The court can reduce a sentence based on the time already served and the circumstances surrounding the case.

JUDGMENT :

Manoj Kumar Garg, J.

1. Instant revision petition has been filed by the petitioner challenging the judgment dated 05.03.2020 passed by learned Additional Sessions Judge No. 3, Chittorgarh (hereinafter referred to as 'the appellate court') by which the appellate court dismissed the appeal and upheld the judgment dated 15.11.2017 passed by the learned Special Judicial Magistrate (NI Act Cases), Chittorgarh (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 him to undergo six months SI along with fine of Rs.90,000/- and in default of payment of fine, to further undergo one month SI.

2. Briefly stated, the facts of the case are that the petitioner took a loan of Rs.75,000/- from the complainant/respondent and in lieu thereof, the petitioner had given a cheque bearing No. 054094 of Axis Bank, Branch Chittorgarh to the complainant. On presentation, the said cheque was returned as dishonoured by the Bank. The complainant served a legal notice upon the petitioner through his advocate and demanded the amount of cheque but the petitioner did not pay any amount to the complainant.

3. On the basis of the above complaint, the learned trial court took cognizance in the matter and ultimately framed charge for offence under Section 138 NI 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. was recorded. In defence no evidence, oral or documentary, was produced by the petitioner.

4. After conclusion of the trial, the learned trial court vide judgment and order dated 15.11.2017 convicted the accused-petitioner for offence under Section 138 of NI Act.

5. Aggrieved by the judgment and order dated 15.11.2017, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 05.03.2020. Hence, this revision.

6. At the threshold, learned counsel for the petitioner submits that he does not challenge the finding of conviction but since the accused petitioner has served about three months and nine days of sentence, out of total sentence of six months, 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. Heard the learned counsel for the petitioner and perused the judgments passed by both the courts below regarding conviction of the accused-petitioner.

8. It is not disputed that the accused petitioner was sentenced to a period of six months simple imprisonment, however, the petitioner has so far undergone a period of three months and nine 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 he has remained behind the bars for about three months and nine days, 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 six months to the period already undergone by the petitioner.

9. 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. The sentence of three months additional imprisonment awarded in default of payment of fine/compensation is also waived. So far as the compensation amount is concerned, the respondent-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 forthwith, if not required in any other case.

10. Application for suspension of sentence is also decided.