K.P. Kalatharamenan vs P. Ravi on 18 November, 2004

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94
Madras High Court
K.P. Kalatharamenan vs P. Ravi on 18 November, 2004
Author: A Ramalingam
Bench: A Ramalingam


ORDER

AR. Ramalingam, J.

1. This revision has been filed by the complainant/petitioner against the modification of sentence made by the II Additional District Sessions Court, Erode in C.A. No. 173 of 2001 rendered by Judicial Magistrate II, Erode in C.C. No. 52 of 2000.

2. The complainant/petitioner filed complaint under section 138 of the Negotiable Instruments Act by saying that the accused/respondent borrowed Rs. 75,000/= on 28.3.1999 from the complainant and issued cheque towards discharge of the said debt and when the said cheque was presented for encashment on 19.6.1999, it was dishonoured for the reason of insufficiency of funds, before Judicial Magistrate II, Erode.

3. After trial, Judicial Magistrate II, Erode has found and concluded that the accused has committed offence under section 138 of the Negotiable Instruments Act and consequently convicted and sentenced the accused to undergo six months simple imprisonment and to pay fine of Rs. 5000/= and on payment of such fine amount, ordered for compensation of Rs. 4000/= to the complainant out of that fine amount.

4. Aggrieved against such conviction and sentence, the accused/respondent preferred C.A. No. 173 of 2001 before the II Additional District Judge, Erode and the II Additional District Sessions Judge also came to the conclusion that offence under section 138 of the Negotiable Instruments Act has been committed by the accused and consequently confirmed the judgment and conviction with the modification of sentence of imprisonment into one of compensation of Rs. 75,000/= to be paid by the accused to the complainant within three months from the date of judgment.

5. Aggrieved against such modification, the complainant/petitioner has filed this revision on the grounds that after having found that the accused has committed offence under section 138 of the Negotiable Instruments Act, the said appellate court should have confirmed the conviction and sentence given by the Trial Court and the responsibility of the accused to maintain his family cannot be a relevant fact for reducing the sentence.

6. I have gone through the entire evidence available in this case in the light of the arguments advanced by the counsels for the revision petitioner as well as the respondent. From that scrutiny, I am able to understand that the Trial Court has considered the important factors and appreciated the evidence leading to the finding that offence under section 138 of the Negotiable Instruments Act has been committed by the accused and then only convicted the accused and sentenced him to six months simple imprisonment with fine of Rs. 5000/= with the provision of compensation of Rs. 4000/= out of the said fine amount. On the other hand, the appellate court, after confirming the judgment and conviction, however, has chosen to modify the sentence of six months simple imprisonment into one of compensation of Rs. 75,000/= payable within three months without default clause and thereby it has to be considered as to whether such modification is justified and proper.

7. As per the ruling reported in SUGANTHI SURESH KUMAR v. JAGADEESHAN (2002(1) CTC 315) a Division Bench of the Supreme Court has held that the sentence should be such a nature to go give proper effect to the object of legislation and no drawer of cheque can be allowed to take dishonour of cheques issued by him light heartedly and filing of civil suits by the complainant for recovery of cheque amount and obtaining order of attachment in respect of the properties of the accused is not mitigating the circumstances for imposing minor sentence. Therefore, in the light of the above cited ruling, I am of the view that this modification given by the appellate court, in my view, cannot be construed as proper and justified one in view of the fact that providing compensation irrespective of the amount cannot be a punishment for the offence and it is an additional relief.

8. Accordingly, the matter deserves to be remitted back to the appellate court for fresh consideration and disposal of C.A. No. 173 of 2001 by the II Additional District Sessions Judge, Erode in the light of letter and spirit of the above said ruling and of course, it is open for the accused/appellant before the appellate court to plea for mercy after paying the cheque amount.

9. In the light of what is stated above, this revision is allowed and the modification of sentence given by the appellate court is set aside and the matter is remanded to the appellate court viz., the II Additional District Sessions Judge, Erode to give fresh disposal in C.A. No. 173 of 2001.

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