IMPORTANT POINT
The court has the discretion to alter the sentence under Section 138 of the Negotiable Instrument Act based on the circumstances and payment made by the accused.

JUDGMENT :

Present Revision Application is field by the revisionist – accused being aggrieved by the judgment and order passed by the Learned Sessions Judge, City Civil and Session Court, Ahmedabad in Criminal Appeal No. 439 of 2010 on 17.01.2012 confirming the judgment and order of conviction and sentence dated 18.10.2010 passed by the Court of Learned Metropolitan Magistrate, (Negotiable Instrument Act) Court No. 6, Ahmedabad in Criminal Case No. 1683 of 2009 recording the conviction under Section 138 of the Negotiable Instrument Act (for short NI Act) sentencing the petitioner- accused to undergo S.1. for one year and to pay a sum of Rs. 55,000/- to the complainant within a period of 60 days from the date of the judgment, in default of which to undergo four months S.I.

2. The short facts of the case are that petitioner-accused had taken a loan in the sum of Rs. 95,000/- from the respondent no. 1. The said loan amount was to be repaid by the applicant in the 48 installments, each in sum of Rs. 2.573/- per months. The applicant had furnished a bond by issuing two cheques signed by the applicant as a collateral security on 01.07.2008. In view of this, the bank officer had presented the two cheques in the figures of Rs. 55,000/- and Rs. 45,000/- respectively. The said cheques had been found dishonored by the drawers bank i.e. Bank of Baroda having its branch at Bhadra, Ahmedabad. Hence the complainant bank had issued notice upon the applicant to repay the loan amount since the cheques were found dishonored with an endorsement "Opening Balance Insufficient" on 23.05.2009. Two complaints for dishonor of cheque had been file by the complainant in light of the provisions u/s. 138 of Negotiable Instrument Act and hence the complaints came to be filed in the court of Learned Metropolitan Magistrate, (Negotiable Instrument Act) Court No. 6, Ahmedabad on 28.05.2009 and 15.07.2009 respectively. The complaint bearing Cr. Case No. 1683 of 2009 was filed in connection with the cheque bearing cheque no. 972663 in the tune of Rs. 55,000/- whereas, Cr. Case No. 2030 of 2009 was filed in connection with cheque No. 972664 in the tune of Rs. 45,000/-.

2.1 That the trials in both the cases had been commenced in the court of Learned Metropolitan Magistrate, (Negotiable Instrument Act) Court No. 6, Ahmedabad in which the original complainant had laid an evidence and after having heard the parties on the evidences recorded during the trial, the Learned Judge had recorded the conviction U/s. 138 of the Act sentencing the accused to undergo S.1. of one years and to deposit an amount in sum of Rs. 55,000/- a cheque amount within 60 days from the date of the judgment, in default of which to undergo four months S.I. That the applicant had also been found convicted by the trail judge in connection with another offence U/s. 138 of the Negotiable Instrument Act as per which, the applicant had been order to suffer S.1. of one years and to pay Rs. 45,000/- a cheque amount within 60 days from the date of the judgment in default of which to undergo four months S.I.

2.2 Against the said impugned judgments, the applicant had filed two appeals being Cr. Appeal No. 438 of 2009 and 439 of 2010 respectively. The said appeals came to be heard by the Learned Sessions Judge, Ahmedabad who had been pleased to confirm the order passed by the Learned Metropolitan Magistrate in Cr. Case No. 1683 of 2009 while acquitting the applicant for the offence u/s. 138 of Negotiable Instrument Act by setting aside order date 18.10.2010 in Cr. Case No. 2030 of 2009, passed by the learned Metropolitan Magistrate, (Negotiable Instrument Act) Court No. 6, Ahmedabad.

3. Thus, present revision application is filed challenging the judgment and order of conviction and sentence rendered in CR.A No.438 of 2009.

4. Though served, respondent no.1 choose not to contest the present revision application.

5. Learned Advocate for the petitioner places on record the No Due Certificate issued by the State Bank