The court can reduce the sentence of imprisonment based on the time already served and the circumstances of the case while maintaining the conviction under Section 138 of the NI Act.

JUDGMENT :

(MANOJ KUMAR GARG, J.)

1. Instant revision petition has been filed by the petitioner challenging the judgment dated 09.11.2022 in criminal appeal No.123/2021 passed by learned Additional Sessions Judge, Sadul Shahar, Sriganganagar (hereinafter referred to as ‘the appellate court’) by which the appellate court dismissed the appeal and upheld the judgment dated 05.05.2012 in criminal case No.166/2004 passed by the learned Judicial Magistrate, First Class Sadul Shahar, Sriganganagar (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 one year S.I. along with fine of Rs.2,80,000/-.

2. Briefly stated, the facts of the case are that the petitioner borrowed Rs.2,50,000/- from the complainant/respondent and assured him to return the same. The petitioner had given a cheque amounting to Rs.2,69,000/- of State Bank of India, Branch Sadul Shahar to the complainant on 15.01.2004. 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 examined and exhibited various documents. Thereafter, statement of the petitioner under Section 313 Cr.P.C. was recorded.

4. After conclusion of the trial, the learned trial court vide judgment and order dated 05.05.2012 convicted the accused-petitioner for offence under Section 138 of NI Act.

5. Aggrieved by the judgment and order dated 05.05.2012, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 09.11.2022. Hence, this revision petition.

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 4 months and 16 days of sentence, out of total sentence of one year S.I., 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 one year simple imprisonment, however, the petitioner has so far undergone a period of about 4 months and 16 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 4 months and 16 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 one year S.I. 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. 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.

10. The accused-petitioner is in custody an