Vallam Konda Jagannath, v. K.Motilal,

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Crl.R.C.No.1922 of 2005 JUDGMENT:

This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C. questioning adequacy of sentence vide order dated 18.07.2005 passed by Judicial Magistrate of First Class, Nandyal, in C.C.No.445 of 2003, against respondent finding him guilty for the offence punishable under Section 138 of Negotiable Instruments Act. 2.

The petitioner filed a private complaint against the accused under Section 200 Cr.P.C. and after full-fledged trial, the trial Court found respondent guilty for the offence under Section 138 of N.I.Act, imposed sentence of fine of Rs.5,000/-, in default S.I for 6 months. 3.

In the present revision, the question is only with regard to adequacy of sentence imposed against the respondent when the cheque was for Rs.2,00,000/-, which was dishonoured on its presentation by the petitioner herein.

4.

Learned counsel for the petitioner contended that the sentence imposed by the trial Court against respondent is flea-bite sentence and not commensurate with the gravity of the offence and against the object of the enactment of Section 138 of N.I.Act and prayed to set aside the order.

5.

During hearing, learned counsel for the petitioner would draw the attention of the judgment of the Apex Court in Suganthi Suresh Kumar v Jagdeeshan1 and judgment of this Court in Krutti Venkata Apparao v Kaki Uma Shankara Rao and another2.

1 (2002) SCC 420 2 2003(1) ALD (CRL.) 822 (AP)

6.

The trial Court having found that the accused guilty for the offence punishable under Section 138 of N.I.Act, admittedly imposed fine of Rs.5,000/-, though the amount covered by the cheque was Rs.2,00,000/- and the fine imposed by the trial Court is not commensurate with the gravity of the offence. Therefore, the sentence imposed by the trial Court is inadequate ex facie. 7.

The sentencing procedure adopted by the trial Court is not in accordance with law, as it is not in consonance with the object of the enactment to issue of cheque without sufficient funds and getting dishonour for one reason or the other. For imposing sentence, the Court must take into consideration the following mitigating and aggravating circumstances. The Mitigating circumstances are (1) the manner and circumstances in and under which the offence was committed, for example, mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) the age of the accused is relevant consideration, but not alone determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused, whether he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent.

In one of the judgments of the Apex Court in Suganthi Suresh Kumar's case referred supra, an identical issue came up for consideration, where the accused found guilty and was convicted for the offence punishable under Section 138 of N.I.Act, but sentenced him only to stand till rising of the Court and pay a fine of Rs.5,000/-. The accused

happy with the punishment, but the respondent approached the High Court as the sentence imposed by the trial Court is grossly inadequate. But the High Court also did not interfere with the sentence imposed by the trial Court, but the Apex Court while considering the amount covered by the cheque as Rs.4,00,000/-, concluded that if the amount covered by the cheque was paid to the complainant, either during pendency of the case before the High Court or before the Supreme Court, there perhaps would have been justification for imposing a flea-bite sentence, as had been chosen by the trial Court. But in a case where the amount covered by the cheque remained unpaid, it should be the lookout of the trial Court that the sentence for the offence under Section 138 of N.I.

Act should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Court. 8.

On an identical question came up before this Court in Krutti Venkata Apparao's case referred supra, this Court remanded the matter to the trial Court for imposing proper sentence. In view of the law declared by the Apex Court and this Court, the matter has to be remanded to the trial Court for imposing proper sentence, commensurate with the gravity of the offence, taking into consideration of the amount involved in the matter. In those circumstances, the sentence imposed against the respondent is set aside by ordering retrial of the matter by strictly adhering to the directions issued by the Apex Court, insofar as imposing of sentence only, without disturbing the conviction. 9.

Accordingly, the matter is remitted to the Court below for retrial without disturbing the conviction, but setting aside the sentence imposed

by the trial Court, i.e. fine of Rs.5,000/- having found the accused guilty for the offence punishable under Section 138 of N.I.Act and directing the trial Court to impose proper sentence, in accordance with law, commensurate with the gravity of the offence. 10.

With the above direction, this Criminal Revision Case is disposed of.

Miscellaneous petitions, if any, pending in the criminal revision case, shall stand closed.

__________________________________ M. SATYANARAYANA MURTHY J Date: 10.08.2017 eha

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Crl.R.C.No.1922 of 2005 Dt.10.08.2017 eha