The court can reduce the sentence of imprisonment based on the time already served and overall circumstances 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 22.09.2023 in criminal appeal No.276/2022 passed by learned Additional District Judge No.4, Jodhpur Metropolitan (hereinafter referred to as ‘the appellate court’) by which the appellate court dismissed the appeal and upheld the judgment dated 08.07.2022 in criminal original case No.786/2019 passed by the learned Special Metropolitan Magistrate, (NI Act Cases) No.8, Jodhpur Metropolitan (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.80,000/-.

2. Briefly stated, the facts of the case are that the petitioner purchased a stone cutting machine for Rs.2,60,000/- from the complainant/respondent and in return gave him five cheques. He presented one of the cheques at State Bank of India, Branch Basni Industrial Area on 21.02.2016, but the said cheque was returned as dishonoured by the Bank on 23.02.2016. 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 08.07.2022 convicted the accused-petitioner for offence under Section 138 of NI Act.

5. Aggrieved by the judgment and order dated 08.07.2022, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 22.09.2023. 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 3 months 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 3 months 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 3 months, 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 and shall be released forthwith, if not required in any other case.

11. Pending applications, if any, are disposed of.

12. Record of the Courts below be sent back.