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2006 DIGILAW 479 (RAJ)

Bhera Ram : Laxman Patel v. Laxman Patel : State of Rajasthan

2006-02-13

H.R.PANWAR

body2006
JUDGMENT 1. - Both these criminal revisions under Section 397/401 Criminal Procedure Code, are directed against the judgment and order dated 5.7.2005 passed by Additional Sessions Judge (Fast Track) No. 2, Jodhpur (for short 'the appellate Court' hereinafter) in Criminal Appeal No. 10 of 2005 whereby the appellate Court partly allowed the appeal filed by accused Laxman Patel against the judgment and order dated 31.1.2004 passed by Additional Chief Judicial Magistrate (Economic Offences), Jodhpur (for short 'the Trial Court' hereinafter) in Criminal Case No. 466 of 2004 convicting the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act of 1881' hereinafter), and instead of sentencing the accused at once to any imprisonment, he was released on probation under Section 4 of the Probation of Offenders Act, 1958 (for short 'the Act' hereinafter) and fine of sentence awarded by the Trial Court was also reduced from Rs. 3 lac to Rs. 2.50 lac, out of which a sum of Rs. 2,40,000/- was directed to be paid to complainant Bhera Ram under Section 5 of the Act. Aggrieved by the judgment and order impugned, the petitioner-complainant Bhera Ram and accused Laxman Patel both have filed separate revision petitions. 2. I have heard learned counsel for the parties. Perused the judgment and order impugned and record of the Trial Court. 3. So far as the revision filed by petitioner-complainant Bhera Ram is concerned, the order releasing the accused on probation is appealable under Section 11 of the Act and as such the order is not revisable. The remedy of appeal is available to the aggrieved person. In the instant case, instead of filing an appeal under Section 11 of the Act, the complainant-petitioner Bhera Ram has filed the instant revision petition. Even on merit, the petitioner-complainant has no case for the reason that the cheque amount in the instant case was Rs. 1,60,000/- and the appellate Court imposed a fine of Rs. 2,50,000/- out of which a sum of Rs. 2,40,000/- was directed to be paid to the petitioner-complainant as compensation under Section 5 of the Act. Thus, in my view, the appellate Court was justified in awarding the compensation of Rs. 2,40,000/- in favour, of petitioner-complainant Bhera Ram in the circumstances therefore, the revision petition filed by complainant Bhera Ram is liable to be dismissed being devoid of merit. 4. Thus, in my view, the appellate Court was justified in awarding the compensation of Rs. 2,40,000/- in favour, of petitioner-complainant Bhera Ram in the circumstances therefore, the revision petition filed by complainant Bhera Ram is liable to be dismissed being devoid of merit. 4. So far as the revision petition filed by accused-petitioner Laxman Patel is concerned, I have carefully gone through the record, more particularly the statements of witnesses. From the evidence on record, it has been proved beyond reasonable doubt that accused-petitioner Laxman Patel in revision petition No. 917 of 2005 issued a cheque for a sum of Rs. 1,60,000/- in favour of complainant Bhera Ram, which on being presented to the bank was dishonoured for want of sufficient fund. A notice demanding cheque amount within the stipulated period was served vide Ex.P/4. Despite service of notice, accused Laxman Patel failed to pay the cheque amount to complainant Bhera Ram. The Trial Court on appreciation of the evidence produced by the parties, came to the conclusion that the offence punishable under Section 138 of the Act of 1881 has been proved against accused Laxman Patel beyond reasonable doubt. On appeal, the appellate Court reappreciated the entire evidence on record and came to the conclusion that the complainant has been able to succeed in proving the case against accused Laxman Patel. Thus, there is a concurrent finding of facts by the Courts below holding accused-petitioner Laxman Patel for the offence under Section 138 of the Act of 1881. 5. In the circumstances therefore, the revision petition filed by accused-petitioner Laxman Patel being devoid of any merit is liable to be dismissed. 6. Consequently, both the revision petitions are dismissed.Revisions dismissed. *******