1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO. 118 OF 2005 (Mohammad Ismialbhai Plotwale Sheikh Ibrahim .v. Hifzul Kabir Hifzul Karim) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri R.S. Akbani, Advocate h/f Shri J.A. Anthony, Advocate for the applicant. Shri M.A. Rehman, Advocate for the respondent. CORAM : PRASANNA B. VARALE, J. 05TH APRIL, 2011. Heard. By way of present revision application, the applicant is seeking challenge to the judgment and order of conviction passed by the learned III Additional Sessions Judge, Nagpur dated 25.02.2005 in Summary Criminal Appeal No. 67/2001 confirming the order of conviction passed by the learned JMFC, Court No.4, Nagpur dated 16.08.2001 in Summary Criminal Case No. 1487/1991. The applicant is the original accused and the non- applicant/respondent is the original complainant. Summary Criminal Case No. 1487 of 1991 was filed by the non-applicant/ original complainant for dishonour of cheque of Rs.25,000/- issued by the applicant/original accused. The learned JMFC, on considering the evidence, held the applicant/accused guilty of offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for two months and to pay a fine of Rs.2000/-, in default, to suffer further simple imprisonment for one month. The accused further directed to pay compensation of Rs.25,000/- to the complainant within a period of one month. Being aggrieved by the aforesaid judgment and order of conviction of the learned Magistrate, the applicant/original accused filed an appeal i.e. Summary Criminal Appeal No. 67/2001. The learned lower appellate Court maintained the 2 conviction and the order of compensation, however, reduced the sentence to imprisonment for one day i.e. till rising of the Court. The fine amount of Rs.2,000/- was also maintained. Learned Counsel for the applicant submits that both the learned lower Courts failed to appreciate the evidence and the facts of the matter in their proper perspective which resulted into the erroneous orders impugned. Learned Counsel submits that the applicant is ready to part away with the amount of cheque and also ready to settle the matter if the non-applicant shows his willingness. Learned Counsel for the non-applicant/respondent submits that as per his instructions the non-applicant is not ready to settle the matter. Learned Counsel for the non-applicant further submits that in view of the order passed by this Court dated 23.11.2009 wherein revision No.90/2005 was filed by the non-applicant seeking challenge to the judgment and order passed by the learned Additional Sessions Judge for reducing substantive sentence and the Apex Court confirming the order passed by this Court, the revision application requires no interference at the hands of this Court. I have gone through the record with the assistance of the learned Counsel appearing on behalf of the respective parties. Perusal of the record shows that the judgment and order passed by the learned Additional Sessions Judge in Summary Criminal Appeal No. 67/2001 was the subject matter of Criminal Revision Application No.90/2005 filed by non-applicant/original complainant. It will be useful to refer the observations of this Court while considering the judgment of the lower appellate Court. “Perusal of the judgment and order passed by the Appellate Court discloses that the grounds on which the substantive sentence was reduced are that the accused was aged 60 years and that he had to face trial for a period of ten years. I am afraid of both the grounds are not germane to reduce the sentence on the accused by the learned Magistrate. On the contrary, the complainant had to continue with the proceedings for a period of ten 3 years against the accused to recover legitimate amount due in terms of the cheque from the respondent-accused. Therefore, the fact that the accused had to face trial for 10 years is totally irrelevant for reducing the sentence. Insofar as the age of the accused is concerned, having regard to the fact that maximum punishment in terms of Section 138 of the Negotiable Instruments Act at the time of commission of the offence was one year, the imposition of sentence for two months of simple imprisonment by the learned Magistrate cannot be termed as excessive warranting interference in appeal against the conviction. It is well settled law by catena decisions of the Apex Court that once an accused is convicted, the sentence shall be proportionate to the crime. Considering the factual background, learned Magistrate had imposed substantive sentence of two months S.I. which cannot be termed as excessive warranting interference by the Appellate Court. Therefore, I find merit in the submission of Mr. Shareef that the lower Appellate Court ought not to have interfered with the substantive sentence imposed by learned Magistrate on the accused. In the case of Suganthi Suresh Kumar (supra) relied upon by learned Counsel, the Apex Court has held that the sentence for the offence under Section 138 of the Negotiable Instruments Act must be of such a nature as to give proper effect to the object of the legislation. In the said case, learned Magistrate had imposed imprisonment till rising of the Court and fine of Rs.5000/- in two cases when the amount covered by dishonour of cheques was Rs.Four lac. The Apex Court remanded the matter back to the learned Magistrate for awarding the sentence. In the present case learned Magistrate after considering the facts and circumstances of the case imposed substantive sentence of two months S.I. on the accused by which by no stretch of imagination, can be termed as excessive. Therefore, lower Appellate Court committed jurisdictional error in interfering the sentence. Therefore, the impugned order to the extent it imposes sentence of imprisonment till rising of the Court on the accused deserves to be quashed and set aside. In the result, therefore, the revision is allowed. The substantive sentence of imprisonment as well as fine and conviction imposed by the learned Magistrate are maintained. The order passed by lower Appellate Court reducing sentence for two months S.I. to till rising of the Court is set aside.” It is thus clear from the order of this Court that this Court was pleased to maintain the substantive sentence of 4 imprisonment as well as fine and conviction imposed by the learned Magistrate and the order passed by the lower appellate Court reducing the sentence is set aside. The record further shows that the applicant has initially filed Revision No. 90/2005 which was dismissed in default and restored subsequently and again it was dismissed. It is also not in dispute that against this order dated 23.11.2009, Special Leave Petition was preferred in the Apex Court and the Apex Court vide order dated 01.10.2010 dismissed the SLP. The copy is placed on record at Annexure-R2. The record further reveals that the applicant has preferred review petition No. 2/2011 in SLP No. 120/2010 and the same is also dismissed by order dated 18.01.2011. In view of the order passed by this Court as well as the orders passed by the Apex Court in SLP and the review petition, I see no reason to show any indulgence. The revision application is devoid of merits. In the result, the revision application is rejected. JUDGE *rrg.