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Rajasthan High Court · body

2007 DIGILAW 1508 (RAJ)

SHARAD KUMAR TIWARI v. LAXMI TIWARI

2007-08-09

G.S.SARRAF

body2007
Judgment G. S. SARRAF, J. ( 1 ) THIS criminal revision petition has been preferred by the accused petitioner against the judgment dated 15. 11. 2006 passed by Special Judge, SC/st (Prevention of Atrocities) Cases, Ajmer in criminal appeal No. 69/2006 against the judgment dated 13. 09. 2005 of Judicial Magistrate, First Class (East), ajmer in criminal case No. 13/2004 whereby the petitioner was convicted under Section 138 of the negotiable Instruments Act (hereinafter referred to as the act) and was sentenced to simple imprisonment for two years and a compensation of Rs. 5 lakhs was awarded to the respondent under Section 357 (3)Cr. P. C. ( 2 ) BRIEF facts giving rise to this revision petition are that the complainant Smt. Laxmi Tiwari filed a complaint against the petitioner wherein it was alleged that the petitioner borrowed a sum of Rs. 4 lakhs from her to purchase a motor vehicle to run it for taxi purpose. The petitioner gave a cheque No. 356824 dated 15. 01. 2004 of Rs. 4 lakhs of Bank of Baroda, J. L. N. Hospital branch, Ajmer of account no. 113533 to repay the above debt. On 15. 01. 2004, the respondent submitted the aforementioned cheque in State Bank of Bikaner and Jaipur, dargah Branch, Ajmer, which was returned to the complainant with the remarks account Closed. After the cheque was dishonoured the respondent through her counsel sent notice to the petitioner by registered post and U. P. C. After the service of the notice, the petitioner sent a reply of the notice through his counsel. Thereafter the respondent filed a complaint against the petitioner and prayed to punish the petitioner and award in her favour double the amount of the cheque amount. After taking cognizance substance of accusation under Section 138 of the Act was stated to the petitioner. The petitioner pleaded not guilty. The respondent examined herself. The petitioner examined himself and produced two other witnesses in defence. Judicial Magistrate, First class (East), Ajmer convicted the petitioner under Section 138 of the Act and sentenced him to simple imprisonment for two years and awarded compensation of Rs. 5 lakhs to the respondent under Section 357 (3) Cr. P. C. The petitioner filed an appeal against the above judgment of conviction but the appeal was dismissed by special Judge, SC/st (Prevention of Atrocities)Cases, Ajmer by the impugned judgment dated 15. 11. 2006. 5 lakhs to the respondent under Section 357 (3) Cr. P. C. The petitioner filed an appeal against the above judgment of conviction but the appeal was dismissed by special Judge, SC/st (Prevention of Atrocities)Cases, Ajmer by the impugned judgment dated 15. 11. 2006. Aggrieved by this judgment the petitioner has filed this revision petition. ( 3 ) HEARED learned counsel for the petitioner and learned counsel for the respondent. ( 4 ) IT has been argued by learned counsel for the petitioner that the petitioner borrowed Rs. 1 lakh from his brother Suresh tiwari, who is the husband of the respondent and gave four blank cheques as security to him. He has further argued that the amount taken by the petitioner was returned by him but the respondent was misusing the cheques which were given to her husband by the petitioner. He has placed reliance on 2006 (2) WLC (SC) Criminal 176. He has also prayed that the petitioner be released on the sentence of imprisonment already undergone by him as the petitioner has been in jail for more than eight and half months. ( 5 ) LEARNED counsel for the respondent has supported the judgments of the two courts below. ( 6 ) THE petitioner Shrad Kumar Tiwari, dw1 admits in his cross examination that he gave the cheque Exhibit P. 1 to repay the debt. There is no merit in the contention that blank cheques were given to the husband of the respondent. I find absolutely no reason to invoke the revisional jurisdiction to interfere with the concurrent findings of the courts below. ( 7 ) AS regards the quantum of punishment, I am of the view that misplaced sympathy cannot have any place in the criminal adjudicatory process. Kerala High Court has discussed this point in 2003 (4) Crimes 329 . In the facts and circumstances of this case, I am satisfied that imposition of a sentence of simple imprisonment for one year instead of two years will eminently advance the interests of justice. ( 8 ) IN the result this revision is allowed in part as under: (a) the conviction of the petitioner under Section 138 of the Act is upheld; (b) compensation of Rs. 5 lakhs awarded to the respondent under Section 357 (3) Cr. ( 8 ) IN the result this revision is allowed in part as under: (a) the conviction of the petitioner under Section 138 of the Act is upheld; (b) compensation of Rs. 5 lakhs awarded to the respondent under Section 357 (3) Cr. P. C. is upheld; (c) the sentence of imprisonment imposed on the petitioner is reduced to simple imprisonment for one year. The revision petition stands disposed of as above. Revision disposed of.