IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL REVISION CASE No.1598 of 2004 THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN Between: M/s. Sri Harini Chit Funds (P) Ltd., rep. by its Managing Director ….PETITIONER(S) a n d The State of A.P. rep. by its Public Prosecutor, A.P. High Court and others ….RESPONDENT(S) THE HON’BLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL REVISION CASE No.1598 of 2004 ORDER: This revision case is filed by the complainant before the trial Court against the judgment dated 02.08.2004 in C.C.No.28 of 2000 passed by the XXIII Metropolitan Magistrate, Hyderabad, whereby and whereunder the learned Magistrate found respondent Nos.4 and 5 herein (A-3 and A-4) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short – ‘the Act’), and convicted them for the same and sentenced them to pay a fine of Rs.2,500/- each and, in default of payment of fine, to undergo simple imprisonment for a period of two months. 2. The facts, in brief, are as follows. The complainant is doing chit fund business. A-3 is a firm represented by A-4 as its Managing Partner. Respondent No.3 herein (A-2) joined the chit series ST 5G with ticket No.5 for an amount of Rs.25,00,000/- with a monthly subscription of Rs.1,00,000/- for 25 months commencing from 25.09.1996. On 19.06.1997, respondent No.3 being the successful bidder received Rs.16.25 lakhs and paid installments regularly up to October, 1997 and thereafter committed default from November 1997 till September 1998. It is stated that respondent Nos.2 and 3 fell in arrears of Rs.16,55,550/- and as a result of the final settlement between the petitioner and respondent Nos.2 to 4, respondent No.5 (A-4), who is the wife of respondent No.3 (A-2), issued a cheque bearing No.073990 dated 01.09.1999 for a sum of Rs.9,25,000/- towards discharge of the liability of Rs.16,55,550/- in favour of the petitioner. The said cheque when presented for encashment on 22.10.1999 stood dishonoured for want of sufficient funds. After following the legal formalities, a complaint was filed by the petitioner and, after due trial, the trial Court found the respondent Nos.4 and 5 guilty of the offence under Section 138 of the Act, convicted them and sentenced them as stated supra. 3. The learned counsel, representing Sri Milind G. Gokhale, learned counsel for the respondents, submits that the respondents have taken away the case record on the ground that they want to engage another Advocate and they have given no objection. Today none appeared for the respondents. The record reveals that earlier also the respondents engaged an Advocate to represent them before this Court and changed the Advocate at a later stage. It appears that, with an intention to delay the disposal of this revision, the respondents are changing the Advocates and are not appearing before this Court when the case is posted for hearing. However, as the respondents had the opportunity of being heard, which they did not properly avail, there is no need to further adjourn the matter. 4. The learned counsel for the petitioner referred to a judgment of the Supreme Court in SUGANTHI SURESH KUMAR vs. JAGDEESHAN[1], wherein the amount involved was Rs.4,50,000/- and the accused was sentenced by the trial Court to undergo imprisonment till rising of the Court and to pay a fine of Rs.5000/-. The Supreme Court, on the ground that it is not even the case of the accused that he had paid the said amount either during the pendency of the case before the trial Court or revision before the High Court, held that the trial Court was not justified in imposing a flee-bite sentence and remitted the case back to the trial Court for passing appropriate sentence after hearing both sides. The Supreme Court also observed that in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 of the Act should be of such a nature as to give proper effect to the object of the legislation and that no drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly and that 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 and that it would be a different matter had the accused paid the amount at least during the pendency of the case. 5. In the case on hand also there is no evidence that the amount in dispute was paid to the complainant even during the pendency of the case before the trial Court or revision before this Court. The amount involved in this case is Rs.9,25,000/- and the sentence of punishment imposed against respondent Nos.4 and 5 is only to pay a fine of Rs.2,500/- each. 6. Having regard to the facts and circumstance of the case and the judgment of the Supreme Court in SUGANTHI SURESH KUMAR case (1 supra), the order impugned is set aside to the extent of sentence alone and is remitted back to the trial Court to hear both sides once again in the matter of sentence and pass appropriate sentence. It is further directed that the trial Court shall dispose of the case within three months from today. Notice has to be issued to the present respondents before passing sentence and it shall be the responsibility of the complainant to serve the notices on them (respondents). It is also made clear that the case shall not be heard on merits and the arguments shall be limited only to the extent of sentence. It is also made clear that the trial Court may also award appropriate compensation to the complainant. In case the respondent Nos.4 and 5 have already filed an appeal against the conviction and sentence passed against them in this case and in case the same stood allowed, appropriate orders have to be passed by the trial Court on that basis and it is needless to say that the appropriate orders would be to discharge the accused. 7. The Criminal Revision Case is accordingly ordered. ________________________ P.SWAROOP REDDY, J 1st July 2010 CVRK [1] 2002 (1) ALD (Crl.) 417 (SC)