A.T.SIVAPERUMAL Vs. MOHAMMED HYATH(D) BY LRS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 587 of 2017, Judgment Date: Mar 27, 2017

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.587 OF 2017
               [@ SPECIAL LEAVE PETITION (CRL) NO. 4088/2011]

A.T. SIVAPERUMAL                                               APPELLANT(S)

                                VERSUS

MOHAMMED HYATH (D) BY LRS.                                    RESPONDENT(S)

                               J U D G M E N T

R. BANUMATHI, J.

1.    Leave granted.
2.    This appeal arises out of the judgment of the High Court of  Karnataka
at Bangalore in Crl. A. No.895 of 2004 in and by which the  High  Court  set
aside the acquittal of the appellant  and  convicted  him  for  the  offence
under Section 138 of the Negotiable Instruments Act and imposing a  fine  of
Rs.11,00,000/-  (Rupees  Eleven  Lacs),  in  default   to   undergo   simple
imprisonment for a period of six months.  Out of the fine amount,  the  High
Court has directed  that a sum of  Rs.10,50,000/-  (Rupees  Ten  Lacs  Fifty
Thousand) be paid as  compensation  to  the  legal  representatives  of  the
complainant/Mohammed Hyath.
3.     The  case   of   the   complainant/Mohammed   Hyath   is   that   the
appellant/accused borrowed a sum of Rs.10,00,000/-  (Rupees  Ten  Lacs),  on
01.01.2002, from him as a loan  to  develop  his  A.T.S.  Groundnuts  Sweets
Factory at Bannerghatta Road, Bangalore and undertook  to  repay  it  on  or
before 16.08.2002 with simple interest.  Further case of the complainant  is
that towards discharge of the said liability, the  appellant/accused  issued
a cheque for a sum of Rs.10,22,419/- dated  14.11.2002  drawn  on  Karnataka
Industrial Co-operative Bank Limited, Bangalore Rural  Branch,  Chamarajpet,
Bangalore.  The said cheque, when it  was  presented  for  realization,  was
returned  with  the  endorsement  “account  closed”.   After   issuing   the
statutory notice, the complainant had filed a complaint  under  Section  138
of the Negotiable Instruments Act in C.C.  No.40274/2002  before  the  XVIII
ACMM & XX ASCJ, Bangalore City.
4.    The Trial  Court  by  its  judgment  dated  27.04.2004  acquitted  the
appellant/accused on the ground that the  complainant  has  not  proved  the
case beyond reasonable doubt as the documentary and also the  oral  evidence
adduced by the appellant/accused  substantiates  the  defence  plea  of  the
accused.  Being aggrieved, the said complainant preferred appeal before  the
High Court in Criminal Appeal No.895 of 2004,  in  and  by  which  the  High
Court reversed the acquittal and convicted the  appellant  as  aforesaid  in
paragraph (2).  Being aggrieved, the appellant/accused is before us in  this
appeal by way of special leave.
5.    When the special leave petition came up for hearing,  by  order  dated
12.05.2011 this Court had granted  stay  on  condition  that  the  appellant
herein should deposit an amount of Rs.3,00,000/- (Rupees Three Lacs)  before
the Trial Court i.e. the Court of Small Causes and  ACMM,  Bangalore,  which
has been duly complied with.  The matter was lingering  on  file  for  quite
some time.  When the matter came up for hearing today  i.e.  on  27.03.2017,
the son of the appellant, by name Srinivasan,  was  present  in  the  Court.
Respondent No.4/Abdul Kaleem, was present in the Court, who stated  that  he
is representing  all  the  legal  representatives  of   complainant/Mohammed
Hyath.  We suggested to the parties and to their counsel  whether  they  can
talk to each other to arrive at an amicable settlement, for which  both  the
parties as well as Ms. Lata Krishnamurti and  Mr.  A.T.M.  Sampath,  learned
counsel appearing for the parties readily agreed.
6.    After talking to each other the parties have arrived at  a  settlement
for a  sum  of  Rs.6,00,000/-(Rupees  Six  Lacs)  including  the  amount  of
Rs.3,00,000/- (Rupees Three Lacs) already deposited before the Trial Court.
7.    In the result, the impugned judgment of the  High  Court  rendered  in
Criminal Appeal No.895 of 2004 is set aside  and  this  appeal  is  allowed.
The  appellant  is  acquitted  of  the  charge  under  Section  138  of  the
Negotiable Instruments Act.
8.    The respondents are permitted to withdraw Rs.3,00,000/- (Rupees  Three
Lacs) deposited before  the  Court  of  Small  Causes  and  A.C.M.M.  Court,
Bangalore forthwith, along with the accrued interest,  on  filing  necessary
application.
9.    The appellant is granted three months' time from today to pay  to  the
respondents a further sum of Rs.3,00,000/- (Rupees Three  Lacs)  by  way  of
demand draft in favour of Abdul Kaleem.  The appellant (represented  by  his
son) is directed to file affidavit of  undertaking  to  this  effect  before
this Court within a period of one week.  On failure to pay the  said  amount
of Rs.3,00,000/- (Rupees Three Lacs) within the time granted, the  appellant
shall be proceeded with for contempt, in addition to the other  proceedings,
in accordance with law.
10.   Pending applications, if any, shall stand disposed of.

                                                   .......................J.
                                                             [KURIAN JOSEPH]

                                                   .......................J.
                                                              [R. BANUMATHI]
      NEW DELHI;
      MARCH 27, 2017.