Proper sentencing is crucial in cases of dishonoured cheques to give effect to the legislation and deter such offenses.

SURESH KAIT, J.

1. The instant petition being filed under Section 397 Cr. P.C., while challenging the impugned order dated 05.10.2011 passed by learned Additional Sessions Judge, Saket Courts, New Delhi whereby the Criminal Appeal No.108/2010 preferred by petitioner was dismissed.

2. Further, the impugned judgment dated 29.06.02010 passed by learned Additional Chief Metropolitan Magistrate, New Delhi and order on sentence dated 26.07.2010 has also been challenged.

3. The facts in brief are that towards the partial discharge of liability, the petitioner issued the cheque bearing No.173787 dated 31.08.2008 drawn on Canara Bank, East Patel Nagar, New Delhi for an amount of Rs.1,50,000/-in favour of respondent Nos.2 &

3. The said cheque, on presentation was dishonoured on 08.09.2008 by the banker of the petitioner on account of „Insufficient Funds?. The petitioner kept on avoiding the payment of the cheque and ultimately, resulted into issuance of legal demand notice which was served upon the petitioner on 20.10.2008. Since, the legal notice was not complied by the petitioner, respondent Nos.2 & 3 instituted a Criminal Complaint Case No.50/1/2008 under Section 138 Negotiable Instrument Act, 1881 (hereinafter referred as the said Act) against the petitioner before learned Trial Court.

4. Before proceeding further, it would be in place to mention here that since the matter concerning the liability and transactions between the petitioner and respondent Nos.2 & 3 is pending trial, before learned Additional District Judge; Delhi in CS No.145/2010. It is hereby make it clear, this order is not referring to the respective stands and contentions of both the parties. Since, the same are not being looked into and the same is subject matter of learned Civil Court.

5. Finding prima facie case against the petitioner, learned Trial Court issued summons against him vide order dated 04.12.2008.

6. On conclusion of trial, learned Additional Chief Metropolitan Magistrate, New Delhi vide judgment dated 29.06.2010 held that the petitioner is guilty for the offence under Section 138 of the said Act in respect of said cheque for Rs.1,50,000/-. Vide order on sentence dated 26.07.2010 the petitioner was sentenced to undergo imprisonment for one year and fine of Rs.15,000/-with compensation of Rs.2,85,000/-to the complainant. In default of payment of fine, simple imprisonment for 30 days.

7. Being aggrieved from the above judgment and order on sentence respectively, petitioner has preferred Criminal Appeal No.108/2010 before learned Additional Sessions Judge. Vide order dated 05.10.2011 the appeal preferred by the petitioner was dismissed and he was taken into custody.

8. It is how the petitioner has filed instant petition wherein the findings of learned Trial Court as well as Appellate Court have been sought to be reviewed.

9. At this juncture, it would be in place to mention that learned counsel for the petitioner does not dispute the finding of learned Trial Court regarding the conviction which was affirmed by learned Appellate Court. As regards the quantum of sentence, fine and compensation have been agitated before this Court and it is submitted that the petitioner may be released on considering the period that is already undergone, or the remaining imprisonment portion may be modified into fine and compensation. Alternatively, he could be released on good conduct by giving him the benefit as provided in the Probation of offenders Act.

10. Learned counsel for the petitioner has relied upon the provisions contained in Section 357 Cr.P.C. For the convenience same is reproduced as under:-

“357. Order to pay compensation:-

(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied-

(a) In defraying the expenses properly incurred in the prosecution,

(b) In the payment to any person of compen