Rajasthan High Court - Jodhpur
Naresh Kumar vs Gaurav Kumar Saxsena on 9 January, 2023
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 25/2023
Naresh Kumar S/o Late Shri Veerbhan, Aged About 35 Years, R/o
Mateshwar Nagar, Kanasar Road, Bikaner. (At Present Lodged In
Central Jail, Bikaner)
----Petitioner
Versus
1. Gaurav Kumar Saxsena S/o Shri Rajendra Swaroop,
Proprietor Gaurav Mothers R/o 1/38 Bichwal Commercial
Complex Bikaner.
2. The State Of Rajasthan, Through Pp
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
09/01/2023
1. This criminal revision petition under Section 397 read with
Section 401 Cr.P.C. has been preferred claiming the following
reliefs:
"It is therefore most humbly and respectfully prayed
that the revision petition may kindly be allowed and
the judgment dated 17.10.2022 passed by learned
Additional Session Judge No.03, Bikaner in Criminal
Appeal No.109/2019 and judgment dated 21.10.2019
passed by Special Judicial Magistrate (N.I. Act,
Cases) No.02, Bikaner in Criminal Case No.21/2016
who whereby the judgment of conviction and
sentence passed by learned Appellate Court as well
as trial Court may kindly be quashed and set aside
and the petitioner may kindly be acquitted from the
alleged charges..
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2. The brief facts of this case, as placed before this Court, by
the learned counsel for the petitioner are that the complainant-
respondent No.1 filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 alleging therein that the
petitioner issued a cheque towards repayment of the amount
borrowed by him from the complainant; when the complainant
presented the same for encashment, the said cheque was
dishonoured by the concerned Bank due to insufficient fund.
Thereafter, the complainant served a legal notice upon the
petitioner.
3. The learned court below took cognizance of the matter under
Section 138 of the Act of 1881. The petitioner appeared and
denied the charge and claimed for trial. During trial, the
prosecution witnesses were examined, whereafter, the statement
of the petitioner under Section 313 Cr.P.C. was also recorded.
After conclusion of the trial, the learned court below vide the
impugned judgment dated 17.10.2022 convicted the petitioner for
the offence under Section 138 of the Act of 1881 and sentenced
him for 1 year and 8 months' rigorous imprisonment, alongwith a
fine, and in default of payment of fine, he was ordered to undergo
further three months simple imprisonment.
4. Learned counsel for the petitioner makes a limited prayer
while submitting that the petitioner does not challenge the finding
of conviction, but since the present petitioner has served 1 year, 5
months and 8 days of sentence, as is apparent from the report
furnished by the learned Public Prosecutor, therefore, the period of
sentence may be reduced to the period already undergone by him.
5. The report is taken on record.
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6. Learned counsel for the petitioner placed reliance on the
judgement rendered by this Court in Smt. Mumtaj Bano Vs.
Narendra Bubkiya S.B. Criminal Revision Petition No.
459/2019 decided on 09.08.2019, wherein the following was
observed:
"It is not disputed that the accused petitioner was
sentenced to a period of one year's simple imprisonment,
however, the petitioner has so far undergone a period of
more than five months five months in custody out of one
year's simple sentence ... has remained behind the bars for
more than five months, it will be just and proper if the
sentence awarded by the trial court, which was affirmed by
the appellate court, for offence under Section 138 of NI Act is
reduced from one year's simple imprisonment to the period
already undergone by the petitioner."
7. On the other hand, learned Public Prosecutor opposes the
submissions made on behalf of the petitioner.
8. Heard learned counsel for the parties and, perused the
record of the case and the judgment cited at the Bar.
9. This Court looking into the overall facts and circumstances of
the case, the precedent law cited in Smt. Mumtaj Bano (supra)
and the fact that the petitioner has already served more than one
year and five months, out of one year and eight months' sentence
as awarded to him by the learned trial court and affirmed by the
learned appellate court, it will be just and proper if the sentence
awarded to the petitioner for the offence under Section 138 of the
Act of 1881 is reduced from one year and eight months' rigorous
imprisonment to the period already undergone by him.
10. Accordingly, the present petition is partly allowed. While
maintaining the petitioner's conviction for the offence under
Section 138 of the Act of 1881, the sentence awarded to him is
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hereby reduced to the period already undergone. So far as the
compensation amount is concerned, the respondent no.1 shall be
free to initiate appropriate legal proceedings for recovery of the
compensation amount before the learned trial court. The petitioner
is in custody and shall be released forthwith, if not required in any
other case. All pending applications stand disposed of. The record
of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
347-Sudheer/-
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