The court can reduce a sentence to the time already served based on the overall circumstances of the case, even when the conviction is upheld.

ORDER :

MANOJ KUMAR GARG, J.

Instant revision petition has been filed by the petitioner challenging the judgment dated 05.03.2024 passed by learned Special Judge SC/ST (POA), Udaipur, (hereinafter referred to as ‘the appellate court’) by which the appellate court dismissed the appeal and upheld the judgment dated 12.07.2023 passed by the learned Special Judicial Magistrate (NI Act Cases) No.2, Udaipur (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 SI along with fine of Rs.1,00,000/- and in default of payment of fine, to further undergo six months’ SI.

2. Briefly stated, the facts of the case are that the petitioner took a loan of Rs.50,000/- from the complainant/respondent No.2 and in lieu thereof, the petitioner had given a cheque bearing No.740454 of Uco Bank, Bapu Bazar, Udaipur, for a sum of Rs.50,000/- 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 charges and claimed for trial. During trial, the complainant examined himself as witness and got exhibited certain 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 12.07.2023 convicted the accused-petitioner for offence under Section 138 of NI Act.

5. Aggrieved by the judgment and order dated 12.07.2023, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 05.03.2024. 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 more than one months’ of sentence, out of total sentence of one year, therefore, it is prayed that the sentence awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by him.

7. Despite service, no one has appeared on behalf of the respondent No.2-complainant.

8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused petitioner nor any compassion or sympathy is called for in the said case.

9. Heard the learned counsel for the parties and perused the judgments passed by both the courts below regarding conviction of the accused-petitioner.

10. 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 one month, 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 more than one months, it will be just and proper if the sentence awarded by the trial court for offence under Section 138 of NI Act and affirmed by the appellate court is reduced to the period already undergone by him.

11. 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 one month additional imprisonment awarded in default of payment of fine/compensation is also waived. So far as the compensation amount is concerned, the respondent No.2-complainant