ORDER :

1. Learned counsel for the petitioner Mr. Hadish Ansari is present.

2. Learned counsel for the State Mr. Jitendra Pandey is also present.

3. The present revision application has been filed against judgment dated 17.01.2012, passed by the learned Sessions Judge, III, Jamshedpur, in Criminal Appeal No. 263 of 2008 by which the criminal appeal filed by the petitioner was dismissed.

The petitioner has been convicted and sentenced vide order dated 12.09.2008 passed by learned Judicial Magistrate, 1st Class, Jamshedpur in complaint case C/1 case no. 468/2003/T.R. No. 683 of 2008 by which the petitioner was found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for one year and was also directed to pay a sum of Rs. 43,000/- to the complainant as compensation.

4. Learned counsel for the petitioner submits that although the complaint case was filed for the offence under Sections 420 IPC and Section 138 of the Negotiable Instruments Act, but ultimately the petitioner was convicted only under Section 138 of the Negotiable Instruments Act. Learned counsel submits that the cheque was presented twice and for the first bouncing, no case was filed, but upon second bouncing, legal notice was sent and the case was filed. He also submits that before the learned trial court, the petitioner had made payment of Rs. 30,000/- which was part amount of the cheque to the complainant.

The learned counsel for the petitioner has made specific prayer that intention to repay the amount is reflected by the very fact that the part of the amount of the cheque was already paid by the petitioner at the stage of trial itself. He submits that so far as the remaining amount is concerned, some more time may be granted by this court. Learned counsel has also submitted that on account of the fact that there was bonafide on the part of the petitioner by making repayment of the cheque amount to the extent of Rs. 30,000/- some lenient view may be taken and sentence be modified.

5. Nobody has appeared on behalf of the opposite party No. 2 in spite of service of notice.

6. Learned counsel appearing on behalf of the State has assisted this court for the purposes of final disposal of the case. Learned counsel for the State also submits that so far as sentence under Section 138 of the Negotiable Instruments Act is concerned, there is no minimum sentence prescribed as such and further there is an option to give imprisonment to the extent of 2 years or with fine which may extend to twice the amount of cheque or with both. The learned counsel submits that accordingly the sentence can be modified such that the complainant is duly compensated for the amount which he has not received during the pendency of the present case.

7. After hearing the learned counsel for the parties and considering the materials available on record, this court finds that the prosecution case, in brief, is that there was a friendly relationship between the complainant and the petitioner and the petitioner approached the complainant for a friendly loan of Rs. 70,000/- for marriage of his daughter. The complainant gave a sum of Rs. 70,000/- to the petitioner and the petitioner handed over a post-dated cheque dated 20.03.03. On 20.03.2003 the complainant deposited the cheque for encashment but it was dishonoured as the account of the petitioner was closed regarding which the complainant was informed vide Cheque return memo dated 25.03.03. The complainant sent a legal notice dated 17.04.03 to the petitioner through registered post with a request to return the sum of Rs. 70,000/- within 15 days. In spite of receiving the notice on 23.04.03 the petitioner did not make payment of the cheque amount. On the basis of complaint, C/1 Case No. 468 of 03 was registered before the court of learned CJM Jamshedpur on 09.05.03.

8. Altogether three witnesses were examined from the side of the complainant. They were C.W. 1 Satyanarayan P