IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.Rev.Pet.No. 3760 of 2007() ------------------------------ CRA.41/2003 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CC.487/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER: RESPONDENT/COMPLAINANT ------------------------------------------------------ LATHA KRISHNAN, W/O. KRISHNAN KUTTY PILLAI, OTTAPLAKKAL VEEDU, VALLIKEEZHU, KAVANADU, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS: APPELLANT/ACCUSED & STATE ------------------------------------------------------ 1. K.BABU, GOKULAM HOUSE, KANNIMELCHERRY, KILIKOLLOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZER SRI.P.B.SURESH KUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3760 OF 2007 =========================== Dated this the 15th day of September, 2008 JUDGMENT Petitioner is the complainant and respondent the accused in C.C.487/1998 on the file of Judicial First Class Magistrate II, Kollam. Learned Magistrate convicted and sentenced first respondent to undergo simple imprisonment for two months and a fine of Rs.5000/- for the offence under section 138 of Negotiable Instruments Act. Out of the fine amount Rs.4000/- was directed to be paid to the petitioner as compensation. First respondent challenged the conviction and sentence before Addl.Sessions Court, Kollam in Crl.Appeal No.41/2003. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to a fine of Rs.5000/- and in default simple imprisonment for sixty days. The revision petition is filed by the complainant challenging the modified sentence awarded by the CRRP 3760/2007 2 learned Sessions Judge. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Learned counsel appearing for petitioner pointed out that Ext.P1 cheque was for Rs.5 lakhs and Ext.P2 the letter issued by first respondent in his own handwriting establish that the dishonoured cheque was issued towards repayment of the entire amount covered by the cheque and learned Sessions Judge without considering this aspect, modified the sentence to a fine of Rs.5000/- alone and therefore the modified sentence awarded by learned Sessions Judge is disproportionate to the offence and therefore illegal and unsustainable. 4. Learned counsel appearing for first respondent argued that Ext.P1 cheque was not issued towards repayment of any amount borrowed but towards the settlement of the liability on account of construction of the building for the petitioner and appellate court was justified in reducing the CRRP 3760/2007 3 sentence to fine. Learned counsel also pointed out that in the complaint itself petitioner sought to award as compensation, a portion of the fine amount and learned Magistrate awarded only a fine of Rs.5000/- which was confirmed by the appellate court and the sentence of imprisonment was modified, as in the circumstance of the case appellate court found that a substantive sentence is not in the interest of justice. It is therefore argued that the revision is only to be dismissed. 5. Section 138 of Negotiable Instruments Act provides for a sentence of imprisonment which may extend to two years or fine or which may extend to fine twice the amount covered by the cheque. As rightly pointed out by learned counsel appearing for petitioner, trial court and appellate court found that Ext.P1 cheque was issued by first respondent towards the repayment of Rs.5 lakhs due to the petitioner. It is also clear from the evidence of PW1 that out of that amount, CRRP 3760/2007 4 Rs.2,55,000/- was paid subsequently by first respondent and Rs.2,45,000/- was still to be paid when first respondent was convicted and sentenced by the learned Magistrate. Learned Magistrate awarded a substantive sentence of simple imprisonment for one year and a fine of Rs.5000/- which was the maximum amount of fine which could be awarded by the learned Magistrate at that time. Learned Sessions Judge omitted to take note of the fact that Ext.P1 cheque is for Rs.5 lakhs. Though substantive sentence is not mandatory, the fine provided for the offence under section 138 is twice the amount covered by the dishonoured cheque. Learned Sessions Judge relied on the decision of this Court in Anilkumar v. Shammy (2002 (3) KLT 852) and reduced the sentence to fine alone. 6. This Court in Anilkumar's case (supra) held that possibility of misuse must be deemed to be eliminated as invocation of powers under section 357(3) of Code of Criminal Procedure is to be CRRP 3760/2007 5 considered only after a verdict of guilty and conviction. It was also held that misplaced sympathy cannot have any place in the criminal adjudicatory process and it would be myopic to assume that the purpose of the Legislation was only to ensure that the payee gets the amount. This court stressed the point that the purpose of the Legislation was to ensure that account holders make use of their cheques carefully, diligently and with the requisite caution so that intended healthy commercial morality would prevail in the economy. This court only held that if there are sufficient and compelling reasons the court must specify such reasons in the judgment and then only choose not to invoke the powers under section 357 of Code of Criminal Procedure and did not hold that a flea bite fine will be sufficient for the offence under section 138 of Negotiable Instruments Act. The result of the modified sentence awarded by the Sessions Judge is that inspite of the finding CRRP 3760/2007 6 that the cheque was issued for repayment of Rs.5 lakhs and first respondent committed an offence under section 138 of Negotiable Instruments Act, he was let off by paying a fine of Rs.5000/- alone. The sentence is clearly illegal and not warranted under the provisions of Section 138 of N.I. Act. As the sentence awarded is illegal and unreasonable it is set aside. Learned Sessions Judge is directed to pass appropriate sentence in accordance with law after hearing the parties. Revision is allowed. The judgment in Crl.A.41/2003 on the file of Additional Sessions Judge, Kollam is set aside with regard to the sentence alone. Crl.Appeal 41/2003 is remanded. Learned Sessions Judge is directed to pass appropriate sentence in accordance with law, after hearing the appellant and first respondent. The parties are directed to appear before the learned Sessions Judge on 29.10.2008. Learned Sessions Judge to dispose the appeal within two months from CRRP 3760/2007 7 that date. The judgment will not stand in the way of the appellate court considering application if any, filed under section 147 of Negotiable Instruments Act. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006