Mumtaj Bano vs Narendra Bubkiya

Instant revision petition has been filed by the petitioner challenging the judgment dated 06.03.2019 passed by learned Additional Sessions Judge No.3, Jodhpur Metro (hereinafter referred to as 'the appellate court') by which the appellate court dismissed the appeal of the petitioner and upheld the judgment dated 09.02.2017 passed by the learned Special Judicial Magistrate (N.I. Act Cases) No.5, Jodhpur Metro (hereinafter referred to as 'the trial court') whereby, the learned trial court convicted the present petitioner for offence under Section 138 of NI Act and sentenced to undergo one year's simple imprisonment and also ordered to pay a sum of Rs.3,70,000/- as compensation to the respondent-complainant and in default of payment, to undergo four months' S.I.

Briefly stated the facts of the case are that the complainant-respondent filed a complaint under Section 138 of NI Act against the petitioner alleging therein that for repayment of loan amount, the petitioner issued a cheque bearing No.205794 dated 29.02.2016 of Rs.3,40,000/- to the complainant-respondent. The complainant presented the said cheque in the Bank but the said cheque was dishonoured by the Bank with a remark that the account had insufficient funds. The complainant served a legal notice upon the petitioner through his Advocate.

The learned court below took cognizance in the matter and ultimately framed charge for offence under Section 138 NI Act against the petitioner. The petitioner denied the charge and claimed for trial. During trial the complainant got himself examined and got exhibited certain documents. Thereafter statement of the petitioner under Section 313 Cr.P.C. was recorded.

After conclusion of the trial, the learned trial court vide judgment and order dated 09.02.2017 convicted the accused-petitioner for offence under Section 138 of NI Act and sentenced him as aforesaid.

Aggrieved by the judgment and order dated 09.02.2017, passed by the learned trial court, an appeal was preferred before the learned appellate court, which came to be dismissed vide judgment dated 06.03.2019. Hence this revision petition against the impugned judgments.

At the threshold, learned counsel for the petitioner submits that he does not challenge the finding of conviction but since the accused petitioner is a lady and she is behind the bars since long and out of total sentence of one year's S.I., the petitioner has served more than five months of sentence, therefore, it is prayed that the substantive sentence awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by her.

On the other hand, the learned counsel for the respondent has opposed the submissions made by the learned counsel for the petitioner and submitted that there is neither any occasion to interfere with the sentence awarded to the accused petitioner nor any compassion or sympathy is called for in the said case.

Heard the learned counsel for the parties and perused the judgments passed by both the courts below as well as the record of the case.

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 in custody out of one year's simple sentence, so also being a lady she suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the facts that the petitioner is a lady and she 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.

Accordingly, the revision petition is partly allowed. While maintaining the petitioner's conviction for offence under Section 138 of NI Act, the sentence awarded to her is hereby reduced to the period already undergone. So far as the compensation amount is concerned, the respondent-complainant shall be free to initiate proceedings for recovery of the compensation amount before the trial court. The accused-petitioner is in custody and shall be released forthwith, if not required in any other case.

The record of trial Court as well as the appellate court be sent back forthwith.