MOHD. SAIED Vs. ASHISH KUMAR AGARWAL

JUDGEMENT

(1.) As both, the revision petition and misc. petition arise out of a criminal complaint filed by Ashish Kumar Agarwal against Mohd. Saied (Cr. Case No. 286/84) in the Court of Additional Civil Judge (Junior Division) and Judicial Magistrate No. 8 Jaipur City, they are being disposed of by this common order.

(2.) In short, the fact of the case are that Mohd. Saied (accused) purchased jewellery worth Rs. 60,000.00 from the complainant Ashish Kumar Aggarwal on 12.2.94 and promised to pay the amount within two months, but he failed to make the payment within the stipulated period. Thereafter, accused issued two cheques of Rs. 10.000.00 each in the month of June, 1994. The complainant, presented these cheques for payment to the concerning bank but both the cheques were dishonoured. Thereafter, giving required notice complainant Ashish Kumar filed a criminal complaint for the offence under Sec. 138 of Negotiable Instruments Act (hereinafter, to be referred as the Act) in the Court of Additional Civil Judge, (Junior Division) and Judicial Magistrate No. 8, Jaipur City. After trial, the accused Mohd. Saied was convicted and sentenced for the offence under Sec. 138 of the Act and was awarded one year's rigorous imprisonment and a fine of Rs. 3,000.00, in default of payment of fine, to further undergo two months' rigorous imprisonment. The accused Mohd. Saied preferred appeal against the conviction and sentence which was heard and decided by the learned Sessions Judge, Jaipur City. It appears from the judgment that accused appellant has not challenged his conviction under Sec. 138 of the Act but the arguments were restricted for extending the benefit of probation under the Probation of Offenders Act. But the learned Sessions Judge rejected the appeal on the ground that being a commercial transaction it is not proper to release the accused by extending the benefit of the provision of Probation of Offenders' Act. Hence, the accused has filed the revision petition court against the said judgment.

(3.) The complainant also filed a revision petition before the learned Sessions Judge for enhancement of fine on the ground that according to Sec. 138 of the Act fine can extend to twice the amount of the cheque whereas; the learned trial Court has only imposed a fine of Rs. 3,000.00 which is inadequate. But this revision petition was also dismissed. Therefore, he has preferred misc. petition against the said judgment under Sec. 482 Cr.PC. Revision