258 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 04.02.2025 SHREE KANT ...PETITIONER V/S RAKESH KUMAR ..RESPONDENT CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Satbir Gill, Advocate for the petitioner.

Mr. Dheeraj Narula, Advocate for the respondent.

****

HARPREET SINGH BRAR , J. (ORAL)

1. This revision petition has been preferred against the judgment dated 27.01.2020 passed by learned Additional Sessions Judge, Sirsa, vide which, judgment of conviction and order on quantum of sentence dated 06.10.2015 passed by learned Judicial Magistrate Ist Class, Ellenabad in a complaint case filed under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’) was partly upheld.

2. The petitioner was sentenced as under:

Offence Sentence

138 NI Act Rigorous Imprisonment for one year with a compensation amount of Rs. 50,000/-

3. The case of the complainant/respondent was that he was having cordial relations with the accused-petitioner. In the month of April, 2013 petitioner took an amount of Rs. 4,50,000/- in cash as loan on interest from the complainant for his urgent requirement. At that time petitioner assured that he will repay the borrowed amount within a period of two months. But despite expiry of period of two months, the petitioner failed to make the payment. It was submitted that petitioner in discharge of his pre-existing liability, issued a cheque bearing no. 466033 dated 28.06.2013 for Rs.4,50,000/- drawn on State Bank of India, Branch Kaluana, Sirsa in favour of the complainant. When this cheque was presented by complainant for encashment through his banker the same was returned unpaid with remarks 'Funds Insufficient' vide return memo dated 01.07.2013. Thereafter, legal notice dated 08.07.2013 was issued to the petitioner calling upon him to make the requisite payment within fifteen days but no payment was made by him. As such, the complaint under Section 138 of the Negotiable Instruments Act was presented by the complainant.

4. The petitioner was convicted and sentenced vide judgment dated 06.10.2015 passed by learned trial Court and sentenced to undergo rigorous imprisonment for two years and he was further directed to pay compensation to the tune of double of the cheque amount. However, the appeal filed against the said judgment was partly allowed by learned Additional Sessions Judge, Sirsa vide judgment dated 27.01.2020 vide which the period of sentence was reduced from two years to one year and the amount of compensation was reduced to Rs. 5,00,000/-

5. Learned counsel for the petitioner contends that he is not assailing the impugned judgment of conviction dated 27.01.2020 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 04 months and 06 days of imprisonment out of total sentence of one year awarded to him.

6. Per contra, learned counsel for the respondent 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 partly 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 whimsi