Andhra HC (Pre-Telangana)
Sardar Harvinder Singh vs Chabrolu Hutasana Rao And Another on 6 November, 2014
Author: M.Seetharama Murti
Bench: M.Seetharama Murti
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI Criminal Revision Case No.125 of 2008 06-11-2014 Sardar Harvinder Singh...Petitioner Chabrolu Hutasana Rao and another...Respondents Counsel for the Petitioner:Sri Posani Venkateswarlu Counsel for Respondent No.:1 :Sri S.Syam Sundera Rao Cousel for Respondent No.2: State <Gist: >Head Note: ?Cases referred: 2010(2) ALD (Crl.) 961 (AP) 2011(1) ALD (Crl.) 201 (AP) (2002)2 SCC 420 THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI Criminal Revision Case No.125 of 2008 ORDER:
This is a criminal revision case under sections 397 & 401 of the Code of Criminal Procedure, 1973 (the CrPC for short) by the petitioner/ complainant assailing the inadequacy of sentence imposed on the 1st respondent/sole accused by the Judicial Magistrate of First Class of Special Mobile Court holding Full Additional Charge of the Court of the Special Judicial First Class Magistrate for Excise, Guntur in C.C.No.166 of 2006 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
2. The facts relevant, in brief, are as follows: - The complainant/petitioner had filed a private complaint against the accused for the offence punishable under Section 138 read with section 142 of the Negotiable Instruments Act, (the Act for brevity). The accused had contested the said case. During the course of trial, the complainant and his supporting witness were examined as PWs.1 and 2 and the accused was examined as DW1. Exhibits P1 to P6 and D1 and D2 were exhibited. On merits, the trial court had found the accused guilty of the aforementioned offence and had convicted him under Section 255 (2) of the CrPC. However, after hearing the accused on the measure of sentence, the trial court had sentenced the accused to pay a fine of Rs.10,000/- and to suffer simple imprisonment for three months in default of payment of the said fine amount.
3. Having been aggrieved of the quantum of sentence imposed against the accused, the complainant had preferred this revision case contending inter alia that the imposition of fine alone as sentence that too in a sum of Rs.10,000/- is grossly inadequate and is not commensurate to the gravity of the offence which was established against the accused.
4. I have heard the submissions of the learned counsel for both the sides. I have perused the material record.
5. Now the points for determination are:
Whether in the facts and circumstances of the case the sentence of fine of Rs.10,000/- alone coupled with in default simple imprisonment of three months imposed against the respondent/accused is inadequate for the offence punishable under section 138 of the Act? And, if so, what shall be the appropriate order to be made in this revision case?
6. POINTS:
6. (a) Before adverting to the facts and merits of the case, it is pertinent to mention that the learned counsel for the 1st respondent/accused having submitted that the present revision case is not maintainable had forcefully contended that in case the complainant is unhappy on the premise that the quantum of sentence imposed by the trial Court is grossly inadequate, he ought to have preferred an appeal before a competent court. In support of the said submission, he had placed reliance on the following two decisions.
1. Chanda mala Chitemma v. State of Andhra Pradesh and others .
2. G.Basawaraj v. State of Andhra Pradesh and another In both the decisions, a reference was made to sections 372 and 378(4) of the CrPC. It is necessary to first refer to the said provisions which read as follows:
372. No appeal to lie unless otherwise provided No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court]
378. Appeal in case of acquittal (1) xxxxx (2) xxxxx (3) xxxxx (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
Coming to the decision first cited, it is a case in which the accused were tried for the offences punishable under Sections 323, 427 and 509 read with Section 34 of the IPC and were acquitted after full fledged trial. The de facto complainant who is aggrieved of the judgment of acquittal recorded by the trial court had filed a revision case before this court. This court having referred to the above said provisions of law had held that the de facto complainant can maintain an appeal and that her appeal, if any, shall lie before the Court of Sessions concerned but the de facto complainant cannot invoke the jurisdiction of this court under sections 397 and 401 CrPC. In the decision second cited, the facts would show that the complainant filed two criminal appeals before an Additional Sessions Court against the judgments passed in two calendar cases by an Additional Judicial Magistrate of First Class respectively recording acquittal of the accused. The accused filed two criminal petitions before this court questioning the filing of the criminal appeals by the complainant. In the said factual background, this court had taken note of an important fact that both the appeals before the Additional Sessions Court were filed in November 2008 prior to the Code of Criminal Procedure (Amendment) Act, 2008 (Act No.5 of 2009) which came into force on 31.12.2009 and had therefore, held that both the appeals are not maintainable before the Additional Sessions Court. However, in the said decision, this Court had held as follows: -
Thus, under the recent amendment of the year 2008, the Parliament thought it fit to confer the right to file appeal on the victim also apart from the State or the complainant. Further, jurisdiction was conferred not only to the High Court but also the Sessions Court for entertaining such appeal of the victim against order of acquittal, by introducing the words such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court contained in the proviso to Section 272 Cr.P.C.
Therefore, on facts, the ratios in the cited decisions are not applicable to the case on hand as in the case on hand the accused is not acquitted but was found guilty of the offence under the Act and was convicted and was also sentenced, though to pay fine only. The learned counsel for the complainant, therefore, distinguishing both the cited decisions relied upon by the learned counsel for the 1st respondent/accused on facts peculiar to this case had contended that the revision case is maintainable. A reading of all the provisions of law referred to supra particularly the proviso to Section 372 of the CrPC would make it clear that the present revision case by the complainant on the inadequacy of sentence is maintainable. Proviso to Section 372 of the CrPC says that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation and that such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such Court.
Therefore, this proviso deals with (1) acquittal (2) conviction of the accused for a lesser offence; and (3) imposition of inadequate compensation. The proviso does not cover a situation where sentence imposed is inadequate. In the present context, a clear distinction is to be maintained between the two words compensation and fine. The said words are not synonymous. Section 53 of the Indian Penal Code (the IPC for brevity) which deals with the punishments to which the offenders are liable under the provisions of the CrPC reads as follows: -
First Death;
Secondly - Imprisonment for life;] Fourthly Imprisonment, which is of two descriptions, namely: -
(1) Rigorous, that is, with hard labour; (2) Simple; Fifthly forfeiture of property; Sixthly Fine
So, compensation is not included in the categories of punishments in the said provision of law. Order to pay compensation is dealt with in Section 357 of the CrPC. The Supreme Court has also explained the difference between the two words fine and compensation. In view of the legal position and the facts of the case, the contention of the 1st respondent/accused that the revision case is not maintainable is untenable and is therefore, liable to be rejected and is accordingly rejected.
6. (b) Coming to the adequacy or otherwise of the sentence imposed by the trial court against the accused, the cheque amount involved in the case is Rs.1,00,000/-. The sentence imposed was fine only of Rs.10,000/- coupled with in default simple imprisonment for three months. Therefore, the learned counsel for the complainant would submit that not imposing a substantive sentence of imprisonment after finding the accused guilty for the offence under Section 138 of the Act and imposing a very meagre sum of Rs.10,000/- as fine, and not even imposing a fine amount equal to the cheque amount or double the cheque amount, as stated in the penal provision, is contrary to the legislative intention and the settled legal position. He had further submitted that the imposition of inadequate sentence in the present case defeats the very object of the enactment of the provision more particularly when the accused has neither paid the cheque amount nor the amount due to the complainant under the decree obtained against the accused from a civil Court. On the other hand, the learned counsel for the 1st respondent/accused would submit that Section 138 of the Act gives a wide discretion to the learned Magistrate and that the learned Magistrate is competent to punish the accused who is convicted of the offence punishable under Section 138 of the Act for a term which may extend to two years or with fine which may extend to twice the amount of the cheque, or with both and that therefore, the Magistrate need not necessarily impose a substantive sentence of imprisonment and that the Magistrate is competent to impose only fine and the fine may be any amount, the outer limit being twice the amount of the cheque. He had further drawn the attention of this court to the circumstances in which the accused was said to have been placed namely that the accused is a heart patient suffering with diabetes and that the accused is having three children and other family members who are dependant upon him and had pleaded that if the accused is ordered to be imprisoned, his health and family would be affected and that a decree was already obtained by the complainant against the accused from a civil court for recovery of the entire amount due to him and that therefore, the view taken by the learned Magistrate in regard to the quantum of sentence cannot be said to be incorrect and that it cannot be said that the sentence of fine imposed is inadequate or not commensurate to the offence proved in the peculiar facts and circumstances of the case.
6. (c) I have bestowed my attention to the facts and the submissions. In a decision in Suganthi Suresh Kumar v. Jagdeeshan the Honble Supreme Court had considered the issue in regard to the inadequacy or otherwise of sentence in a case where the offence pitted against the accused was under Section 138 of the Act. The facts of the cited case show that two complaints arose out of two sets of cheques which were dishonoured by the drawee bank and the learned trial Magistrate after holding the accused guilty of the aforesaid offence convicted him of the said offence but sentenced him only to undergo imprisonment till the rising of the Court and pay a fine of Rs.5,000/-
in both the cases and therefore, the complainant who was unhappy had preferred two revisions before the High Court stating that the sentences imposed were grossly inadequate. He had also contended before the High Court that the Magistrate should have at least invoked the provision under Section 357(3) of the CrPC. However, a learned single Judge of the High Court did not interfere with the sentence passed against the accused and had therefore, dismissed both the revisions. Hence the complainant had preferred Criminal Appeals before the Honble Supreme Court. In this cited case, the total amount covered by the cheques involved in the two cases was Rs.4,50,000/-. The said amount has not been paid either during the pendency of the cases before the trial Court or revisions before the High Court or the appeals before the Honble Supreme Court. Therefore, the Honble Supreme Court had observed as follows: -
If the amounts had been paid to the complainant 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 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 provisions like Section 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 at least during the pendency of the case.
Placing reliance on the ratio in the above decision, it is now contended before this court that the sentence imposed in a case of this nature should sub serve the object of the enactment of the provision and that the sentence must be of such a nature as to give a proper effect to the object of the legislation and therefore, a sentence of fine at least equal to the cheque amount, if not double the cheque amount, ought to have been imposed by the trial Court. It is also submitted that a civil suit was filed and was decreed and the properties of the accused were attached are no grounds for lessening the gravity of the offence or to impose trivial sentence by the trial Court.
6. (d) I have bestowed my attention to the facts and the submissions. A perusal of the judgment of the trial Court would show that on the questioning by the court in regard to the quantum of sentence, the accused had stated that he is a heart patient and that he is suffering from diabetes and that he has to maintain three children and other family members and that if he is sentenced to undergo a term of imprisonment his health would be affected. His learned Advocate had also submitted before the trial Court that the complainant had already obtained a decree from a civil court and there is a likelihood of realization of the decree debt and therefore, a lenient view may be taken while imposing the sentence. Taking into consideration the above explanatory statement, the trial Court eventually had imposed only a sentence of fine only of Rs.10,000/-, without regard being had to the nature of the offence and the very object of enacting the penal provision. As per the provision of Section 138 of the Act, the learned Magistrate is competent to punish the accused, who is convicted of the offence punishable under Section 138 of the Act with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. The trial court had totally ignored the victim and had failed to take note of the rights of the victim/the complainant. Showing undue sympathy to the accused and imposing a sentence, which is not appropriate to the gravity of the offence, is not justified. The fact that a decree was obtained in a civil suit is no ground to impose a sentence, which is not commensurate to the gravity of the offence. It is not a case, where the amount covered by the cheque has been paid.
Therefore, in the well-considered view of this Court, the sentence imposed in a case of this nature by the trial Court does not sub-serve the object of the enactment of the provision as the sentence imposed is not of such nature as to give a proper effect to the object of the legislation. Having regard to the facts and the legal position obtaining, this court is of the view that the sentence of fine imposed against the accused by the trial Court does not give proper effect to the object of the legislation and that the sentence of fine in a sum of Rs.10,000/- coupled with in default sentence imposed defeats the very object of the enactment of Section 138 of the Act more particularly when the accused had not admittedly paid the cheque amount till date. Therefore, this Court holds that the sentence imposed in this particular case against the accused is grossly inadequate.
6. (e) However, in view of the finding that the sentence imposed by the trial Court is inadequate, this Court proposes to remand the case to the trial Court and hence it is not necessary to indicate what exactly should be the appropriate sentence to be passed. Points are accordingly answered.
7. In the result, the Criminal Revision Case is allowed and the sentence imposed against the accused by the trial Court is accordingly set aside and the case is remitted to the trial Court for passing appropriate sentence on the 1st respondent/accused after hearing both the sides again in the matter on the measure of sentence. In case the 1st respondent/accused is able to make the payment of the amount covered by the cheque he shall not be debarred from taking the plea for diminution of the sentence and maintaining the same sentence as already imposed by the trial court. The 1st respondent/accused shall be entitled to make such a plea in the event of his succeeding in paying the amount covered by the cheque.
Miscellaneous petitions pending, if any, in this revision shall stand closed.
____________________ M.SEETHARAMA MURTI, J 06th November 2014