DEBASISH SINHA Vs. SANJIB KARMAKAR

JUDGEMENT

(1.) Order dated 28.04.2014 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Kolkata in Criminal Revision No. 193 of 2013 affirming the order dated 09.01.2013 passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in Case No. C -3785 of 2008 under Section 138 of the Negotiable Instrument Act directing that the petitioner shall be sentenced to suffer simple imprisonment for two months and pay a sum of Rs.3,00,000/ - only as compensation within a period of one month from date has been affirmed.

(2.) The petitioner was prosecuted by opposite party no. 1 for dishonour of a cheque of Rs.1,90,000/ -. In conclusion of trial learned Magistrate by the judgement and order dated 09.01.2013 convicted the petitioner for commission of offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to undergo simple imprisonment for one month and pay a fine of Rs.3,00,000/ - within a period of one month from date, in default to suffer simple imprisonment for three months more. The petitioner appealed against such order before the learned Chief Judge, City Sessions Court, Bichar Bhawan, Calcutta in Criminal Appeal No. 15 of 2013. Learned Chief Judge, City Sessions Court by order dated 24.06.2013 set aside the order of sentence imposed upon the petitioner and remanded the matter for fresh hearing. Pursuant thereto, the learned Magistrate by order dated 18.09.2013 directed the petitioner to suffer simple imprisonment for two months and pay a sum of Rs.3,00,000/ - as compensation under Section 357(3) of the Code of Criminal Procedure within a period of one month from the date of the said order. Learned Additional Sessions Judge, Fast Track, 2nd Court, Kolkata in Criminal Revision No. 193 of 2013 affirmed the said order. Hence the present petition.

(3.) Learned Counsel appearing on behalf of the petitioner submits that in terms of earlier orders passed by this Court as well as the learned Courts below a sum of Rs.1,47,500/ - has already been deposited by the petitioner before the learned Magistrate. He further submits that the petitioner does not have any criminal antecedent and that the learned Courts below did not consider the applicability of the Probation of Offenders Act, 1958 in the facts of the case. He criticizes the impugned orders on the premise that substantive sentence of imprisonment ought not to have been issued upon the petitioner when his failure to pay the cheque amount was due to circumstances beyond his control. He accordingly submits that the sentence be reduced to amount already deposited by the petitioner and the substantive sentence of imprisonment be waived.