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2013 DIGILAW 172 (GUJ)

Omprakash Shankerlal Gupta v. State of Gujarat

2013-03-21

A.J.DESAI

body2013
JUDGMENT : A.J. DESAI, J. 1. By way of present applications under Section 397 read with Section 401 of Code of Criminal Procedure 1973 original complainant has challenged the adequacy of sentence imposed by learned Additional Senior Civil Judge and Judicial Magistrate First Class, Viramgam by judgments and order dated 5th April 2008 and 3rd August 2007 in Criminal Case No. 482 of 2003 and 481 of 2003 respectively. 2. The respondent accused has been convicted for the offence under Section 138 of the Negotiable Instruments Act and has been sentenced for three months and imposed a fine of Rs. 5000/- in default, to undergo further simple imprisonment for 15 days in Criminal Case No. 482 of 2003 and has been similarly convicted in Criminal Case No. 481 of 2003 for the offence under Section 138 of the Negotiable Instruments Act and has been sentenced for 6 months and also directed the respondent-accused to pay an amount of Rs. 40000/- to the petitioner and in default thereof to undergo rigorous imprisonment for one month. Brief facts emerge from the record are as under: The present petitioner filed two cases being Criminal Case No. 482 of 2003 and 481 of 2003 in the Court of learned Additional Senior Civil Judge, Viramgam under the provisions of Section 138 of Negotiable Instruments Act against the present respondent accused alleging that cheque issued by the respondent accused of Rs. 40000/- in the name of the complainant returned from the bank with an endorsement of the bank "having insufficient balance." After following the procedure prescribed in the Negotiable Instruments Act, the complainant lodged the aforesaid case. Similarly, in Criminal Case No. 482 of 2003, a cheque issued by the accused of Rs. 35000/- in the name of the complainant was returned from the bank with an endorsement of the bank "having no sufficient balance in the account." The complainant was able to prove his case and therefore, the respondent-accused was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentence of 6 months as stated in the judgment by order dated 3rd August 2007 has been imposed. 3. In Criminal Case No. 482 of 2003 the case was proved against the respondent accused and he was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced for three months and with fine of Rs. 3. In Criminal Case No. 482 of 2003 the case was proved against the respondent accused and he was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced for three months and with fine of Rs. 5000/- as stated as above. 4. Having been aggrieved by the inadequacy of sentence the present Criminal Revision Applications have been preferred. I have heard learned advocate Mr. Dhotre for the applicant. He submitted that the respondent accused had not paid compensation of Rs. 40000/- which has been awarded by the learned Additional Senior Civil Judge and sentence of six month is not sufficient in the facts and circumstance of the case. Similarly he has also challenged adequacy of the sentence imposed in Criminal Case No. 482 of 2003 and submitted that considering the facts and circumstances of the case, the trial Court has not awarded sufficient sentence to the accused. 5. On the other hand, Mr. Mousam Yagnik learned advocate appearing for the respondent accused submitted that the amounts involved are Rs. 40,000/- and Rs. 35,000/- respectively and the respondent accused was unable to pay the same which was borrowed from the complainant. He further submitted that accused was arrested on 16.01.2008 and after having undergone the sentence in both the cases, he has been released from jail on 06.12.2008. In support of his submission today he has shown a certificate issued by Deputy Superintendent, Ahmedabad Central Jail pointing out the date i.e 06.12.2008 on which the respondent was released. The respondent accused has undergone sentence and he has been released on 06.12.2008. A xerox copy of the said certificate is placed of record today and it has been taken on record. 6. I have heard learned advocates for the parties. From the record it is found that the total amount involved in the present case is Rs. 75000. Since the respondent accused could not pay the amount in question, including the amount of compensation, he has undergone the sentence awarded by the trial Court and he remained behind the bar from 16.01.2008 to 06.12.2008. If the sentence is calculated in two different cases, he has already undergone sentences according to the order passed by the trial court. In my view, the sentence imposed by the trial court is just and adequate and this Court does not find any reason to interfere with the same. If the sentence is calculated in two different cases, he has already undergone sentences according to the order passed by the trial court. In my view, the sentence imposed by the trial court is just and adequate and this Court does not find any reason to interfere with the same. The Criminal Revision Applications are, therefore, dismissed. Rule is discharged. Petition Allowed.