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2023 (11) TMI 362 - HIMACHAL PRADESH HIGH COURTDishonour of Cheque - insufficiency of funds - rebuttal of presumption - it is alleged that the learned trial Court has not considered the law and facts involved in the present case as the complainant could not plead and prove, in this case, that there was any subsisting liability at the time of issuance of cheque in question - quantum of sentence - HELD THAT:- 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. 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 imprisonment till ‘rising of Court’ - Revision disposed off.
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