268 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 28.01.2025 KAILASH CHAND ...PETITIONER V/S SHEELA DEVI AND ANOTHER ..RESPONDENTS CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Ashish Grewal, Advocate for the petitioner.

Mr. Ramesh Kumar Ambavta, AAG Haryana.

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HARPREET SINGH BRAR , J. (ORAL)

1. This revision petition has been preferred against the judgment dated 01.09.2023 passed by learned Additional Sessions Judge, Narnaul, vide which, judgment of conviction and order on quantum of sentence dated 03.12.2019 passed by learned Judicial Magistrate Ist Class, Narnaul 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:

Offence Sentence

138 NI Act Simple Imprisonment for one year with a compensation of Rs. 25,000/-

3. Brief facts of the present case are that the present complaint has been filed by the complainant with the allegations inter-alia that the accused took a loan of Rs.4,00,000/- for his business and home expenses from the complainant. At the time of taking loan it was agreed that the whole amount of the loan shall be paid within short period of time. The accused failed to repay the borrowed amount despite several requests for repayment from the complainant. Thereafter the accused-petitioner issued one cheque bearing no.000014 dated 22.01.2018 of Andhra Bank Branch opposite Panchayat Bhawan, Narnaul, District Mahendergarh against his account No.1895101 0049501. The petitioner told the complainant that he will repay the amount within short time. In case he failed to make the payment the complainant can produce the cheque in the bank for collection. The cheque was duly signed by the accused-petitioner and he assured that he will have sufficient amount in his account for the repayment. That the accused failed to repay the amount as promised and thereupon the cheque No.000014 dated 22.01.2018 was presented in the complainant's Sarva Haryana Gramin Bank, Branch Narnaul, Mohindergarh, Haryana for collection. The cheque was returned unpaid on the ground of "funds insufficient". Return memo dated 21.03.2018 was issued. Thereafter, the complainant informed the accused about the dishonour of above said cheque. Then due intimation and notice was given to the accused by the complainant through a legal notice on 05.04.2018. But the accused-petitioner neither replied nor made the payment of the cheque amount. Hence, the said complaint.

4. The petitioner was convicted and sentenced vide judgment dated 03.12.2019 passed by learned trial Court, which has also been upheld by learned lower Appellate Court vide judgment dated 01.09.2023.

5. Learned counsel for the petitioner contends that he is not assailing the impugned judgment of conviction dated 01.09.2023 on merits and restricts his prayer to modification of the order on quantum of sentence dated 03.12.2019 to that of the sentence already undergone by the petitioner. Petitioner has undergone a total period of 04 months and 03 days of imprisonment out of total sentence of one year awarded to him.

6. Per contra, learned State counsel opposes the prayer of the petitioner on the ground that 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 t