Mercantile Finance House Private Limited vs Mr. Alfred M. Cotta, Proprietor, MAC Enterprises and State

N.A. Britto, J.—Heard learned Counsel on behalf of both parties.

These revision petitions are directed against the inadequacy of sentence imposed upon the accused, and, pertain to dishonour of two cheques in the sum of Rs. 6,32,962/- dated 10/12/1997 and Rs. 83,800/- dated 10/03/1998. It appears that there was another case in respect of another cheque of Rs. 10,000/- dated 10/10/1997 which is not the subject matter of these revisions, but in that case also sentence till rising of the Court was imposed in addition to the payment of the amount due on the said cheque. All the said three cases were decided on the same day.

In respect of both these cases, the learned JMFC did not direct any compensation to be paid to the complainant but sentenced the accused to undergo simple imprisonment for a period of one year. On appeal being filed, the said sentence was reduced till rising of the Court. In other words, the accused has not even been ordered to pay the compensation of even the amount of the cheques.

It appears that the complainant had given a loan of Rs. 25 lacs to the accused on or about 17/10/1995 and under the said agreement three flats were given to the complainant, only to be returned in case the accused was unable to repay the said loan of Rs. 25 lacs and they were returned subsequently in the year 2006 on payment of Rs. 25 lacs. It also appears that there was another agreement between the parties by way of addendum on or about 24/02/1998 under which two flats, two shops and one basement were given to the complainant since by then the liability of the complainant towards the loan with interest was increased to Rs. 50,93,347/-. Under the said addendum, the complainant was at liberty to sell the said two flats, two shops and the basement.

Shri Kantak, the learned Counsel on behalf of the petitioner/complainant has submitted that no reasons have been advanced by the learned Magistrate as to why no compensation of even of the cheque amount was ordered to be paid to the complainant. He has placed reliance on the case of Suganthi Suresh Kumar Vs. Jagdeeshan, and has submitted that the sentence imposed could be termed as a flea bite sentence. On the other hand, Shri Monteiro has submitted that the learned Sessions Judge has taken into consideration the effect of the said two agreements between the parties namely the agreement dated 17/10/1995 and the addendum dated 24/02/1998 in awarding the sentence.

Admittedly, the learned JMFC for no apparent reason did not order any compensation to be paid but imposed the sentence of imprisonment for one year. The learned Additional Sessions Judge proceeded on the basis that if the learned Magistrate had ordered no compensation to be paid then it was a fit case not to impose imprisonment for one year and proceeded to impose sentence till rising of the Court which Counsel on behalf of the accused submits, the accused has undergone.

After taking into consideration the judgment of the Apex Court in Suganthi Suresh Kumar (supra), this Court in the case of Basavraj D. Allayyanavar v. Santosh Kapadi 2007 (1) Bom.C.R. (Cri) 1028 has stated as follows;

In the case at hand, though the cheques were issued by the accused in May, 1997, and the cases ended on 31/01/2003, the amount due on the said cheques has remained unpaid and the accused must have certainly had had the last laugh by paying the meagre fine imposed by the learned Magistrate i.e. Rs. 2,500/- in each case. It is obvious that both the Courts below have disregarded the law laid down by the Apex Court in the cases cited herein above. Sentencing discretion has been perverse. Since Section 138 of the said Act provides for imprisonment or fine which may extend to twice the amount of the cheque or both, the least both the Courts below ought to have done whilst imposing sentence is to ensure that the Complainant was compensated at least with the amount due by the accused on the cheque issued by him to the Complainant. That should be the Rule unless there are good reasons to depart from the same. The learned Magistrate as well as learned Additional Sessions Judge, have given no reason why this course was not adopted or why a lenient sentence was imposed, as rightly contended on behalf of the Complainant. On the face of the punishment provided, the accused was let off with a meagre sentence which certainly could be termed to be a flea bite sentence. Though no formula of a full proof nature is possible to be laid down in awarding appropriate sentences they should be proportionate to the crime committed and the same should be awarded by taking into consideration the facts and circumstances of each case. It is not only the rights of the criminals which are required to be looked into at the time of imposition of sentence, but also of the victims of the crime and the Society at large, also by considering the object sought to be achieved by the particular legislation. Sentence to be imposed should also have a deterrent effect. As George Saville would say ''men are not hanged for stealing horses but that horses may not be stolen.''

The above judgment was followed in Hemant Pavel Gracias v. Socorro S. Fernandes 2008 (1) Bom.C.R. (Cri.) 117 observing that complainant no doubt had a remedy of filing a civil suit to recover his money but that in normal course would take years to be decided.

Counsel on behalf of the accused submits that after the disposal of these cases, the complainant in the civil suit has admitted having received over Rs. 33,97,000/-. If that is so, the complainant would be free to place this material before the learned Magistrate at the time of arguments on the point of sentence. What is the effect of the said two agreements between the two parties dated 17/10/1995 and 24/02/1998, the learned Magistrate was bound to see before imposing appropriate sentence when in a situation where the complainant has even been given authority to sell the said two flats, two shops and the basement. No reasons have been assigned by the learned Magistrate, for imposing the sentence of imprisonment and for not ordering any compensation to be paid.

Considering the facts of the case, this would be a fit case to set aside the orders of the Courts below but only as regards the sentence and direct the learned Magistrate to hear the parties and impose appropriate sentence in accordance with law, within a period of 45 days. Parties to appear before the learned Magistrate on Thursday, 21st August, 2008 at 2.30 p.m. Parties would be free to place the said agreements, or any other agreement between them, before the trial Court, which may help the Court to impose appropriate sentence.