Punjab-Haryana High Court
Joginder Singh vs Nirbhai Singh on 14 March, 2024
Neutral Citation No:=2024:PHHC:037288
2024:PHHC:037288
241 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-2852-2017 (O & M)
Date of decision: 14.03.2024
JOGINDER SINGH
...PETITIONER
V/S
NIRBHAI SINGH
...RESPONDENT
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Ranjit Saini, Advocate
for the petitioner.
Mr. M.S. Sidhu, Advocate for
Mr. G.S. Virk, Advocate for the respondent.
Mr. Sandeep Kumar, DAG, Punjab.
****
HARPREET SINGH BRAR J. (ORAL)
This revision has been preferred against the judgment dated
24.07.2017, passed by learned Additional Sessions Judge, Ludhiana, vide
which, judgment of conviction and order of quantum of sentence dated
15.04.2015, passed by Judicial Magistrate Ist Class, Ludhiana in complaint
bearing No.COMA-35385 of 2013 dated 27.08.2007 filed under Section 138 of
Negotiable Instruments Act (hereinafter referred to as 'NI Act'), has been
upheld. The petitioner was sentenced as under:
Offence Sentence
Section 138 NI Act RI 01 year and a fine of Rs.2,000/-,
in default of which SI of one month.
2. The brief facts of the case are that in order to arrange immigration
of his brother Rajinder Singh, the complainant had paid an amount of
Rs.4,00,000/- to the petitioner with a stipulation that Rs.2,00,000/- will be
given at the time of grant of VISA. When the petitioner failed to arrange VISA
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for the brother of the complainant, the complainant approached the petitioner
accompanied by Panchayat members and in order to discharge his enforceable
liability, the petitioner issued a cheque bearing No.801428 dated 13.06.2007,
drawn on Central Co-operative Bank, Pakhowal Branch, Ludhiana. When the
said cheque was presented for encashment, the same was dishonoured by the
bankers on the remarks "Account Closed", vide bank memo dated 05.07.2007.
Upon receiving the bank memo, the complainant through his counsel, got
issued a legal notice dated 26.07.2007 to the petitioner but despite the receipt
of the same, he failed to make the payment of cheque amount within a statutory
period. Hence, the present complaint was registered.
3. The petitioner was convicted vide judgement dated 15.04.2015, by
the learned trial Court, which has also been upheld by lower Appellate Court
vide judgment dated 24.07.2017.
4. Learned counsel for the petitioner contends that he is not assailing
the impugned judgment of conviction dated 15.04.2015 on merits and restricts
his prayer to modification of the order of quantum of sentence to that of the
sentence already undergone by the petitioner, as he has already undergone a
total custody period of 01 month and 27 days and is not involved in any other
criminal activity.
5. Per contra, learned State counsel opposes the prayer of the
petitioner as the 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 Appellant Court and as such, he does not deserve
any leniency.
6. I have heard learned counsel for the parties and perused the record
with their able assistance.
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7. In Deo Narain Mandal v. State 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, proper sentence
should be awarded bearing in mind the principle of proportionality to ensure
the sentence is neither excessively harsh nor does it come across as lenient.
Further, a two Judge Bench of the Hon'ble Supreme Court in Ravada Sasikala
v. State of AP AIR 2017 SC 1166, has reiterated that the imposition of
sentence also serves a social purpose as it acts as a deterrent, by making the
accused realise the damage caused not only to the victim but also to the society
at large. The law in this regard is well settled that opportunities of reformation
must be granted and such discretion is to be exercised by evaluating all
attending circumstances of each case, by noticing the nature of the crime, the
manner, in which the crime was committed and the conduct of the accused to
strike a balance between the efficacy of law and the chances of reformation of
the accused.
8. A perusal of the judgment of conviction passed by the learned trial
Court indicates no perversity in its findings and the same is based on correct
appreciation of evidence available on record. Learned counsel for the petitioner
has not assailed the judgment of conviction on merits, rather he has restricted
his prayer only qua quantum of sentence.
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9. The complaint in the present case was lodged on 27.08.2007 and
the petitioner has been suffering the agony of protracted trial since the last 17
years. Since his conviction, the petitioner has grown into a law-abiding citizen
and desires to live a peaceful life. As per his custody certificate, he is not
involved in any other case and has undergone actual sentence of 01 month and
23 days out of total sentence of 01 year, in the instant case.
10. Accordingly, this Court is of the opinion that it would be in the
interest of justice, if the sentence awarded to the petitioner is reduced to the
period already undergone by him.
11. Consequently, the present appeal is disposed of in the following
terms:-
(i) The judgment dated 24.07.2017, passed by the learned
Additional Sessions Judge, Ludhiana, affirming the judgment of
conviction is upheld, however, the order of sentence dated
15.04.2015 is modified to the extent that the sentence of rigorous
imprisonment for 01 year, along with default mechanism, awarded
to the petitioner, is reduced to the period of sentence already
undergone by him.
(ii) The sentence of fine of an amount of Rs.2,000/- imposed
upon the petitioner by the trial Court is increased to Rs.10,000/-.
The petitioner is directed to deposit the amount of fine, in the trial
Court, within a period of one month from the date of receipt of
certified copy of this order and in case of default of payment of
fine, the petitioner shall be liable to be taken into custody and
made to undergo rigorous imprisonment for one month.
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12. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(HARPREET SINGH BRAR)
March 14, 2024 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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