THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1554 of 2006 Date:21.01.2014 Between:
Kosuri Sambasiva Rao . Petitioner.
AND Lam Rajavardhan and The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1554 of 2006 JUDGMENT:
This revision is preferred against the judgment dated 13-07-2006 in C.C.No.251 of 2005 on the file of Judicial Magistrate of First Class, Special Mobile Court, Guntur.
2. The brief facts leading to filing of this revision are as follows:-
The revision petitioner herein filed complaint before trial Court alleging that the 1st respondent herein borrowed a sum of Rs.30,000/- from him and executed a promissory note promising to repay the interest at 18% per annum and on repeated request, he issued a cheque for Rs.30,000/- drawn on Corporation Bank, Trunk Road, Guntur and when it was presented before Andhra Bank, Old Guntur for collection, the same was returned with an endorsement ‘insufficient funds’ and that he issued legal notice dated 16-05-2005 which was returned with an endorsement that the 1st respondent herein refused to receive it, therefore, the 1st respondent herein has committed an offence under Section 138 of Negotiable Instruments Act (herein after referred to as ‘138 of N.I Act’). The learned Magistrate took the complaint on file and during trial, examined three witnesses and marked six documents on behalf of complainant and no witnesses are examined and no documents are marked on behalf of accused. On a over all consideration of oral and documentary evidence, the learned Magistrate found the 1st respondent herein guilty for the offence under Section 138 of N.I Act and sentenced him to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months. Now not satisfied with the quantum of sentence, the complainant preferred the present revision.
3. Heard both sides.
4. It is the contention of the revision petitioner that the trial Court having found the 1st respondent guilty for the offence under Section 138 of N.I Act did not impose sufficient sentence. It is further contended by the Advocate for revision petitioner that the trial Court simply imposed fine without verifying the family background of 1st respondent and the judgment of the trial Court has to be set aside to the extent of sentence. On the other hand, Advocate for 1st respondent contended as per the amended provision offence under Section 138 of N.I Act is punishable 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. He contended that when there is a discretion to the Court either to impose imprisonment or fine or with both and when fine alone is awarded, after considering the representation of the accused, the same cannot be treated as illegal, therefore, there are no grounds to interfere with the order of the trial Judge.
5. Now the point that would arise for my consideration is whether the Judgment of the Court below is legal, proper and correct?
6. Point:- According to revision petitioner, the 1st respondent herein borrowed money from him and executed Ex.P1- promissory note and when he insisted to discharge the debt, 1st respondent issued Ex.P2-cheque and the same was dishonoured for want of sufficient funds. The defence of the 1st respondent before the trial Court is due to disputes between himself and the complainant, these two documents are fabricated. The trial Court, after appreciating the evidence on record, disbelieved the version of the accused and found him guilty for the offence under Section 138 of N.I Act.
There is no appeal or revision challenging the conviction.
Now the only point in dispute is with regard to quantum of sentence. According to revision petitioner, the sentence imposed against the 1st respondent herein is not sufficient. On the other hand, it is the contention of 1st respondent that the trial Court exercised it’s discretion judiciously while taking into consideration the financial status and family background of the 1st respondent.
7. Learned Advocate for revision petitioner relied on a decision of this Court reported in Krutti Venkata Appa Rao v.
[1]
Kaki Uma Shankara Rao and another , wherein it was observed as follows:-
“Chapter XVII of the Negotiable Instruments Act was introduced with an object of curbing the practice of indiscriminate issuance of cheques, without making necessary arrangements.
The offence under that Section cannot be equated with those under the IPC. If a person held guilty of the offence under Section 138 of the Act is let off by imposing a fine of paltry amount, it virtually amounts to putting a premium on their misdeeds. The offences under Chapter XVII of the Act, are the best instances, where the discretion under sub-section (3) of Section 357 Cr.P.C be exercised. The Trial Court ought to have either imposed the sentence of imprisonment or ordered payment of compensation. This Court feels that the order of the Trial Court does not confirm to the letter and spirit of the provisions of the Negotiable Instruments Act and Cr.PC.”
Referring to the above observation, the Advocate for revision petitioner contended that sentence imposed by the trial Court is not legal. On the other hand, Advocate for 1st respondent submitted that under the facts and circumstances of that case, the Court observed that trial Court ought to have exercised it’s discretion under sub-section (3) of Section 357 Cr.P.C and for that reason remitted back the matter to the Court below for fresh consideration, but nowhere it is held in that decision that the Court must impose imprisonment for the offences under Section 138 of N.I Act. He submitted that when the statute has not provided any minimum sentence and it is for the convicting Court to exercise judicial discretion and this Court under the revisional powers can only interfere if there is any wrong exercise of judicial discretion.
8. Advocate for revision petitioner also relied on a decision of Supreme Court reported in Suganthi Suresh Kumar v.
Jagdeeshan
[2]
. In that case, the cheque amount is about Rs.4,50,000/- and the trial Court imposed a fine of Rs.5,000/- only with an imprisonment till raising of the Court, which was found as inadequate by the Hon’ble Supreme Court.
9. Advocate for 1st respondent in reply to the above decision contended that the facts of this case are entirely different and in this case cheque amount is Rs.30,000/- and the fine imposed is Rs.10,000/- which is 1/3rd of the amount and the 1st respondent herein is a retired teacher who has to maintain five members and his financial position is not sound and on consideration of all these aspects, trial Court imposed fine only which is quite reasonable and therefore, the decision relied on by Advocate for revision petitioner has no application.
On a scrutiny of the material on record, I have to accept the argument of the learned counsel for 1st respondent that the trial Judge exercised his discretion judiciously and there is no perversity or impropriety in exercise of judicial discretion.
10. Admittedly, no minimum sentence is prescribed for the offence under Section 138 of N.I Act, and the offence under Section 138 of N.I Act is punishable 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 as per the amended provision. When the discretion is given to the Court either to impose imprisonment or fine or with both without prescribing any minimum sentence, the trial Court has every power to exercise it’s judicial discretion. As rightly pointed out by the learned counsel for 1st respondent if any wrong exercise of judicial discretion is noticed, then only reivsional Court can interfere. When trial Judge gave reasons for imposing fine only, which are not incorrect on the face of it or from the material available in the record. Those reasons cannot be held as wrong or incorrect or illegal. On a perusal of the record, I am of the view that the learned trial Judge has not committed any error and there is no wrong exercise of judicial discretion.
11. For these reasons, I am of the view that the trial Court has not committed any error or illegality while exercising it’s judicial discretion while sentencing the 1st respondent for the offence under Section 138 of N.I Act. Therefore, it is held that there are no grounds to interfere with the order of the trial Court and that the revision is liable to be dismissed as devoid of merits.
12. In the result, the Criminal Revision Case is dismissed.
13. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
Date:21.01.2014 mrb
JUSTICE S. RAVI KUMAR
[1] 2003 (1) ALD (Crl.) 822 (AP) [2] 2002 (1) ALD (Crl.) 417