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2015 DIGILAW 1401 (KER)

Bala Dandapani v. State of Kerala

2015-10-08

B.KEMAL PASHA

body2015
JUDGMENT : B. Kemal Pasha, J. 1. Ext. P4 order, by which the court below has found the petitioner guilty of the offence punishable under S. 138 of the Negotiable Instruments Act, and has imposed a sentence of fine of Rs. 14 lakhs, is under challenge. According to the petitioner, the learned Magistrate has failed to comply with the mandatory provisions contained under S.265B(4) Cr.P.C. as the court has failed to examine the petitioner in camera in the absence of the complainant. 2. On going through Ext. P4 order, it does not say as to whether the petitioner was examined by the court below in camera, in the absence of the complainant in the case. It is a mandatory procedure contemplated under law that in case of plea bargaining the accused shall be examined by the court below in camera, in the absence of the complainant or the de facto complainant. The said provision is incorporated for the absolute satisfaction of the court that in case of plea bargaining there was no compulsion or insistence from the part of the complainant or the de facto complainant as the case may be, on the accused to force a settlement. It is in order to avoid the possibility of any such compulsion or pressure tactics from the part of the complainant or the de facto complainant as the case may be, the said provision has been incorporated. 3. In Girraj Prasad Meena v. State of Rajasthan and others (2013 (4) KLT SN 84 (C. No. 80) SC) it was held by the Apex Court that all the procedures contemplated in Chapter XXI-A of the Cr.P.C. are mandatory in nature and the court has to scrupulously follow all such mandatory provisions contemplated under law for invoking the jurisdiction of the court to entertain a plea bargaining. In such case, when such a mandatory procedure has been contemplated by law, the court below ought to have mentioned specifically the same in the order that such a mandatory procedure was followed. The petitioner herein has been clamoring from the beginning that the court below has failed to observe such a mandatory procedure. Matters being so, Ext. P4 order is bad in law on that aspect alone. 4. This Court has occasion to note down another gross illegality committed by the learned Magistrate in imposing the sentence also. The petitioner herein has been clamoring from the beginning that the court below has failed to observe such a mandatory procedure. Matters being so, Ext. P4 order is bad in law on that aspect alone. 4. This Court has occasion to note down another gross illegality committed by the learned Magistrate in imposing the sentence also. The court below has chosen to impose a sentence of fine of Rs. 14 lakhs on the petitioner. It seems that the court below has imposed the said sentence of fine as compensation to the complainant under S. 357(3) Cr.P.C. Instead of that, the court below ought to have imposed a fine. If the sentence is imposed as a fine, the court below could have ordered total fine amount or a quantity out of it, as compensation to the complainant under S. 357(1) Cr.P.C. When the court below has chosen to impose a sentence of fine, the court below has no power or authority to order compensation under S. 357(3) Cr.P.C. In that respect also, the sentence imposed by the court below is illegal. 5. Consequently, an offence under S. 138 of the N.I. Act is not covered by S. 265E clauses (a) to (c). This is not an offence wherein minimum sentence has been prescribed. In such case, in the case of plea bargaining, the court below ought to have complied with the provisions of S. 265E(d) Cr.P.C., and the court below ought to have imposed one fourth of the sentence that can be imposed. The offence under S. 138 of the N.I. Act is punishable with imprisonment with a term which may extend to 2 years, or with fine, which may extend to twice the amount of cheque. Even in the case of fine, the court below could have imposed only half the amount ordered as fine in the present case. In the matter of sentence, the court below ought to have considered the substantive sentence of imprisonment as well as the fine which could be imposed. In that case the court below ought to have imposed substantive sentence of imprisonment for six months also. Matters being so, there is gross illegality in the procedure followed by the court below, and gross illegality has been crept in Ext. P4 order also. Therefore, Ext. P4 order is liable to be quashed. In the result, this Writ Petition is allowed and Ext. Matters being so, there is gross illegality in the procedure followed by the court below, and gross illegality has been crept in Ext. P4 order also. Therefore, Ext. P4 order is liable to be quashed. In the result, this Writ Petition is allowed and Ext. P4 order stands quashed. The court below is directed to proceed with matter for taking evidence in the case. Being an old matter, the court below shall dispose of the matter, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.