Allowed

Sri Mandalapadu Vijaya Bhaskar, v. Smt. Ch.Vijaya Kumari

Telangana HC2 Jan 2012CRLRC/410/2005

Case brief

AI extract

What is this about?

The Court observed that the trial court's sentence of fine alone under Section 138 of the Negotiable Instruments Act was lenient and violated the legislative objective. The matter was remitted to the trial court to pass an appropriate sentence considering the unpaid cheque amount.

What did the court decide?

The sentence portion of the impugned judgment was set aside and the matter remitted to the trial court to impose an appropriate sentence within three months.

Sri Mandalapadu Vijaya Bhaskar, Vs Smt. Ch.Vijaya Kumari — Cheque Dishonour | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL REVISION CASE No.410 OF 2005

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Dated: 02-01-2012

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Between:

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Sri Mandalapu Vijaya Bhaskar …Petitioner AND Smt. Ch.Vijaya Kumari and another Respondents

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This Court made the following:

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL REVISION CASE No.410 OF 2005

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ORDER:-

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Petitioner in this revision is the complainant in C.C.No.242 of 2004 on the file of Court of V Additional Munsif Magistrate, Guntur. He

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lodged the said complaint against the accused-Smt.Ch.Vijaya Kumari (first respondent herein) alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’), which is a cheque bouncing offence.

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2. The complainant’s case is that the accused borrowed a sum of Rs.90,000/- from him on 16.3.2003 and executed a promissory note for that amount in his favour on the same day and subsequently, she issued a cheque dated 28.3.2004 for Rs.85,000/- bearing No.079226 drawn on Andhra Bank, Kannavarithota Branch, Guntur in part discharge of the above pronote debt. The further version of the complainant is that he presented the cheque on the same day i.e. on 28.3.2004, but it was dishonoured on the ground of ‘funds insufficient’.

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3. The trial Court after considering the evidence let in by the complainant and after hearing the learned counsel for the accused, by its judgment dated 28.1.2005 convicted the first respondent-accused for the offence under Section 138 of the Act. Further with regard to the sentence, it has let off the accused with a fine of Rs.4,000/- besides imposing default clause prison sentence for non-payment of the said fine without imposing any substantive sentence of imprisonment. It is questioning the said judgment of the trial Court with regard to the sentence, the complainant has filed this revision.

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4. The main plea of the petitioner-complainant is that the sentence imposed by the trial Court which consists of only fine and without awarding a substantive sentence of imprisonment and compensation is very lenient and is not contemplated by Section 138 of the Act and therefore, the sentence should be enhanced.

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5. On the other hand, Sri T.Ramakoteshwar Rao, learned counsel appearing for the first respondent-accused contends that the trial Court

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took a lenient view having regard to the fact that the accused is a widow, but the counsel appearing for the complainant says that the accused is working as a teacher.

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6. The question that falls for consideration is whether the sentence awarded by the trial Court can be treated as very lenient and if so, what is to be done regarding the enhancement?

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7. Section 138 of the Act prescribes a punishment with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of cheque or with both.

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8. Sri Posani Venkateswarlu, learned counsel for the petitionercomplainant argues that the trial Court did not keep in view the above provisions of Section 138 of the Act regarding punishment and it has shown lenience without any basis. He also relied upon a decision of Hon’ble Supreme Court given in Suganthi Suresh Kumar v. Jagdeeshan [(2002) 2 SCC 420]. That was also a case arising under the Act. In the said case, the amount was about Rs.4,50,000/- on two cheques. The learned Magistrate though convicted the accused therein for the offence under Section 138 of the Act, he has let him off with imprisonment till rising of Court and to pay a fine of Rs.5,000/- in both the cases. In the appeal, considering the plea of the complainant therein for enhancement of sentence, the Hon’ble Supreme Court in para 12 of the judgment considered the scope of Section 138 of the Act regarding sentences and observed as follows:

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“12. The total amount covered by the cheques involved in the present two cases was Rs. 4,50,000/-. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee-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 look out of the trial magistrates that the sentence for the offence under Section 138 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

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provisions like 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case.”

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9. Then regarding the actual conclusion, basing on the above reasoning, their Lordships have decided to remit the matter to the trial Court for reconsidering the question of sentence and for passing appropriate orders including the amount of compensation, if any.

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10. In the present case also, it may be noted that the trial Court went by the plea of the accused that she is a widow and has nobody to look after her and admittedly she has not paid the cheque amount to the complainant. The trial court also observed that the case of the accused was not such a case so as to entitle her to the benefit of the Probation of Offenders Act or under Section 360 Cr.P.C, but at the same time, it proceeded to impose a lesser sentence ignoring the object of enactment of provisions of Section 138 of the Act, which is already mentioned in the passage of the judgment of the Hon’ble Supreme Court referred to above, which need not be repeated. To repeat, the accused has not paid the cheque amount till now.

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11. In the above circumstances, I am of the opinion that the sentence imposed by the trial Court cannot be said to be an adequate one and having regard to the legal position stated by the Hon’ble Supreme Court regarding the scope of Section 138 of the Act regarding sentences, it can be said that the trial Court violated the said provision.

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12. Accordingly, the portion of the impugned judgment relating to sentence alone is set aside and the matter is remitted to the trial court to consider the question of sentences and for imposing an appropriate sentence after hearing both sides. This exercise shall be completed by the trial Court within three months from the date of receipt of this order.

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13. The Criminal Revision Case is allowed in the above terms.

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________________ N.RAVI SHANKAR, J JANUARY 02, 2012 Tsr

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRL.A.No.2605 OF 2004

Sri Mandalapadu Vijaya Bhaskar, v. Smt. Ch.Vijaya Kumari

Case brief

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Sri Mandalapadu Vijaya Bhaskar, v. Smt. Ch.Vijaya Kumari

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