Rajasthan High Court
Sunil Jain vs Sugna National Engineering And ... on 29 April, 2013
Heard learned counsel for the petitioner-complainant
as well as learned Public Prosecutor appearing on
behalf of Respondent No. 2-State and perused
impugned judgments and orders passed by both
the Courts below.
2. This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the judgment and order dated 19.09.2011 passed by learned Additional Sessions Judge(Fast Track) No. 5, Jaipur Metropolitan(hereinafter referred to as ‘the Appellate Court’) in Criminal Appeal No. 196/2010(960/2010), whereby appeal filed by the accused-respondent against the judgment and order dated 27.09.2010 passed by learned Additional Chief Metropolitan Magistrate No. 12, Jaipur Metropolitan in Criminal Case No. 569/2006, whereby Respondent No. 1-accused was convicted for the offence under Section 138 of Negotiable Instruments Act, 1881 and imposed fine of Rs. 30,000/-, in default of payment of fine to further undergo simple imprisonment for two months, has been allowed and benefit of Section 4 of the Probation of Offenders Act, 1958(hereinafter referred to as 'the Act of 1958') given to the accused-Respondent No. 1 and also ordered that the complainant-petitioner is entitled to get the cheque amount deposited by the accused-Respondent No. 1.
3. Learned counsel for the petitioner vehemently contended that the cheque had bounced in the year 1998. It is only after a lapse of about 10 years that the cheque amount was deposited in the Court for payment to the revisioner-petitioner. Secondly, the benefit of probation has been granted by the learned Appellate Court without assigning cogent reasons. Lastly, learned counsel for the petitioner argued that without passing any order of sentence and penalty up to double of the cheque amount, the benefit of probation has been granted to the accused-Respondent No. 1. So, learned counsel for the petitioner prayed to accept present revision petition and to quash and set aside both the judgments and orders passed by the Courts below and the accused-Respondent No. 1 be ordered to be convicted for offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo 2 years simple imprisonment and a fine of Rs. 30,000/- be also imposed.
4. Learned Public Prosecutor appearing on behalf of Respondent No. 2-State vehemently opposed the prayer of learned counsel for the petitioner and supported the judgment and order passed by the Appellate Court.
5. I have given thoughtful consideration to the rival submissions of learned counsel for the petitioner as well as learned Public Prosecutor for Respondent No. 2-State.
6. Undoubtedly, the Act of 1958 is a beneficial piece of legislation. In case the accused has committed first offence, ordinarily the benefit of the provisions of the Act of 1958 should be given to him. Moreover, the benefit of the Act of 1958 is always given after convicting the person of offence, but instead of sentencing him to a particular term of imprisonment, the benefit of the Act of 1958 is generally granted.
7. Section 4(1) of the Act of 1958 provides that When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour. It is further provided under Section 4(1) of the Act of 1958 that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
8. Similarly, Section 360(1) Cr.P.C. provides that when any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour.
9. Section 360(3) Cr.P.C. further provides that in any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code(45 of 1860), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
10. Section 361 Cr.P.C. provides that where in any case the Court could have dealt with, (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
11. A bare perusal of the impugned judgment and order passed by the learned Appellate Court clearly reveals that learned Appellate Court has considered the facts and circumstances of the case and noticed the fact that the accused-Respondent No. 1 is a poor lady having young daughter. Learned Appellate Court has observed as under:
12. Merely because the cheque amount has been deposited by the accused-respondent before the Trial Court after a lapse of considerable period i.e. about 10 years, it would not disentitle the accused-Respondent No. 1 from the benefit of the Act of 1958. In my opinion, there is no special reason to deny benefit of the Act of 1958 to the accused-Respondent No. 1. In the totality of the facts and circumstances of the case, learned Appellate Court was justified in extending the benefit of Section 4 of the Act of 1958 and also ordering that the complainant-petitioner is entitled to get the cheque amount deposited by the accused-Respondent No. 1 before the Trial Court. While granting benefit of Section 4 of the Act of 1958, it is not incumbent on the learned Magistrate/Appellate Court to first sentence the accused-person to a particular term of imprisonment. Therefore, the contentions raised by learned counsel for the petitioner-complainant are without any merit.
13. For the reasons stated above, this Court does not find any illegality or perversity in the impugned judgment and order passed by the Appellate Court.
14. The revision petition, being devoid of any merit, is hereby, dismissed at this stage.
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