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2019 DIGILAW 2902 (RAJ)

Chet Ram v. State, Through PP

2019-11-27

MANOJ KUMAR GARG

body2019
JUDGMENT Manoj Kumar Garg, J. - Instant revision petition has been filed by the petitioner challenging the judgment dated 24.05.2019 passed by learned Sessions Judge, Hanumangarh, District Hanumangarh (hereinafter referred to as 'the appellate court') by which the appellate court dismissed the appeal and upheld the judgment dated 03.02.2018 passed by the learned Additional Judicial Magistrate, Hanumangarh (hereinafter referred to as 'the trial court') whereby, the learned trial court convicted the present petitioner for offence under Section 138 of NI Act and sentenced to undergo six months' simple imprisonment and also ordered to pay a sum of Rs.7,10,000/- as compensation to the respondent No.2- complainant and in default to payment of compensation, the petitioner shall undergo one month's simple imprisonment. 2. Briefly stated the facts of the case are that the complainant filed a complaint under Section 138 of NI Act against the petitioner alleging therein that the petitioner is known to him, therefore he advanced a loan of Rs.5,00,000/- on 05.09.2015 as the petitioner was needed the amount for purchasing as agriculture land. In order to repay the loan amount, the petitioner issued a cheque bearing No.458166 dated 09.03.2015. On presentation, the said cheque was dishonoured by the Bank. The complainant served a legal notice upon the petitioner through his Advocate and demanded the amount of cheque but the petitioner did not pay any amount. 3. The learned court below took cognizance in the matter and ultimately framed charge for offence under Section 138 NI Act against the petitioner. The petitioner denied the charge and claimed for trial. During trial the complainant got himself examined and got exhibited certain documents. Thereafter statement of the petitioner under Section 313 Cr.P.C. was recorded. In defence no evidence, oral as well as documentary, was produced by the petitioner. 4. After conclusion of the trial, the learned trial court vide judgment and order dated 03.02.2018 convicted the accused-petitioner for offence under Section 138 of NI Act. 5. Aggrieved by the judgment and order dated 03.02.2018, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 24.05.2019. Hence, this revision. 6. 5. Aggrieved by the judgment and order dated 03.02.2018, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 24.05.2019. Hence, this revision. 6. At the threshold, learned counsel for the petitioner submits that he does not challenge the finding of conviction but since the accused petitioner is behind the bars since 24.05.2019 and he has already served the sentence of six months awarded to him and presently he is undergoing the sentence of one month awarded in default of payment of fine amount, therefore, it is prayed that the sentence awarded in default of payment of fine may be reduced to the period already undergone by him. 7. On the other hand, the learned Public Prosecutor and learned counsel for the complainant opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused petitioner nor any compassion or sympathy is called for in the said case. 8. Heard the learned counsel for the parties and perused the judgments passed by both the courts below regarding conviction of the accused-petitioner. 9. It is not disputed that the accused petitioner was sentenced to a period of six months' simple imprisonment and he has served the total sentence of six months and presently he is undergoing the sentence of one month awarded in default of payment of fine, so also he suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the facts that the petitioner has served the total sentence of six months and presently he is undergoing the sentence of one month awarded in default of payment of fine, it will be just and proper to reduce the sentence awarded in default of payment of fine to the period already undergone by the petitioner. 10. Accordingly, the revision petition is partly allowed. While maintaining the petitioner's conviction for offence under Section 138 of NI Act, the sentence awarded to him in default of payment of fine is hereby reduced to the period already undergone by him. The petitioner has already served the sentence of six months awarded by the trial court. 10. Accordingly, the revision petition is partly allowed. While maintaining the petitioner's conviction for offence under Section 138 of NI Act, the sentence awarded to him in default of payment of fine is hereby reduced to the period already undergone by him. The petitioner has already served the sentence of six months awarded by the trial court. So far as the compensation amount is concerned, the respondent No.2-complainant shall be free to initiate proceedings for recovery of the compensation amount before the trial court. The accused-petitioner is in custody and shall be released, if not required in any other case.