Purusottam vs B.B.Sharma
2022 Latest Caselaw 4159 Chatt

                                                                             1


                                                                        NAFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRR No. 331 of 2010
   • Purusottam, S/o Late Saraju Prasad Aged 50 years, R/o 288/B Risali
     Sector Bhilainagar Tahsil and Distt. Durg(CG) Office Address. P.No.142686.
     Technician E/B A. Deeptt. D. N. W. Bhilai Steel Plant Bhilai Tah. & Distt.
     Durg(CG)
                                                                 ---- Applicant
                                    Versus
   • B.B.Sharma S/o R. R. Sharma, aged about 45 years R/o Ghasidas Nagar
     near Bholu Pan Thela Nandini Road, Than Jamul Bhilai, Tah. & Distt.
     Durg(CG)
                                                              ---- Respondent

____________________________________________________________ For Applicant : Shri Arvind Dubey, Advocate For Respondent : None.

____________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput

ORDER ON BOARD

01.07.2022

1)This Criminal Revision has been filed being aggrieved by the impugned

judgment dated 14.07.2010 passed by the learned Additional Sessions

Judge, Durg(C.G.) {for short ASJ} in Criminal Appeal No.60/2009,

whereby the learned ASJ has upheld the judgment of conviction and

award of sentence dated 02.09.2009 passed by Judicial Magistrate First

Class, Durg (C.G.) {for short JMFC} in Criminal Case No.04/2009. The

applicant has preferred this revision under Section 397/401 Code of

Criminal Procedure, 1973 {for short Cr.P.C}.

2) Prosecution case in brief, is that the applicant had taken Rs.21,200/- as

loan on 18.01.2007 and issued post dated cheque bearing No.638785 of

State Bank of India, Bhilai in favour of the respondent/complainant

amounting of Rs.21,200/- when the complainant presented the cheque for

encashment on 11.06.2007, it was returned by the Bank with an

endorsement that no sufficient fund was available in the account of

applicant. The complainant issued a notice by the registered mode

through his advocate to the applicant on 15.06.2007 and demanded the

said amount within 15 days from the receipt of this notice, but he did not

return the said amount to the applicant and ultimately within a stipulated

period the complainant (non-applicant) filed a complaint case against the

applicant before the JMFC, Durg.

3) The applicant submitted his written reply before the JMFC, Durg, after

considering the documents submitted by the parties, the learned JMFC

found the applicant herein is guilty of offence under Section 138 of the

Negotiable instruments Act and sentenced him to undergo 6 months SI

and fine of Rs.2000/-, in default of payment of fine 2 months additional

simple imprisonment was imposed.

4) The applicant has filed an appeal No.60/2009 before the ASJ, Durg

challenged the order of JMFC Durg. After hearing the parties, the learned

ASJ has dismissed the appeal and confirmed the order of JMFC.

5) Against the said conviction order the applicant has preferred a revision

under Section 397/401 of CrPC before this Court and on 19.07.2010 bail

has been granted to the applicant.

6) Learned counsel appearing for the applicant submits that the conviction

of the applicant is bad in law, both the Courts below have not properly

appreciated the evidence on record and came to a conclusion that

applicant has committed offence under Section 138 of the Act of 1881.

Even if the entire case is accepted as it is, the offence under Section 138

of the Act of 1881 is not made out, therefore, the revision may be allowed

and the applicant may be acquitted from the charges. Alternatively it is

argued that the offence was committed in the year 2007 now about 15

years has been passed therefore, it is not appropriate to send back the

jail at this stage. This Court was pleased to suspend the sentence of the

applicant and granted bail to applicant vide its order dated 19.07.2010

and since then the applicant has not misused the liberty granted to him.

The applicant was aged about 45 years at the time of conviction of

offence and now he is about 60 years, therefore, looking to age of

applicant, he prays that the sentence may kindly be reduced to already

served/undergone by the applicant by inhancing the fine amount.

7)According to the report of Registry the notice issued to respondent has

already been served but none appeared on behalf of respondent.

8) Heard counsel for the applicant and perused the material available on

record, perused the judgments passed by the Courts below and

considering the oral and documentary evidence with utmost

circumspection and meticulously.

9) Both the Courts below after appreciation of evidence came to a

conclusion that the applicant has committed the offence under Section

138 of Act of 1881 and after relying upon the evidence oral and

documentary brought before it found that the applicant is guilty for offence

under Section 138 of the Act of 1881 and punished him for SI for 6

months.

10) It is well settled principle of law in revisional jurisdiction, the Court would

not deeply analysis the evidence documentary or oral and normally it

should not substitute its own finding replacing the well merited findings

arrived out of the Courts below. During course of arguments, the learned

counsel appearing for the applicant could not brought to the notice of this

Court any perversity or illegality in findings recorded by the Courts below

to enable this Court to arrive at a different findings which have already

been arrived at.

11)Thus, in view of what has been stated above, this Court does not find

even any illegality or perversity in the orders passed by the Courts below.

Hence, the conviction of the applicant under section 138 of the

Negotiable instrument Act, 1881 is confirmed. Now, I shall consider

whether under the facts & circumstances, the sentence of 6 months

awarded to the applicant can be reduced to sentence already

served/undergone by the applicant. It is apparent from record that the

offence was committed in the year 2007. The Criminal Appeal against the

conviction and award of sentence was filed in the year 2009. The present

revision was filed on 15.07.2010 and the sentence of applicant was

suspended on 19.07.2010. Nothing is brought to the notice of the Court to

show that the applicant has misused the liberty granted to him. The

applicant has already served/undergone about 5 days of sentence

awarded to him. Therefore, sending applicant back to prison after about

15 years may not be appropriate. Therefore, while maintaining the

conviction of the applicant under section 138 of N.I. Act, 1881, the

sentence of 6 months imposed upon the applicant is reduced to sentence

already served/undergone. A fine of Rs.5000/- is imposed upon the

applicant out of which Rs.3000/- shall be given to the respondent as

compensation. If the fine amount is not paid/deposited within 3 months

from today, the applicant shall undergo additional simple imprisonment of

15 days.

12)The bail bond of the applicant is discharged. Records of the Courts

below be sent back along with copy of this order forthwith for information

and necessary compliance.

13) No order as to cost.

Sd/-

(Sachin Singh Rajput) Judge parul