2020 (12) TMI 631 - HC - Indian Laws

Dishonor of Cheque - acquittal of the accused - prayer for reduction in the quantum of sentence - whether the petitioner is entitled to reduction of his sentence? HELD THAT - Sentencing is primarily a matter of discretion as there are no statutory provisions governing the same. Even guidelines have not been laid down to assist the Courts in this matter. In the STATE OF HIMACHAL PRADESH VERSUS NIRMALA DEVI 2017 (4) TMI 1524 - SUPREME COURT , the Supreme Court has considered the issue of sentencing in detail and has crystallized certain principles - From the authoritative pronouncement, it is evident that the sentence imposed must be commensurate with the crime committed and in accordance with jurisprudential justification such as deterrence, retribution or restoration. Mitigating circumstances as well as aggravating circumstances should also be kept in mind. The concern of the Legislature is obvious. Provisions inserted for inculcating greater faith in banking transactions needed more teeth so that cases involving dishonour of cheques reduced - It is, thus, apparent that deterrence and restoration are the principles to be kept in mind for sentencing. While imposing a sentence under Section 138 of the Act, the Court must be alive to the concern of the Legislature in inserting Chapter XVII in the Act and then amending the provisions thereof to make the same more stringent as well as the jurisprudential principles of deterrence and restoration and that the offence is quasi criminal in nature - Maximum sentence of rigorous imprisonment for two years has been imposed on the ground that the offence is a socio economic offence. No other consideration has weighed with the trial. Keeping in view the principle of restoration, compensation of payment of the cheque amount along with interest @ 9% per annum from the date of issuance of cheque till the date of the judgment has been awarded. The award of compensation is justified and reflects a judicious exercise of mind - Thus, the revision petition is dismissed and conviction is maintained. However, the sentence is reduced to RI for a period of one year and six months along with payment of compensation as awarded by the trial Court.

Summary

Issues:
- Reduction of quantum of sentence in a cheque bounce case under Section 138 of the Negotiable Instruments Act, 1881.

Analysis:
The judgment involves a revision petition by the accused, who issued a dishonored cheque to the complainant, leading to a complaint under Section 138 of the Act. Initially acquitted, the petitioner was later convicted and sentenced to two years of rigorous imprisonment, along with compensation and interest. The petitioner sought leniency due to being a poor person and undergoing a protracted trial. The petitioner's counsel requested a reduction in the sentence based on specific single Bench judgments. The complainant's counsel opposed any leniency, emphasizing the seriousness of the offense. The State counsel provided a custody certificate showing the petitioner had already served a significant portion of the sentence.

The central issue for adjudication was whether the petitioner was entitled to a reduction in the sentence. The Court acknowledged its revisional powers to alter the sentence under Section 401(1) of the Cr.P.C. The petitioner's counsel relied on previous judgments citing sympathetic considerations for reducing sentences. The Court deliberated on the role of sympathetic considerations in sentencing, highlighting the absence of statutory guidelines and the discretionary nature of sentencing.

The Court referenced the Supreme Court's principles on sentencing, emphasizing deterrence, retribution, and restoration as justifications for punishment. The legislative intent behind the amendments to the Act aimed at expediting trials and imposing deterrent sentences in cheque bounce cases. The Court noted the quasi-criminal nature of the offense under Section 138, which is compoundable, allowing settlement between the parties.

Considering the principles of deterrence and restoration, as well as the mitigating circumstances presented, the Court found the maximum sentence imposed to be arbitrary. While upholding the conviction, the Court reduced the sentence to one year and six months of rigorous imprisonment, along with maintaining the compensation awarded by the trial Court. The judgment balanced the seriousness of the offense with the mitigating factors presented by the petitioner's counsel, ultimately resulting in a reduced sentence but upholding the conviction.