M/s. Shet and Co. vs Sri Mohandas

H.N. Nagamohan Das, J.—The petitioner filed a private complaint against the respondent u/s 200 of Cr.P.C. for the offence punishable u/s 138 of Negotiable Instruments Act. The Jurisdictional Magistrate recorded the sworn statement, taken cognizance of the offence, registered the case and issued summons in C.C. No. 1721/2004. On contest, the Trial Judge vide Judgment dated 16.08.2007 convicted the respondent, sentenced to pay a sum of Rs. 82,000/- and in default to undergo simple imprisonment for a term of six months Aggrieved by this order of conviction and sentence, the respondent filed a criminal appeal before the I Additional Sessions Judge at Mangalore. The petitioner being aggrieved by the quantum of sentence filed a revision petition before the I Additional Sessions Judge at Mangalore in Crl. R.P. 253/2007 seeking enhancement of sentence. The Revisional Court under the impugned order dated 22.09.2009 dismissed the revision petition on the ground that he has already taken a view in Crl. A. 201/2007. The respondent approached this Court in Crl. R.P. 304/2009 being aggrieved by the conviction and sentence by both the Courts and the same came to be dismissed vide order dated 23.02.2010.

The petitioner being aggrieved by the order in Crl. R.P. 253/2007 is before this Court in this petition seeking enhancement of sentence.

Despite service of notice, the respondent remained unrepresented.

The conviction of respondent for the offence punishable u/s 138 of Negotiable Instruments Act has attained finality in view of the order of this Court dated 23.02.2010 in Crl. R.P. 304/2009. The only question that remain for consideration is with regard to the sentence levied by the Trial Court and confirmed by the Revisional Court.

It is not in dispute that the cheque amount is Rs. 82,000/-. The Trial Court and the Revisional Court levied the sentence only for the payment of fine amount of Rs. 82,000/-. In identical circumstances, the Division Bench of this Court in the case of B. Harikrishna Vs. Macro Links Private Limited, Bangalore and Another, held as under: It would be almost obligatory on the part of the Trial Court when the case has ended in a conviction to award a compensation that would be commensurated with the legal principles of fair play and this in our view having regard to the provision of Section 117 of the Negotiable Instruments Act, which should not be less than the face value of the cheque, the interest computed at 18% per annum and the costs that may be computed by the Court. There is a distinct reason why the Legislature has provided for the upper limit of twice the face value of the cheque the reason being that having regard to the loss of interest and the costs involved that if the compensation of the fine were to be limited to the face value of the cheque, it could result in manifest injustice to the aggrieved party and the wrong-doer being benefited. In order to offset this injustice, the Legislature has provided for the upper limit of twice the face value of the cheque and in our considered view no Trial Court would be justified in overlooking this important aspect of the law.

Further, learned Single Judge of this Court in Smt. Bhavani Vs. D.C. Doddarangaiah and Another, following the law laid down by the Divisional Bench of this Court enhanced the sentence twice the cheque amount. In the facts and circumstances of this case, I am of the considered opinion that the impugned order relating to sentence requires modification. Therefore, it will be just and proper to enhance the fine amount from Rs. 82,000/- to Rs. 1,32,000/-. For the reasons stated above, the following: ORDER

i) The petition is hereby allowed.

ii) The impugned order of the sentence passed by the Trial Court on 16.08.2007 in C.C. No. 1721/2004 and confirmed by the Revisional Court vide order dated 22.09.2009 in Crl. R.P. 253/2007 is hereby modified by enhancing the sentence, directing the respondent to pay a fine of Rs. 1,32,000/- and in default to undergo simple imprisonment for a term of one year.

iii) This fine amount be paid to the petitioner as compensation.

Ordered accordingly.