Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 273 (ORI)

Somanath Gamango v. Sridhar Mohapatra

2019-04-03

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner (accused) has filed this revision questioning the legality and propriety of the judgment dated 19.02.2019 passed by the learned Sessions Judge, Angul in Criminal Appeal No.15 of 2018 confirming the judgment of conviction and order of sentence dated 16.08.2018 passed by learned J.M.F.C., Angul in I.C.C. Case No.685 of 2015 (Trial No.253 of 2018) initiated at the instance of the opposite party no.1, as the complainant. 2. The case of the complainant is that the accused, being a friend of the complainant, had taken a friendly loan of Rs. 2,30,000/- from him for construction of his house with an assurance to repay the same by the end of May, 2015, for which the accused had issued two cheques of Rs. 65,000/- and Rs. 1,65,000/- bearing Nos.000008 and 000009 dated 30.05.2015 drawn on the HDFC Bank, Angul Branch, Angul in favour of the complainant. The cheques, being presented for collection, it bounced back with the remarks that "funds insufficient". So, the complainant issued a demand notice in terms of clause(b) of proviso to section 138 of the NI Act by registered post with AD on 28.8.2015, and that being received by the accused when was not paid any heed to, the complaint has been lodged. 3. The accused, in the trial, has taken the plea of complete denial. 4. The revision having been admitted, I have heard learned counsel for the petitioner-accused as also for the sole opposite party complainant. The judgments of the courts below have been perused. 5. The trial court, on analysis of evidence, has recorded the conviction as to the commission of offence under section 138 of the NI Act by the accused. He has been accordingly sentenced to undergo simple imprisonment for four months and to pay a sum of Rs. 3,00,000/- (Rupees three lakhs) towards compensation to the complainant in default to further undergo simple imprisonment for a period of two months. 7. The appellate court, on analysis of evidence at its level, having gone to address the contentions raised by the accused, has found no justification to differ with the finding of the trial court. Accordingly, the judgment of conviction having been found to be in order, the order of sentence has not been interfered with. 8. 7. The appellate court, on analysis of evidence at its level, having gone to address the contentions raised by the accused, has found no justification to differ with the finding of the trial court. Accordingly, the judgment of conviction having been found to be in order, the order of sentence has not been interfered with. 8. Learned counsel for the petitioner at the beginning, instead of questioning the finding of conviction on merit, submits that the petitioner has already deposited a sum of Rs. 60,000/- and because of the bad financial condition of the petitioner prevailing for a long period, he has not been able to pay the total amount covered under the cheque to the opposite party. He submits that the petitioner, in spite of all best possible efforts, has failed to improve his financial condition and with much difficulty has been running his family. He thus submits that the sentence of imprisonment stands too harsh for the petitioner. According to him, in the situation, the petitioner being visited with that sentence of imprisonment would cause undue hardship and suffering to his family members, who are dependents on him and it may so happen that they would be pushed to starvation. He, therefore, prays for disposal of the revision by setting aside the order of sentence as to imprisonment with appropriate modification as to the award of compensation. 9. Learned counsel for the opposite party, without disputing the present financial condition of the petitioner, submits that the opposite party has been pursuing the litigation for about 4 years by now and the petitioner having not paid the amount covered under the cheque, the opposite party has been suffering a lot and sustained huge loss being not able to utilize his money right in time of need and his friendly gesture of accommodating the petitioner by paying Rs. 2,30,000/- at the time of the petitioner's need, has been taken undue advantage of. She, therefore, submits that the compensation be accordingly fixed and for its non-payment, default sentence be stipulated. 10. 2,30,000/- at the time of the petitioner's need, has been taken undue advantage of. She, therefore, submits that the compensation be accordingly fixed and for its non-payment, default sentence be stipulated. 10. Considering the submission made and in the facts and circumstances, while maintaining the finding of conviction, the revision stands disposed of by setting aside the order of sentence of imprisonment for a period of four months with the modification as to the direction for payment of compensation to the extent that the petitioner is liable to pay a sum of Rs. 2,20,000/- (Rupees two lakhs twenty thousand only) instead of Rs. 3,00,000/- to the complainant within a period of two months hence in default of which he would undergo simple imprisonment for a period of three months. 11. The amount of Rs. 60,000/- lying with the court in deposit together with the accrued interest be released in favour of the opposite party subject to observance of all such required formalities and the petitioner is directed to cooperate in the matter as would be so required. This principal sum of Rs. 60,000/- would stand adjusted towards the above awarded compensation. 12. Thus, in so far as the payment of the above awarded compensation by the petitioner to the opposite party is concerned, the petitioner is directed to pay the balance amount of Rs. 1,60,000/- (rupees one lakh sixty thousand) within a period of two months hence and on his failure to do so, the default stipulation as aforesaid would be pressed into service and come into play.