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2012 Supreme(Online)(KER) 11221
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
MOHAMMED RAFI – Appellant
Versus
R SOMASUNDARAM – Respondent
CRIMINAL REVISION PETITION 479/2002
The court emphasized the need for leniency in sentencing under the Negotiable Instruments Act when the accused shows genuine intent to repay.
Headnote:
Negotiable Instruments - Criminal Conviction - Negotiable Instruments Act - Section 138 - Legal Framework for Dishonor of Cheque Cases
Fact of the Case:
The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act for failing to repay a cheque amount. He was sentenced to three months imprisonment and fined Rs.5,000, which was upheld by the Sessions Judge.
Finding of the Court:
The court noted the revision petitioner's financial difficulties and willingness to pay the cheque amount, leading to a modification in the sentence. The conviction was upheld but the sentence was reduced to imprisonment till the rising of the court and a Rs.5,000 fine.
Issues: Whether the sentence imposed for the cheque bounce under Section 138 can be modified considering the petitioner’s financial constraints and willingness to pay?
Ratio Decidendi: The court found that considerations of equity and the revision petitioner's intentions to repay justified a lenient approach in sentencing, despite the conviction being upheld.
Final Decision: The revision petition is allowed in part; the conviction is upheld but the sentence modified.
O R D E R
Revision petitioner is the accused in S.T.No.2803/1993 on the file of the Judicial Magistrate of the First Class-III, Palakkad. Basing upon a cheque for Rs.40,000/-, the first respondent herein prosecuted the revision petitioner accusing offence under Section 138 of the Negotiable Instruments Act. After trial, the revision petitioner was found guilty. Consequently he was convicted and sentenced to simple imprisonment for three months and a fine of Rs.5,000/-.
2. Aggrieved by the above conviction and sentence, he preferred Crl.Appeal No.58/1995 before the Sessions Judge, Palakkad. The Additional Sessions Judge (Adhoc-I) to whom the appeal was made over, by judgment dated 21/3/2002, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.
2. Today when the revision petition came up hearing Adv. Sri. K.P.Balagopal, the learned counsel appearing for the revision petitioner submits that the revision petitioner could not discharge the liability because of financial difficulties and therefore he was constrained to defend the proceedings and that the revision petitioner is now prepared to pay the cheque amount and is not assailing the conviction. The submission is recorded. The learned counsel further sought for leniency in sentence.
3. Having due regard to the facts and circumstances, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till the rising of the court and a fine of Rs.5,000/- with direction to pay Rs.45,000/- as compensation to the first respondent would meet the ends of justice.
In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court and a fine of Rs.5,000/- (five thousand only) with direction to pay Rs.45,000/-(fortyfive thousand only) as compensation to the first respondent. In default of payment of fine and compensation, the revision petitioner shall undergo simple imprisonment for one month and five months respectively. The trial court shall see the execution of sentence and report compliance. The revision petitioner is granted one month time to remit the fine and the compensation.
