B HARIKRISHNA Vs. MACRO LINKS PRIVATE LIMITED BANGALORE

JUDGEMENT

(1.) THIS petition is filed challenging the adequacy of the fine imposed by the xiii additional chief metropolitan magistrate, Bangalore, in c. c. No. 14102 of 1991.

(2.) THE brief facts of the case are as follows: in a private complaint filed by the petitioner under Section 200 of the Criminal Procedure Code complaining commission of offence under Section 138 of the Negotiable Instruments Act (for short, 'the ni act') by the respondents on the ground that the petitioner had lent a sum of Rs. 50,000/- to the respondents and to discharge the same in part, the respondents had issued two cheques dated 30-6-1990 and 7-7-1990 for Rs. 10,000/- and Rs. 16,501/- respectively. When the said cheques were presented, the same were dishonoured by the bank with an endorsement "refer to drawer". Thereafter, as per the Provisions of the ni Act, notice intimating dishonour of cheques and demanding the money was sent by the petitioner. In spite of complying with the mandatory requirements and waiting for the period as enunciated under Section 138 of the ni Act, as no payments were made, he petitioner filed the private complaint. After taking cognizance of the offence and recording sworn statement, the learned magistrate issued process. The respondents appeared before the learned magistrate and pleaded not guilty. Thereafter, after recording the evidence on behalf of the petitioner and after giving an opportunity to the respondents and hearing their respective arguments, by the judgment dated 23-6-1999, the learned magistrate held that the petitioner has proved that the respondents have committed an offence under Section 138 of the ni act and as such convicted them for the same and sentenced them to pay a fine of Rs. 10,000/- in default to suffer simple imprisonment for three months. Aggrieved by inadequacy of sentence, the petitioner has approached this court in this revision petition.

(3.) SRI ram doraiswamy, learned counsel for the petitioner, contended that the sentence imposed by the trial court is contrary to the Provisions of the Act, that the trial court has imposed sentence which is not only unduly lenient and grossly inadequate, but manifestly illusory one. Elaborating the argument, the learned counsel contended that under Section 138 of the ni Act, the punishment provided for dishonour of cheque is imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. It is contended that, when the law itself provides for maximum heavy sentence, especially keeping in view the aims and objects of the ni act as well as the fact that the amount under the cheques was to the tune of Rs. 26,501/-; whereas the imposition of fine of Rs. 10,000/- that too without even specifying as to whom among the two accused should pay the fine whether jointly or individually and as such the same has resulted in passing of the sentence as mere illusory. It is also contended that, though the imposition of sentence / fine by the court is discretionary; the discretion should have been used judiciously and with due considerations. Having failed to do so the trial court has acted contrary to the true letters and spirit of Section 138 of the ni act and as such the fine has to be enhanced; that the trial court was in error in imposing a fine of Rs. 10,000/- even after holding "inconsistent stand adopted by the accused while recording his plea and statement under Section 313 of the cr. P. c. " which according to the learned counsel is again violative of the spirit of the Provisions and at any rate, it is contended, though the court found both the respondents/accused guilty, imposition of fine without clarifying as to who of the respondents should pay the same is also erroneous and liable to be interfered with.