, the petitioner was directed “to deposit the amount of Rs. 4, 50,000/- in the Registry of this Court by way of Bank Draft within a period of six weeks, as undertaken by the learned Counsel for the petitioner, failing which the revision shall stand dismissed without further reference to the Bench and as such all interim orders passed in favour of the petitioner shall automatically stand vacated”. As such on the basis of the under¬taking given by the petitioner through his counsel to deposit the amount of Rs. As such on the basis of the under¬taking given by the petitioner through his counsel to deposit the amount of Rs. 4, 50,000/- within six weeks, the interim order was accordingly passed and since the petitioner failed to deposit the amount within the stipulated period as per the above order dated 15.9.2005, the revision petition is to be dismissed and the interim orders to stand vacated. However, this application (Misc. Case) has been filed on 28.10.05 for modification of the above order-dated 15.9.2005. The records of the case indicate that by -order dated 16.3.2005, when the matter was listed for admission, notice was only issued on opposite party No.2 in the revision as well as in Misc. Case No. 171 of 2005 and the petitioner was released on bail. As such, till date the Criminal Revision has not been admitted. The learned Trial Court by the impugned judgment dated 30.4.2004 found the accused/appellant/petitioner guilty under Section 138 of N.I. Act and sentenced him to undergo simple imprisonment for six months, pay a fine of Rs. 5000/- in default to undergo further S.I. for two months and directed to pay the value of cheque of Rs. 4,50,000/- to the complainant within a period of two months as compensation. The learned lower appellate Court in its judgment dated 8.12.2004 confirmed all the findings of the learned trial Court, held the petitioner guilty of the offence under Section 138 of N.I. Act but modified the sentence only to the extent of setting aside imposition of fine amount of Rs.5000/- and confirmed the sentence of six months civil imprisonment and payment of Rs, 4, 50,000/- as compensation. A bare perusal of the judgment of the learned Courts below clearly indicates that there are concurrent findings on facts by both the Courts with regard to taking of money, issu¬ance of cheque by the petitioner and its return by the Bank because of insufficient fund in the account of the petitioner which was also admitted by the petitioner and when the petitioner failed to pay the amount after due notice by paper publication after return of the notice sent to him by registered post, the complaint was filed within stipulated period from the date of service of notice through paper publication. Even though there are concurrent findings on facts by the learned Courts below and there is little scope to interfere in the matter, since notice on admission was issued and an undertaking was given by the learned counsel on behalf of the petitioner to deposit the amount of Rs. 4, 50,000/- in this Court within a period of six weeks, the criminal revision was kept pending with the observation as indi¬cated above i.e. failure to deposit the amount as undertaken the revision shall stand dismissed without further reference to the Bench and as such all interim orders passed in favour of the petitioner shall automatically stand vacated. Now without complying the order dated 15.9.2005 the peti¬tioner has filed the present Misc. Case for modification of the said order after depositing Rs.50, 000/- in this Court out of total sum of Rs. 4, 50,000/-. In this application, the petitioner has not prayed for extension of time or for finding the instal¬ments to deposit the entire amount and the learned counsel sub¬mits that since Rs. 4, 50,000/- is due to be paid by the peti¬tioner, the opposite party can approach the Civil Court for redressal of his grievance in accordance with law and the peti¬tioner need not pay him the amount by way of compensation. In support of his contention, learned counsel for the petitioner cited two decisions of the Apex Court in the case of Stanny Felix Pinto - Vs - M/s. Jangid Builders Pvt. Ltd. and anoth¬er reported in 2001(1) Crimes 190 (SC) and in the case of Balraj Vs. State of U.P. reported in 1995 Cr.L.J. 3217. The facts and circumstances of both the cases are completely different to that of the present case at hand. The amount of Rs. 4, 50, 000/- in this case is not a fine amount nor a compensation to the wife of the victim in a case under Section 302 of the Indian Penal Code, rather this is a compensation amount in a case under Section 138 of the Negotiable Instruments Act. In this case admittedly the petitioner issued a cheque of Rs. 4, 50,000/- in favour of oppo¬site party No.2 because he took the amount from him and the cheque was dishonoured by the Bank due to non-availability of sufficient funds in the petitioner’s account. In this case admittedly the petitioner issued a cheque of Rs. 4, 50,000/- in favour of oppo¬site party No.2 because he took the amount from him and the cheque was dishonoured by the Bank due to non-availability of sufficient funds in the petitioner’s account. As such a case under Section 138 of the N.I. Act has been properly made out and proved against the petitioner. In view of the above, I am not inclined to entertain this application for modification of the order dated 15.9.2005 since the Criminal Revision itself merits no consideration as well as the interim order sought to be modi¬fied was passed after hearing learned counsel for both the par¬ties in Misc. Case No.171 of 2005 of the petitioner and M.C. No.585 of 2005 of the opposite parties,in their presence and on the basis of the undertaking given by the learned counsel on behalf of the petitioner to deposit the amount of Rs. 4,50,000/- within six weeks, for the purpose of enabling the petitioner to get a breathing gap,even though there is little scope for this Court to interfere with the impugned orders. But the petitioner failed to avail the same. Considering the submissions made by learned counsel for both the parties and after going through the judgments of both the learned Courts below as well as keeping in view the fact that the order dated 15.9.2005 has not been intentionally complied with by the petitioner, as it appears from his conduct-may be with some motive, the Criminal Revision stands dismissed, since the same is devoid of any merit as well as for non-compliance of the direc¬tion of this Court vide order dated 15.9.2005 and as such all the interim orders passed in the respective Misc. Cases stand vacat¬ed. In view of the above, part of the compensation amount i.e. Rs. 50, 000/- out of Rs, 4,50,000/- which has been deposited by the petitioner in this Court by way of Bank Draft be encashed and paid to opposite party No.2 towards part payment of the compensa¬tion amount, on proper identification and opposite party No.2 is at liberty to proceed against the petitioner for realization of the balance compensation amount in accordance with law. Crl. Revision dismissed.