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2024 Supreme(Online)(KER) 17931
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 25th DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 CRL.REV.PET NO. 322 OF 2024 AGAINST THE JUDGMENT DATED 28.10.2023 IN CRA NO.151 OF 2019 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT)-II, KOTTAYAM ARISING OUT OF THE JUDGMENT DATED 31.08.2019 IN ST NO.342 OF 2016 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM REVISION PETITIONER:
JOBY JACOB, AGED 48 YEARS, S/o JACOB, KALEEYAMPARAMBIL HOUSE, ANAKALLU.P.O, KANJIRAPPALLY, KOTTAYAM, KOTTAYAM DISTRICT, PIN - 686508 BY ADVS. K.SEENA P.RAVINDRA BABU RESPONDENTS:
1 SWARNAKADA, CSI COMMERCIAL CENTRE, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS MANAGING PARTNER SIBICHEN.V.J, KALAPPURACKAL HOUSE, POOVANTHURUTH.P.O, KOTTAYAM, PIN - 686012 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 R2 BY PUBLIC PROSECUTOR SRI SANGEETHARAJ N R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
The first appellate court erred in enhancing the fine without providing the petitioner an opportunity to be heard.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - SENTENCING - DEEMED OFFENCE - SUBSTANTIVE SENTENCE - FINE - ENHANCEMENT - HEARING
Fact of the Case:
The petitioner was convicted under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque. The trial court sentenced him to six months imprisonment and a fine of Rs. 4,20,000/-. The first appellate court reduced the imprisonment sentence to till the rising of the court but enhanced the fine to Rs. 8,00,000/- without providing the petitioner an opportunity to be heard.
Finding of the Court:
The High Court held that the first appellate court erred in enhancing the fine without providing the petitioner an opportunity to be heard. The court also held that the substantive sentence of imprisonment was not appropriate in this case and reduced it to a fine of Rs. 5,00,000/-.
Issues: 1. Whether the first appellate court erred in enhancing the fine without providing the petitioner an opportunity to be heard.2. Whether the substantive sentence of imprisonment was appropriate in this case.
Ratio Decidendi: 1. The provisions of Section 138 of the Negotiable Instruments Act do not substitute a recovery proceeding that can be initiated before a Civil Court.2. The criminal proceedings under Section 138 of the Negotiable Instruments Act shall not be regarded or recognized as a proceeding in substitution of a decree that may be obtained from a Civil Court.3. Before enhancing the fine amount, the first appellate court is liable to afford an opportunity of hearing to the accused.
Final Decision: The High Court allowed the revision petition in part and modified the sentence to a fine of Rs. 5,00,000/- in default to undergo simple imprisonment for three months.
Being a deemed offence, it is not proper to impose substantive sentence invariably in all cases, falling under Section 138 of the Negotiable Instruments Act. The deemed offence created under Section 138 of the Negotiable Instruments Act is not a substantive offence by its nature, but a statutorily created and recognized offence for the purpose to give more rigidity to commercial transaction and user of cheques. The substantive sentence ordered by the trial court for six months imprisonment was reduced to till the rising of the court by the first appellate court. But, at the same time, the first appellate court has enhanced the fine amount from Rs.4,20,000/- to Rs.8,00,000/-. It is submitted by the learned counsel for the petitioner that before enhancing the fine amount, no right of hearing was provided by the first appellate court. It is settled by the Apex Court in Kalamani Tex (M/s.) and another v. P.Balasubramanian [2021 (2) KHC 517 (SC)] that while imposing fine amount, the interest accrued can also be taken into consideration. The provisions contained in Section 138 of the Negotiable Instruments Act shall not be substituted in the place of a recovery proceeding that can be initiated before a Civil Court. In other words, the criminal proceedings under Section 138 of the Negotiable Instruments Act shall not be regarded or recognized as a proceeding in substitution of a decree that may be obtained from a Civil Court.
Necessarily, before enhancing the fine amount, the first appellate court is liable to afford an opportunity of hearing to the accused. That noble principle was not followed in the case in hand and as such the order of sentence passed by the first appellate court enhancing the fine amount will stand set aside and modified to an amount of Rs.5,00,000/- taking into consideration the amount covered by the cheque and the interest accrued. Hence, the sentence awarded by the trial court will stand modified by setting aside the substantive sentence till the rising of the court, but by ordering sentence by way of fine of Rs.5,00,000/- (Rupees five lakhs only), in default to undergo simple imprisonment for three months.
2. The accused shall appear before the trial court within a period of three months from today to receive the sentence. Till that time, no coercive steps shall be initiated against the accused.
The Criminal Revision Petition will stand allowed in part accordingly.
