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2005 DIGILAW 2923 (RAJ)

Sunil Mahatma v. Bheru Singh

2005-11-09

H.R.PANWAR

body2005
JUDGMENT 1. - This criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) is directed against the judgment and order dated 17.09.2004 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Udaipur (for short 'the appellate Court' hereinafter) in Criminal Appeal No. 34/2004 whereby the appellate Court dismissed the appeal filed by the petitioner against the judgment and order dated 21.10.2003 passed by Chief Judicial Magistrate, Udaipur (for short 'the trial Court' hereinafter) in Criminal Case No. 45/2001 by which the trial Court convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter) and sentenced him to undergo one year simple imprisonment and a fine of Rs. 7,50,000/- in default of payment of fine further to undergo three months simple imprisonment. It was further directed that on depositing the amount of fine, a sum of Rs. 7,00,000/- be paid to the complainant Respondent No. 1 as compensation under Section 357(3) of the Code. Aggrieved by the orders impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the judgment and order of the appellate Court as well as of the trial Court as also record of the trial Court. 3. At the very outset, learned Counsel appearing for the petitioner, submits that the petitioner does not want to challenge his conviction for the offence under Section 138 of the Act. However, learned Counsel has confined his arguments only to the point of quantum of sentence and submits that the petitioner has already suffered imprisonment of more than 11 months and ends of justice would be met if the sentence of imprisonment awarded to the petitioner is reduced. 4. Learned Counsel appearing for the contesting Respondent No. 1 complainant, submits that the petitioner has failed to pay the amount of fine and, therefore, the complainant has been deprived of the compensation amount. 5. I have given my thoughtful consideration to the rival contentions raised by the Counsel for the parties. 6. By an agreement Exhibit P-1, it appears that an amount of Rs. 4,50,000/- alleged to have been advanced to the petitioner. There is nothing on record to show that the petitioner was ever tried or convicted previously. 5. I have given my thoughtful consideration to the rival contentions raised by the Counsel for the parties. 6. By an agreement Exhibit P-1, it appears that an amount of Rs. 4,50,000/- alleged to have been advanced to the petitioner. There is nothing on record to show that the petitioner was ever tried or convicted previously. Learned Counsel for the petitioner submits that it is the first offence committed by the petitioner and the petitioner being respectable businessman; however, due to some financial constraints, unable to pay the amount for which the petitioner has suffered the imprisonment of more than 11 months. 7. Having regard to the peculiar facts and circumstances of the case and the fact that the petitioner has already suffered major portion of sentence awarded, in my view, ends of justice would be met if the substantive sentence of imprisonment is reduced from one year to nine months, and sentence in default of payment of fine is reduced from three months to two months simple imprisonment while maintaining the conviction of the petitioner under Section 138 of the Act and the sentence of fine awarded by the Courts below. 8. Consequently, the revision petition is partly allowed. While maintaining the conviction of petitioner Sunil Mahatma S/o Dharamchand Mahatma, under Section 138 of the Negotiable Instruments Act; 1881 and the sentence of fine awarded by the Courts below, the substantive sentence of imprisonment awarded by the trial Court and affirmed by the appellate Court is reduced from one year to nine months and sentence in default of payment of fine is reduced from three months simple imprisonment to two months simple imprisonment. The petitioner is in jail. Since, he has already served out the substantive sentence as also sentence in default of payment of fine, he be released forthwith, if not required in any other case. The application seeking suspension of sentence stands disposed of.Appeal disposed of. *******