Back
2023 Supreme(Online)(KER) 37650
HIGH COURT OF KERALA
C.S. DIAS, J
USHADEVI – Appellant
Versus
SASIKUMAR – Respondent
CRL.REV.PET NO. 844 OF 2011 | CRA 4/2010 | CC 164/2009
For the Appellants/Petitioners: SRI.B.PRAMOD, SRI. V. AYYAPPADAS
For the Respondents: SMT. PUSHPALATHA M K
Sentencing for dishonour of a cheque under Section 138 should prioritize compensation and adhere to guidelines to prevent inadequate sentences influenced by the defendant's personal circumstances.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 357(1)(b) - Conviction for dishonour of cheque - Courts below imposed inadequate sentences based on misplaced sympathy for the widow of the accused - Court emphasizes the importance of adhering to sentencing guidelines and maintaining a balance between punishment and compensation. (Paras 3, 5, 14)
(B) Sentencing - Discretion of sentencing - Courts must consider proportionality, deterrence, and rehabilitation while exercising discretion in sentencing convicted offenders. (Paras 6, 13)
Facts of the case:
The complainant filed a case against the accused for dishonour of a cheque, resulting in a conviction and various sentences handed down by the trial and appellate courts.
Findings of Court:
The sentence imposed was deemed inadequate, leading to modifications in the punishment with the imposition of a higher fine.
Issues: The main legal question was whether the sentence imposed was appropriate given the context of the case.
Ratio Decidendi: The court ruled that sentencing should focus on compensatory aspects, ensuring the complainant receives just compensation, rather than being unduly influenced by the defendant's personal circumstances.
Result: Revision petition allowed with an enhanced fine and sentence modifications.
| Table of Content |
|---|
| 1. overview of conviction and sentencing framework. (Para 1 , 2 , 3) |
| 2. arguments presented by counsel for revision petitioner. (Para 4) |
| 3. judicial reasoning around sentencing discretion and adequacy. (Para 5 , 11 , 12 , 13 , 14 , 15) |
| 4. sentencing guidelines and principles in section 138 matters. (Para 6 , 8 , 9 , 10) |
| 5. modification of sentence and order of the court. (Para 16) |
C.R’
ORDER
What’s the sentence to be imposed on an accused convicted for the offence under Section 138 of the Negotiable Instruments Act is the question that arises for consideration?
2. The revision petitioner had filed C.C.No.164/2009 before the Court of the Judicial First-Class Magistrate-II, Alappuzha, alleging the first respondent to have committed the offence under Section 138 of the Negotiable Instruments Act ('Act' in short). The learned Magistrate convicted the first respondent for the said offence and sentenced her to undergo simple imprisonment for a period of one month and to pay a fine of Rs.25,000/-; and if the fine amount was realised, the same to be paid to the revision petitioner as compensation under Section 357 (1) (b) of the Code of Criminal Procedure (in short, ‘Code’). Challenging the judgment, the first respondent filed Crl.A. No.4/2010 before the Court of the Additional Sessions Judge, Alappuzha. The Appellate Court, by the impugned judgment, upheld the conviction but further reduced the substantive sentence by ordering the first respondent to undergo simple imprisonment for one day (till the rising of the Court) and pay a compensation of Rs.25,000/- and in default to undergo simple imprisonment for a further period of one month.
3. It is aggrieved by the inadequacy of the sentence; the revision petition is filed.
4. Heard; Sri. V. Ayyappadas, the learned Counsel who argued on behalf of Sri.B.Pramod, the learned counsel for the revision petitioner and Smt. Pushpalatha M.K., the learned Senior Public Prosecutor appearing for the 2nd respondent – State.
5. Sentencing is a matter of discretion and is an arduous challenge for a judge. The discretion of sentencing needs to be exercised judiciously, especially when it is not guided by any statute. Sentencing is that stage of the criminal delivery system where the judge decides the punishment of the convict.
It is said that justice knows no friends and has no foes, but the law is to be administered with a hard hand, and justice cannot be diluted for sympathy.
6. In Soman v. State of Kerala [(2013) 11 SCC 382] , the Honourable Supreme Court elaborating on sentencing policy observed as under:
“15. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar [(2008) 7 SCC 550 : (2008) 3 SCC (Cri) 183] this Court acknowledged as much and observed as under: (SCC p. 552, para 2)
“2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines.”
16. Nonetheless, if one goes through the decisions of this Court carefully, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc. (See Ramashraya Chakravarti v. State of M.P. [(1976) 1 SCC 281 : 1976 SCC (Cri) 1] , Dhananjoy Chatterjee v. St
