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Judgment
K. N. Phaneendra, J.—These writ petitions are preferred calling in question the order dated 30.8.2016 passed by the learned District and Sessions Judge, Uttara Kannada, Karwar in Criminal Appeal Nos. 23/2014, 26/2014, 24/2014, 55/2014 and 22/2014 respectively, wherein the learned Sessions Judge, interfered with the sentence passed by the Additional Civil Judge and JMFC, Bhatkal, dated 23.1.2014 in CC. Nos. 622/2012, 744/2012, 748/2012, 907/2012 and 908/2012.
The brief factual matrix leading to these revision petitions are that:
The petitioners herein have approached the learned JMFC, Bhatkal, in the above said Criminal Cases alleging that the respondent/accused has issued several cheques involved in the above said cases for discharge of the debt to the petitioner. In addition, the respondent/accused has given on demand promissory notes etc., On presentation of those cheques, they were bounced with a share ''insufficient funds''. Therefore, after complying the legal requirements of Section 138 of Negotiable Instruments Act, 1881, he filed a private complaint as noted above and ultimately, after providing opportunity to both the parties, the learned Magistrate has convicted the accused and sentenced him under Section 138 of the N. I. Act.
Sl. No.
CC on the file of the addl. CJ & JMFC,Bhatkal
Crl. A. on the file of dist. & S.J., Uttar Kannada, Karwar
Cheque Amount
Compensation on awarded
Sentence Passed
1.
622/2012
23/2014
1,35,000/-
1,70,000/-
S.I. For 1 Year
2.
744/2012
26/2014
2,50,000/-
3,10,000/-
S.I. For 1 Year
3.
748/2012
24/2014
2,50,000/-
3,10,000/-
S.I. For 1 Year
4.
907/2012
55/2014
2,50,000/-
3,03,000/-
S.I. For 6 Months
5.
908/2012
22/2014
2,50,000/-
3,10,000/-
S.I. For 1 Year
In the Criminal Appeals, the sentence of imprisonment passed by the trial Court is modified to ''till rising of the court''. The fine imposed by the trial Court and direction with regard to the payment of compensation are kept as it is.
Being aggrieved by the above said judgment of conviction and sentence passed by the trial Court, the respondent herein has preferred the criminal appeals as noted above before learned District and Sessions Judge, Uttara Kannada, Karwar. The above said appeals were disposed of vide order dated 30.08.2016. The learned Sessions Judge has confirmed the judgment of conviction and sentence rendered by the trial Court against the respondent. However, it has modified the sentence of imprisonment imposed by the trial Court on the appellant till the rising of the Court as against the imprisonment imposed by the trial Courts in the above said criminal cases.
That in spite of issuance of notice by this Court, the respondent though served remained un-represented.
I have heard the arguments of the learned counsel for the petitioner.
The learned counsel for the petitioner strenuously contends before this Court that, the trial Court while Imposing the sentence considered the gravity of the offence committed by the respondent (accused) and has not imposed maximum punishment as contemplated under Section 138 of the N.I. Act. Further, fine amount has not been awarded double the cheque amount, as contemplated under Section 138 of the N.I. Act. Therefore, the sentence passed by the trial Court is reasonable and it should not have been informed by the Sessions Judge, without assigning any special reasons to modify the sentence.
In view of the above said submission, this Court has to examine, whether the sentence passed by the trial Court is adequate and that the sentence modified by the Sessions Court was really warranted interference.
On careful perusal of the judgment of the trial Court, the trial Court after providing opportunity to the complainant and the accused, has definitely came to the conclusion that, the accused has committed such an offence under Section 138 of the N.I. Act.
Though no reasons have been specifically adverted to by the trial Court for imposing sentence of one year imprisonment, but it has considered the cheque amount and the gravity of the offence and recorded the finding with regard to the sentence.
Further, the learned Sessions Judge has not given any special reasons for the purpose of reducing the sentence. However, the Sessions Court has relied upon the ruling of this court reported in ILR 2014 KAR 5237 : (2013 ACD 798 (Kar)) between M/s. Mesh Trans Gears Pvt. Ltd., Bangalore v. Dr. R. Parvathreddy, wherein this Court has observed that in an offence punishable under section 138 of the Negotiable Instruments Act, 1881, punishment of imprisonment should be imposed only in appropriate cases and if it is inadequate, twice the amount of cheque is imposed and imprisonment should be generally directed only on default of payment of the fine amount.
The learned Sessions judge has also relied upon another decision of the High Court of Kerala reported in 2012 (1) DCR 262. In the said case on facts the Court has reduced the punishment to two months rigorous imprisonment from rigorous imprisonment of 3 months and awarded an amount of Rs. 62,000/- with a default sentence of three months, considering the transaction was of the year 1997.
Though the learned Sessions Judge has relied upon above said decisions, but not expressed his opinion as to why the sentence has to be reduced in this case. It is not that the Sessions Court has no discretionary power to reduce the sentence. However, the Sessions Court has to advert reasons as to why the accused is entitled for reduction of the sentence. Even considering the observation made in the decisions of this court as noted above, wherein if the court imposes double the amount of the cheque as fine, then normally, the court may not impose the sentence of imprisonment. However, it may impose the default sentence if the fine amount is not paid. But in these cases, as noted above, in the tabular column, in none of the cases, the trial Court imposed fine amount double the amount of the cheque, it has moderately imposed the sentence of fine near to the cheque amount and awarded compensation in favour of the complainant.
Section 138 of the N.I. Act, empowers the court to punish the accused with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. Therefore, the discretion is left with the jurisdictional Court to impose such sentence depending upon the facts and circumstances of each case. The Court has to ascertain the conduct of the accused during the pendency of the proceedings with reference to any attempts to compromise the matter is made or whether he has replied the notice issued by the complainant or what is the defence taken up by the accused, whether he has taken a cantankerous defence. All those things would weigh while imposing the sentence.
The trial Court in fact has considered that though notice was issued to the accused, he refused to receive the same and during the course of the evidence, the accused has hotly contested the case and he has taken up the defence that the complainant has misused 5 cheques and filed 5 false cases. Therefore, considering the above said factual aspects, perhaps the learned trial Judge has felt appropriate to sentence the accused to undergo simple imprisonment for such period as noted in the judgment and imposed fine also.
The Sessions Judge without considering all these factors simply swayed away by saying that the sentence imposed by the trial Court is harsh, but without giving any reason for the same reduced it.
Under the above said facts and circumstances, when the accused has made the complainant to suffer loss, and made the complainant to run from pillar to post in order to secure his money, in such cases, the Court should be moderate in imposing the sentence. In the above said facts and circumstances, I find sufficient force in the arguments advanced by the learned counsel for the petitioner to the effect that the learned Sessions Judge has committed a serious error by reducing the sentence imposed upon the respondent herein without assigning any sufficient special reasons. Hence, I am of the opinion that the order passed by the learned Sessions Judge, in the impugned appeals deserves to be set aside and the judgment of conviction and sentence passed by the trial Court has to be restored. Accordingly, I proceed to pass the following:
ORDER
The Revision Petitions are allowed. Consequently the common judgment passed by the District and Sessions Judge, Uttar Kannada, Karwar in Criminal Appeal Nos. 23/2014, 26/2014, 24/2014, 55/2014 and 22/2014, dated 30.08.2016 is hereby set aside and the judgment of conviction and sentence passed by the trial Court in CC Nos. 622/2012, 744/2012, 748/2012, 907/2012 and 908/2012 are hereby restored.