The court has the discretion to reduce a sentence based on the period already served by the petitioner.

ORDER

1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. 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 respectfully prayed that this revision petition may kindly be allowed and the orders and judgments impugned dated 30.03.19 passed by learned Spl. Judicial Magistrate (N.I. Act Cases), Chittorgarh and 16.08.21 passed by Session Judge, Chittorgarh, may kindly ordered to be quashed and set aside.

3. The brief facts of this case, as placed before this Court, by the learned counsel for the petitioner are that the complainant- respondent No.1 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 alleging therein that the petitioner issued a post dated 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. Thereafter, the complainant served a legal notice upon the petitioner.

4. 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. were also recorded. After conclusion of the trial, the learned court below vide the impugned judgment dated 16.08.2021 convicted the petitioner for the offence under Section 138 of the Act of 1881 and sentenced him for one year simple imprisonment, alongwith a fine, and in default of payment of fine, he was ordered to undergo further three months simple imprisonment.

5. 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 more than seven months of sentence, as is apparent from the record, therefore, the period of sentence may be reduced to the period already undergone by him.

5.1 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."

6. On the other hand, learned Public Prosecutor as well as learned counsel for the complainant opposes the submissions made on behalf of the petitioner.

7. Heard learned counsel for the parties and, perused the record of the case and the judgment cited at the Bar.

8. 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 seven months of the sentence, out of one year 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's simple imprisonment to the period already undergone by him.

9. 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