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TMI Blog2023 (11) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act. Quantum of sentence - HELD THAT:- In the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice is better. Considering the said fact, while deciding the quantum, it was incumbent upon the learned trial Court to consider the fact about the benefit which had drawn by the accused for committing the offence alleged against the complainant - The learned trial Court has awarded the compensation of Rs.3,50,000/- and the said order of quantum of sentence has not been assailed by the complainant before the learned Appellate Court or before this Court. Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the banker with the remarks "funds insufficient". Memo in this regard was issued on 27.07.2011, and the same was communicated to the complainant by her banker on the same day. Thereafter, the statutory notice was issued by the complainant through her Counsel on 08.08.2011. The said notice was duly acknowledged by the accused, however, according to the stand taken by the complainant, neither notice was replied to nor the amount was paid. The complainant after waiting for the statutory period, has filed a complaint under Section 138 of the N.I. Act. 6. On the basis of the documents annexed with the complaint, as well as, the preliminary evidence adduced by the complainant, learned trial Court has found a prima-facie case to proceed against the accused for the offence punishable under Section 138 of the N.I. Act, as such, he was summoned. 7. After securing the presence of the accused, the learned trial Court found a prima-facie case for the commission of offence punishable, under Section 138 of the N.I. Act, as such, notice of accusation was put to the accused, to which, he has pleaded not guilty and claimed to be tried. 10. Since, the accused has not pleaded guilty, as such, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue can be rebutted. 19. Highlighting the fact that although the accused had denied the issuance of cheque, but he has not bothered to step into the witness box, after seeking permission of learned trial Court under Section 315 Cr.P.C. 20. On the basis of above facts, a prayer has been made to dismiss the petition. 21. Perusal of the record shows that the order of sentence was ordered to be stayed vide order dated 14.08.2019, subject to depositing 15% of the cheque amount and furnishing personal and surety bonds in the sum of Rs.25,000/- to the satisfaction of the learned trial Court. 22. Thereafter, on 05.05.2022, on the request of the accused, he was permitted to deposit the cheque amount. On 23.05.2022, the said cheque was deposited and thereafter, on his request, he was permitted to deposit remaining amount of Rs.50,000/-. The said amount, as per order dated 04.07.2022, was deposited with the Registry of this Court. 23. On 07.12.2022, the following order was passed:- "Learned counsel for the petitioner informs the Court that the entire compensation amount now stands deposited by the petitioner and endeavour of the petitioner is that the offence be compounded. On the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed and the same was returned vide memo Ext. CW-1/C. The document Ext. CW-1/C was issued by the then Manager Sh. S.C. Sharma, who has since been superannuated. 30. This is the entire evidence on record. 31. The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act. In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under Section 313 Cr.P.C, then, the said stand has rightly been discarded by the learned trial Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act. 32. So far as the quantum of sentence is concerned, in the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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