Punjab-Haryana High Court
Avtar Singh vs Shriram Transport Finance Company ... on 15 March, 2024
Neutral Citation No:=2024:PHHC:038027
2024:PHHC:038027
221 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-2394-2023 (O & M)
Date of decision: 15.03.2024
AVTAR SINGH
...PETITIONER
V/S
SHRIRAM TRANSPORT FINANCE COMPANY LIMITED
...RESPONDENT
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. L.S. Sidhu, Advocate for the petitioner.
Mr. Nilesh Bhardwaj, Advocate for the respondent.
Mr. Vikas Bhardwaj, AAG, Haryana.
****
HARPREET SINGH BRAR J. (ORAL)
This revision has been preferred against the judgment dated
01.09.2023 passed by learned Additional Sessions Judge, Sirsa, vide which,
judgment of conviction and order of quantum of sentence dated 06.01.2018
passed by learned Chief Judicial Magistrate, Sirsa, in complaint bearing No.
NACT-81 of 2014 filed under Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as the 'NI Act'), has been upheld. The petitioner was
sentenced as under:
Offence Sentence
Section 138 NI Act RI 01 year and a compensation of
Rs.8,65,000/- to be paid within two
months of passing of judgment.
2. The brief facts of the case are that the respondent/complainant is a
private limited company under provisions of Indian Companies Act. The
respondent/complainant is engaged in the business of making auto finances etc.
The petitioner availed a vehicle loan of ₹4,00,000/-, from the
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respondent/complainant vide agreement no. HISAR0107130005 dated
14.07.2011, which was payable in monthly installments and petitioner
purchased a vehicle Tata LPT-2515 bearing registration No. HR-39/9589 with
financed amount. It has been further averred that the petitioner failed to repay
this amount to the respondent/complainant in stipulated installments, as such, a
sum of ₹8,65,000/-, as on 12.12.2013, was due against the petitioner of
respondent-company. The petitioner, in discharge of his pre-existing liability,
issued cheque bearing No.060013 dated 13.12.2013 amounting to 8,65,000/-
(hereinafter referred to cheque in question) drawn at Axis Ban, Sirsa Branch
out of his bank account No.911010033071303. The petitioner assured the
respondent that the said cheque shall be honoured by the banker on
presentation. The respondent/complainant presented the cheque in question in
ICICI Bank Ltd., Sirsa for its encashment and in turn, the banker of
respondent/complainant sent the cheque in question to the banker of petitioner
for clearance but the banker of petitioner returned the said cheque as unpaid
with cheque return memo dated 19.12.2013 with remarks "Account Closed". It
seems that at the time of issuance of cheque in question, the petitioner was full
and complete knowledge that his account has already been closed, but in spite
of that, the petitioner issued the cheque in question to the
respondent/complainant. The respondent/complainant got issued a legal notice
dated 04.01.2014 through Shri JBL Garg, Advocate, Sirsa under Section 138 of
the NI Act, demanding the above said amount but the petitioner did not make
the payment of dishonoured cheque to the complainant. Hence, the present
complaint.
3. The petitioner was convicted vide judgement dated 06.01.2018, by
the learned trial Court, which has also been upheld by lower Appellate Court
vide judgment dated 01.09.2023.
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4. Learned counsel for the petitioner contends that he is not assailing
the impugned judgment of conviction dated 06.01.2018 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
period of 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.
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
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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. Moreover, 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.
9. The complaint in the present case was lodged on 10.02.2014 and
the appellant has been suffering the agony of trial since the last 10 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 08 months and 16 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 revision is disposed of in the following
terms:-
(i) The judgment dated 01.09.2023 passed by the learned
Additional Sessions Judge, Sirsa, affirming the judgment of
conviction is upheld, however, the order of sentence dated
08.01.2018 is modified to the extent that the sentence of rigorous
imprisonment for 01 year along with default mechanism awarded
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to the petitioner is reduced to the period of sentence already
undergone by him.
(ii) The sentence qua payment of compensation shall
remain intact and the respondent-complainant will be at liberty to
recover the same in accordance with law.
12. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(HARPREET SINGH BRAR)
March 15, 2024 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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