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2008 DIGILAW 71 (KAR)

R. Ravishaiah v. T. S. Manjula

2008-01-30

K.BHAKTHAVATSALA

body2008
ORDER K. Bhakthavatsala, J The petitioner/complainant is before this Court under Section 482 of Cr.P. C., challenging the order dated 18-1- 2005 made in C.C. No.30676/02 on the file of XIII Additional Chief Metropolitan Magistrate Court at Bangalore, and the order dated 22-8-2005 made in Criminal Revision Petition No.232/2005 on the file of Fast Track Court No.V at Bangalore city, in so far as not imposing double the cheque amount as fine for the offence under Section 138 of the Negotiable Instruments Act. 2. Heard arguments. 3. Learned Counsel for the petitioner submits that the accused had approached the complainant and requested him to invest a Sum of Rs.5,00,000/- in LPG business assuring that the complainant would be accommodated as a partner along with the accused. Thereafter, from time to time the complainant paid in all a sum of Rs.5,00,000/- to the accused. The accused started business in gas agency on 17-10-2001. Thereafter, the complainant approached the accused and requested him to make ( partnership deed, but the accused postponed the same on one reason or : the other and finally denied complainant’s share or partnership in the business. Thereafter, the complainant insisted repayment of the amount and in pursuance of that a cheque dated 1-2-2002 for a sum of Rs.5,00,000/- was issued. When that cheque was presented for realization, it was dishonoured. Therefore, the petitioner/complainant filed a private complaint as against the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act (in short ‘the Act’). The respondent/accused was convicted for the offence under Section 138 of the Act and the accused was sentenced to pay a fine of Rs.6,00,000/-, in default in payment of fine, the accused shall undergo S.I for one year. Out of the fine amount, complainant was awarded Rs. 5,80,000/- as compensation under Section, 357 of Cr.P.C. 4. Feeling aggrieved by the order of the learned Magistrate in not imposing double the cheque amount as fine and inadequate compensation, the petitioner approached the Sessions Court in Criminal Revision Petition No.232/2005. The Sessions Court, after hearing arguments, partly allowed the revision petition and modified the order of sentence of the Trial Court and enhanced the fine amount from Rs.6,00,000/- to Rs. 7 ,00,000/- and out of the fine amount, awarded compensation of Rs.6,85,000/- was awarded to the complainant. The Sessions Court, after hearing arguments, partly allowed the revision petition and modified the order of sentence of the Trial Court and enhanced the fine amount from Rs.6,00,000/- to Rs. 7 ,00,000/- and out of the fine amount, awarded compensation of Rs.6,85,000/- was awarded to the complainant. It is submitted that the First Appellate Court erred in not imposing double the cheque amount as fine and awarding reasonable compensation. Therefore, the petitioner is before this Court for enhancement of fine and enhanced compensation Learned Counsel for the petitioner cited a decision reported in 2002 (5) KLJ 516 (Smt. Bhauani Vs. D.C. Doddarangaiah and Another) and prays for imposing double the cheque amount, viz., Rs.I0,00,000/- as fine. 5. The learned Counsel for the respondent submits that the respondent/accused has not challenged the impugned order and there is no illegality or infirmity in the impugned order. 6. In the above said Bhauani’s case, learned Single Judge of this Court allowed the Criminal Revision Petition filed by the complainant and modified the sentence and enhanced the fine amount from Rs.15,000/­(sic 1,50,000/-) to Rs.3,00,000/-, (viz., double the cheque amount) and awarded compensation of Rs.2,95,000/- out of the fine amount. 7. It must be mentioned that the decision rendered in Bhauani’s case cannot be applied in all the cases and impose double the cheque amount as fine. Keeping in view that the respondent/complainant had issued cheque dated 1-2-2002 for a sum of Rs.5,00,000/-, the First Appellate Court has considerably enhanced the fine amount from Rs.6,00,000/- to Rs.7,00,000/­and awarded compensation of Rs.6,85,OOO/- to the complainant. According to Section 138 of the Negotiable Instruments Act, the offender shall be punished with imprisonment for a term, which may extend to one year or with fine, which may extend to twice the amount of the cheque or with both. It is not mandatory that in every case for the offence under Section 138 of the Act, double the cheque amount shall be imposed as fine. Apart from that the complainant has no absolute right to insist that double the cheque amount shall be imposed as fine. It is the discretion of the Magistrate. However, the First Appellate Court taking into consideration the facts of the case and the date of cheque, has enhanced the fine amount from Rs.6,00,000/- to Rs.7,00,000/-. I see no good ground to impose double the cheque amount as fine. 8. It is the discretion of the Magistrate. However, the First Appellate Court taking into consideration the facts of the case and the date of cheque, has enhanced the fine amount from Rs.6,00,000/- to Rs.7,00,000/-. I see no good ground to impose double the cheque amount as fine. 8. In the result, the petition fails and the same is hereby dismissed.