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2019 DIGILAW 377 (RAJ)

Chunni Lal v. State of Rajasthan

2019-02-01

MANOJ KUMAR GARG

body2019
JUDGMENT Manoj Kumar Garg, J. - Instant revision petition has been filed by the petitioner challenging the judgment dated 15.05.2018 passed by learned Addl. Sessions Judge No.1, Hanumangarh (hereinafter referred to as 'the appellate court') by which the appellate court dismissed the appeal and upheld the judgment dated 25.06.2016 passed by the learned Judicial Magistrate, Pillibanga (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 one year simple imprisonment and also ordered to pay a sum of Rs. 2,50,000/- as compensation to the respondent No.2- complainant. 2. Briefly stated the facts of the case are that on 16.08.2012 the complainant filed a complaint under section 138 of NI Act against the petitioner alleging therein that around 3 months back, the petitioner took a sum of Rs. 2 lacs from him and in lieu of the said amount, the petitioner issued a cheque No.852751. On presentation, the said cheque was dishonoured by the Bank. The complainant served a legal notice dated 25.07.2012 upon the petitoner through his Advocate. 3. The learned court below took cognizance in the matter and ultimately framed charge for offence under section 138 N.I. 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., 1973 was recorded. The petitioner got himself examined in defence. 4. After conclusion of the trial, the learned trial court vide judgment and order dated 25.06.2016 convicted the accused-petitioner for offence under section 138 of NI Act. 5. Aggrieved by the judgment and order dated 25.06.2016, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 15.05.2018. 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 15.05.2018 and out of total sentence the petitioner has served about 8 months and 16 days of sentence and the petitioner is a senior citizen aged about 65 years, therefore, it is prayed that the substantive sentence awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by him. 7. 7. Despite service, no one has appeared on behalf of the respondent No.2-complainant. 8. On the other hand, the learned Public Prosecutor 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. 9. Heard the learned counsel for the parties and perused the judgments passed by both the courts below regarding conviction of the accused-petitioner. 10. It is not disputed that the accused petitioner was sentenced to a period of one year simple imprisonment, however, the petitioner has so far undergone a period of 8 months and 16 days in custody out of one year of total sentence, so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the petitioner is a senior citizen aged about 65 years and he has remained behind the bars for about 8 months and 16 days now, it will be just and proper if the sentence awarded by the trial court for offence under section 138 of NI Act is reduced from one year to the period already undergone by the petitioner. 11. 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 is hereby reduced to the period already undergone by him. 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. 12. The record of trial Court as well as the appellate court be sent back forthwith.