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2023 DIGILAW 90 (RAJ)

Naresh Kumar v. Gaurav Kumar Saxsena

2023-01-09

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT 1. This criminal revision petition under Section 397 read with Section 401 Cr.P.C. has been preferred claiming the following reliefs: "It is therefore most humbly and respectfully prayed that the revision petition may kindly be allowed and the judgment dated 17.10.2022 passed by learned Additional Session Judge No.03, Bikaner in Criminal Appeal No.109/2019 and judgment dated 21.10.2019 passed by Special Judicial Magistrate (N.I. Act, Cases) No.02, Bikaner in Criminal Case No.21/2016 who whereby the judgment of conviction and sentence passed by learned Appellate Court as well as trial Court may kindly be quashed and set aside and the petitioner may kindly be acquitted from the alleged charges.. 2. The brief facts of this case, as placed before this Court, by the learned counsel for the petitioner are that the complainantrespondent No.1 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 alleging therein that the petitioner issued a cheque towards repayment of the amount borrowed by him from the complainant; when the complainant presented the same for encashment, the said cheque was dishonoured by the concerned Bank due to insufficient fund. Thereafter, the complainant served a legal notice upon the petitioner. 3. The learned court below took cognizance of the matter under Section 138 of the Act of 1881. The petitioner appeared and denied the charge and claimed for trial. During trial, the prosecution witnesses were examined, whereafter, the statement of the petitioner under Section 313 Cr.P.C. was also recorded. After conclusion of the trial, the learned court below vide the impugned judgment dated 17.10.2022 convicted the petitioner for the offence under Section 138 of the Act of 1881 and sentenced him for 1 year and 8 months’ rigorous imprisonment, alongwith a fine, and in default of payment of fine, he was ordered to undergo further three months simple imprisonment. 4. Learned counsel for the petitioner makes a limited prayer while submitting that the petitioner does not challenge the finding of conviction, but since the present petitioner has served 1 year, 5 months and 8 days of sentence, as is apparent from the report furnished by the learned Public Prosecutor, therefore, the period of sentence may be reduced to the period already undergone by him. 5. The report is taken on record. 6. Learned counsel for the petitioner placed reliance on the judgement rendered by this Court in Smt. Mumtaj Bano Vs. 5. The report is taken on record. 6. Learned counsel for the petitioner placed reliance on the judgement rendered by this Court in Smt. Mumtaj Bano Vs. Narendra Bubkiya S.B. Criminal Revision Petition No. 459/2019 decided on 09.08.2019, wherein the following was observed: "It is not disputed that the accused petitioner was sentenced to a period of one year’s simple imprisonment, however, the petitioner has so far undergone a period of more than five months five months in custody out of one year’s simple sentence ... has remained behind the bars for more than five months, it will be just and proper if the sentence awarded by the trial court, which was affirmed by the appellate court, for offence under Section 138 of NI Act is reduced from one year’s simple imprisonment to the period already undergone by the petitioner." 7. On the other hand, learned Public Prosecutor opposes the submissions made on behalf of the petitioner. 8. Heard learned counsel for the parties and, perused the record of the case and the judgment cited at the Bar. 9. This Court looking into the overall facts and circumstances of the case, the precedent law cited in Smt. Mumtaj Bano (supra) and the fact that the petitioner has already served more than one year and five months, out of one year and eight months’ sentence as awarded to him by the learned trial court and affirmed by the learned appellate court, it will be just and proper if the sentence awarded to the petitioner for the offence under Section 138 of the Act of 1881 is reduced from one year and eight months’ rigorous imprisonment to the period already undergone by him. 10. Accordingly, the present petition is partly allowed. While maintaining the petitioner’s conviction for the offence under Section 138 of the Act of 1881, the sentence awarded to him is hereby reduced to the period already undergone. So far as the compensation amount is concerned, the respondent no.1 shall be free to initiate appropriate legal proceedings for recovery of the compensation amount before the learned trial court. The petitioner is in custody and shall be released forthwith, if not required in any other case. All pending applications stand disposed of. The record of the learned court below be sent back forthwith.