Dismissed

Kola Seetha Ramaiah, v. The State of Andhra Pradesh

Telangana HC20 Aug 2014CRLRC/1176/2007

Case brief

AI extract

What is this about?

Regarding a criminal revision challenging the quantum of sentence in a cheque bounce case where the accused was fined. The court held that no minimum sentence is mandated and the revisional court cannot interfere with the trial court's proper exercise of discretion in imposing a fine alone.

What did the court decide?

The criminal revision was dismissed as devoid of merits, and pending miscellaneous petitions were also dismissed.

Kola Seetha Ramaiah, Vs The State of Andhra Pradesh — Cheque Dishonour | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1176 of 2007

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Date:20.08.2014

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Between:

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Kotla Seetha Ramaiah

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..... Petitioner.

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AND

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The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad and another.

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.....Respondents.

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The Court made the following :

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1176 of 2007

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ORDER:

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This revision is preferred against judgment dated 17-05-2007 in C.C.No.237 of 2006 on the file of Judicial Magistrate of First Class, Special Mobile Court, Guntur.

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2. The brief facts leading to filing of this revision are as follows:-

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The revision petitioner herein filed complaint before trial Court alleging that on 24-02-2006, the 2^nd respondent herein borrowed a sum of Rs.55,000/- from him and executed a promissory note promising to repay with interest at 24% per annum and on repeated request, she issued a cheque for Rs.55,000/-, drawn on State Bank of India, Treasury Branch, Guntur and when it was presented before Andhra Bank, Kannavarithota, Guntur for collection, the same was returned with an endorsement ‘Funds Insufficient” and that he issued legal notice dated 12-04-2006, which was returned, therefore, the 2^nd 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, revision petitioner was examined himself as P.W.1 and marked five documents on behalf of complainant and no witnesses are examined and no documents are marked on behalf of 2^nd

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respondent-accused. On a over all consideration of oral and documentary evidence, the learned Magistrate found the 2^nd respondent herein guilty for the offence under Section 138 of N.I Act and sentenced her to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months, not satisfied with the quantum of sentence, the complainant preferred present revision.

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3. Heard both sides.

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4. It is the contention of the revision petitioner that the trial Court, having found the 2^nd 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 following the principle envisaged in Section 357 (3) Cr.P.C. It is further contended that petitioner has no opportunity to show that the plea taken by the second respondent is an incorrect facts as it was made after completion of the trial and before passing sentence, contrary to the procedure prescribed in Cr.P.C.

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5. On the other hand, Advocate for 2^nd respondent contended that 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

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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.

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6. Now the point that would arise for my consideration is whether the Judgment of the Court below is legal, proper and correct?

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7. Point:- According to revision petitioner, the 2^nd respondent herein borrowed money from him and executed Ex.P1-promissory note and when he insisted to discharge the debt, 2^nd respondent issued Ex.P2-cheque and the same was dishonoured for want of sufficient funds. The defence of the 2^nd respondent before the trial Court was that she did not borrow any money under Ex.P1, and Ex.P2 was not issued towards discharge of the part payment of the debt. Complainant obtained blank form of promissory note and cheque towards security in chit transactions and the same were misused. The trial Court, after appreciating the evidence on record, disbelieved the version of the accused and found her 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 2^nd respondent herein is not sufficient. On the other hand, it is the contention of 2^nd respondent that the trial Court exercised it’s discretion

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judiciously, while taking into consideration the financial status and family background of the 2^nd respondent.

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8. Learned Advocate for revision petitioner relied on a decision of this Court reported in Krutti Venkata Appa Rao v. Kaki Uma Shankara Rao and anothe r^[1] , wherein it was observed as follows:-

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“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.”

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Referring to the above observation, Advocate for revision petitioner contended that sentence imposed by the trial Court is not legal. On the other hand, Advocate for 2^nd 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 subsection (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 offence under

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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.

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9. 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. 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 2^nd 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 on 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.

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10. 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 2^nd respondent for the offence under Section 138 of N.I Act. Therefore, it is held

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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.

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11. In the result, the Criminal Revision Case is dismissed as devoid of merits.

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12. As a sequel, miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand dismissed.

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__________________________ JUSTICE S. RAVI KUMAR

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Date:20.08.2014 mrb

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[1] 2003 (1) ALD (Crl.) 822 (AP)

Kola Seetha Ramaiah, v. The State of Andhra Pradesh

Case brief

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Kola Seetha Ramaiah, v. The State of Andhra Pradesh

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