L.R. Seetharaman vs V.S. Muthusamy

K.N. Basha, J.—This revision is preferred by the complainant challenging the order of the learned Judicial Magistrate No.III, Coimbatore

for the enhancement of sentence awarded to the respondent/accused for the offence u/s 138 of the Negotiable Instruments Act by the judgment of

conviction dated 27.4.2003 in C.C. No. 949/97 convicting the respondent/accused for the offence u/s 138 of the Negotiable Instruments Act and

imposing only a fine of Rs. 5,000/-, in default, two months simple imprisonment.

Mr. R. Asokan, learned Counsel appearing for the revision petitioner submitted that the order under challenge in this revision is presently for the

limited purpose for enhancement of the sentence as the learned Magistrate awarded only a very meagre sentence in spite of the fact that the cheque

amount involved in this matter is Rs. 1,50,000/- under the cheque-Ex. P.1 dated 18.4.97. It is submitted by the learned Counsel for the revision

petitioner that the respondent/accused also not challenged the impugned order of conviction. It is also submitted by the learned Counsel for the

revision petitioner that the respondent is owning a cinema theatre at Kodumudi, Erode District. As such, he is having sufficient funds in the event of

directing him to pay some reasonable amount as compensation. It is also contended by the learned Counsel for the revision petitioner that the

learned Magistrate has not even imposed any sentence of imprisonment and having chosen to impose only a fine the learned Magistrate ought to

have directed to pay some reasonable amount as compensation.

Mr. B. Jayaraman, learned Counsel appearing for the respondent/accused contended that there is no illegality or infirmity in the order passed by

the learned Magistrate. It is submitted by the learned Counsel that the cheque amount is Rs. 1,50,000/- and the learned Magistrate has taken into

consideration even the cheque amount and apart from that fact the learned Magistrate also considered the age of the accused at that time as he

was aged about 70 years at the time of passing the impugned order in the year 2003. It is submitted that the petitioner as on today must be aged

about 74 or 75. It is contended by the learned Counsel for the respondent that the revision petitioner has not produced any materials to show that

the respondent/accused is owning a theatre and from the theatre getting substantial income. Therefore, it is submitted by the learned Counsel that

the sentence imposed by the learned Magistrate is a reasonable one considering the facts and circumstances and there is no ground made out for

enhancement of sentence.

I have carefully considered the rival contentions put forward by either side and also perused the entire materials available on record including the

impugned judgment of conviction and sentence.

A perusal of the materials discloses that the cheque amount involved in this matter is Rs. 1,50,000/-. It is brought to the notice of this Court by

the learned Counsel for the revision petitioner that the accused/respondent has also not challenged the order of conviction and sentence. As the

revision itself is filed only for the specific purpose of seeking the relief of enhancement of compensation this Court need not go into other aspect of

the matter as the same already reached finality in the event of the accused not challenging the impugned conviction and sentence.

A perusal of the impugned order discloses that the learned Magistrate imposed only a fine of Rs. 5,000/- as the accused was aged about 70

years at the time of passing the impugned order. The learned Judge has not assigned any other reason for taking such a lenient view. The fact

remains that he has also not imposed any sentence of imprisonment.

The Hon''ble Apex Court held in Suganthi Suresh Kumar v. Jagdeeshan reported in 2002 (1) CTC 315 that

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 of revision before the High Court of this court. It 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 cases where the amount covered by the cheque remained unpaid it should be the look out of the trial magistrate that the sentence

for the offence u/s 138 should be of such nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to

take ishonour of the cheque iassued by him light heartedly. The very object of enactment of 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.

The abovesaid principle laid down by the Hon''ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. In

this case also the fact remains as per the perusal of the impugned order that the accused/respondent has not paid any amount even during the

pendency of the case towards the dishonoured cheque and the learned Magistrate has categorically held that the complainant/revision petitioner

has established the offence u/s 138 of the Negotiable Instruments Act by following the mandatory requirements contemplated u/s 138 of the

Negotiable Instruments Act. In view of the cheque amount itself is for Rs. 1,50,000/- this Court is of the considered view that imposing a sentence

of fine only and that too only an amount of Rs. 5,000/- is certainly a flee-bite sentence. It is also brought to the notice of this Court that the

respondent/accused is owning a theatre. In view of these aspects this Court is constrained to remit this matter for fresh disposal only in respect of

reconsidering the sentence to be imposed on the respondent/accused and it is open to the learned Magistrate to impose adequate and appropriate

sentence including the award of reasonable amount as compensation to the revision petitioner. It is also made clear that as the case itself is related

to the year 1997, the trial Magistrate is directed to dispose of the case after awarding suitable and reasonable sentence within a period of three

months from the date of receipt of copy of this order. The revision petitioner is also directed to get correct address of the respondent/accused and

take effective steps for fetching him before the trial court to impose sentence in accordance with law.

Before parting with this matter this Court records the appreciation to Mr. B. Jayaraman appeared as Legal Aid Counsel for the

respondent/accused and the learned Counsel is also entitled to receive remuneration of Rs. 2,500/- from the Tamil Nadu Legal Services Authority.