225 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 10.01.2025 NARENDER KUMAR ...PETITIONER V/S JAI PARKASH ...RESPONDENT CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Bhupinder Ghai, Advocate for the petitioner.

Ms. Parul Sharma, Advocate for Mr. Tarun Yadav, Advocate for the respondent.

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HARPREET SINGH BRAR, J. (ORAL)

1. This revision petition has been preferred against the judgment dated 22.01.2015 passed by learned Additional Sessions Judge, Gurgaon, vide which, judgment of conviction dated 15.05.2024 and order on quantum of sentence dated 19.05.2014 passed by learned Judicial Magistrate Ist Class, Gurgaon in a complaint case filed under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’) have been upheld.

2. The petitioner was sentenced as under:

3. Brief facts of the case are that petitioner/accused had taken a loan of Rs.5,00,000/- from the complainant and towards the refund of the same accused has issued cheque no.395803 dated 28.02.2013 for Rs.5,00,000/- (Five lacs only) in favour of complainant. The said cheque was drawn upon State Bank of India, Paschim Vihar, New Delhi. The complainant presented the said cheque for collection through his banker State Bank of India, Manesar Gurgaon but the said cheque was returned as unpaid due to “Funds Insufficient” vide return memo dated 22.04.2013 calling upon him to make payment of the said amount within 15 days from the date of receipt of the notice. Despite receipt of the said notice, the accused did not make the payment of cheque in question.

Hence, the present complaint.

4. The petitioner was convicted and sentenced vide judgment dated 15.05.2014 and order of sentence dated 19.05.2014 passed by learned trial Court, which have also been upheld by learned lower Appellate Court vide judgment dated 22.01.2015.

5. Learned counsel for the petitioner contends that the petitioner has been convicted by learned trial Court and sentenced to undergo a period of rigorous imprisonment for a period of six months and he was also directed to pay compensation of Rs.7,50,000/- to the complainant. The petitioner has already given an amount of Rs.1,00,000/- to the respondent and an amount of Rs.2,00,000/- has been deposited by the petitioner before the Registry of this Court and the petitioner further undertakes to pay the remaining amount of Rs.4,50,000/-, within a period of 04 months. He is not assailing the impugned judgment of conviction dated 15.05.2014 on merits and restricts his prayer to modification of the order on quantum of sentence to that of the sentence already undergone by the petitioner. Petitioner has undergone a total period of

10 days and he is not involved in any other case.

6. Per contra, learned counsel for the respondent opposes the prayer of the petitioner on the ground that the petitioner has not paid the compensation amount to him and learned trial Court has passed a well-reasoned judgment based on correct appreciation of evidence available on record, which has also been upheld by the learned lower Appellate Court and as such, he does not deserve any leniency.

7. I have heard learned counsel for the parties and perused the record with their able assistance.

8. In Deo Narain Mandal v. State of UP (2004) 7 SCC 257, a Three Judge Bench of the Hon'ble Supreme Court has opined that awarding of sentence is not a mere formality in criminal cases. When a minimum and maximum term is prescribed by the statute with regard to the period of sentence, a discretionary element is vested in the Court. Background of each case, which includes factors like gravity of the offence, manner in which, the offence is committed, age of the accused, should be considered while determining the quantum of sentence and this discretion is not to be used arbitrarily or whimsically. After assessing all relevant factors,