* HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. No.4822/2005
Date of Decision: 18.11.2011
M/S. LINKERS ASSOCIATES ...... Petitioner
Through: Mr. Arun K.Yadav,
Adv.
Versus
LALIT FABRICS P. LTD. & ORS. ...... Respondents
Through: None.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment ? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J.
1. This is a petition filed by the petitioner under section 482 Cr.P.C., assailing the order of sentence dated 07.05.2005, passed by the learned Magistrate, releasing the respondent Nos.2 to 4 on probation on furnishing a personal bond with one surety in the Crl.M.C.No.4822/2005 Page 1 of 7 sum of Rs.20,000/-, apart from directing all the respondents to pay compensation of Rs.7,85,000/-.
2. Briefly stated the facts of the case are that respondent No.1, M/s.Shree Lalit Fabrics Pvt. Ltd. and its Managing Director, Sh.Swaran Khemka and the Directors, Sh.Ban Mali and Sh.Rakesh Khemka were convicted for an offence under section 138 of the Negotiable Instruments Act by the learned Magistrate on 02.04.2005 on the ground that they had issued 18 cheques for a total sum of Rs.6,85,000/- in favour of the petitioner/complainant, however, on presentation each one of them got dishonoured. The learned Magistrate after holding the trial pronounced them guilty. The learned MM heard both, the present petitioner/complainant and the respondents/ accused persons on the question of sentence and released respondents No.2 to 4 on probation, as stated hereinabove, taking a lenient view in the Crl.M.C.No.4822/2005 Page 2 of 7 matter. The reason for taking this lenient view was that the total cheque amount was Rs.6,85,000/- and the respondents had agreed to pay the said amount. The learned MM enhanced the total amount payable to Rs.7,85,000/- by way of compensation to the petitioner /complainant. He also took into consideration the ill-health of the respondent No.2/Swarn Khemka, who was aged about 70 years and even at the time of receiving the sentence he had been brought to the Court in a wheel chair. The opposition of the petitioner to the lenient view being taken was dismissed by the learned Magistrate.
3. Feeling aggrieved by the order of sentence, dated 07.05.2005, the present petition has been filed by the petitioner.
4. The main contention, which was advanced before the learned Magistrate as well as before this Court was that according to the Negotiable Instruments Act, the convict can be saddled with a penalty, which is Crl.M.C.No.4822/2005 Page 3 of 7 double the cheque amount and since in the instant case the petitioner had been able to establish that the respondents had issued cheques worth Rs.6,85,000/-, therefore, the minimum, which was expected of the Court was to sentence them and double the amount of the money, by way of compensation or penalty. With regard to the offer of payment of this amount of Rs.6,85,000/- by the respondents, it was urged by the learned counsel that this was not a bonafide offer as the cheque had bounced in the year 1993 and no sincere efforts were made by the respondents to pay the amount during all these years of the Trial, which clearly showed that once they were convicted the wisdom dawned on them to pay the amount to the present petitioner. Accordingly, on the basis of the aforesaid facts, it has been contended that the order of sentence be set aside and the respondents be sentenced to a harsher punishment.
Crl.M.C.No.4822/2005 Page 4 of 7
6. I have considered the submissions made by the learned counsel for the petitioner and gone through the record.
7. There is no dispute about the fact that the offer made by the respondents after the conviction, to pay Rs.6,85,000/- was not bona fide as the case had been pending since 1993. Essentially the question, which is to be seen is that this is a case in which the cheques had bounced in the year 1993; the order of sentence was passed in the year 2005; appeal is pending in this Court since 2005 and admittedly in the instant case respondent No.2 at the time, when he received the sentence, was not keeping good health on account of his old age and he was stated to be 71 years of age at that point of time. Now to reverse that order of sentence and award a harsher punishment on the respondents would be inequitious in my considered opinion. Moreover, the question of imposing the sentence has to be Crl.M.C.No.4822/2005 Page 5 of 7 essentially exercised by the learned Magistrate. The Magistrate had accepted the offer of payment of Rs.6,85,000/- by the respondents to the present petitioner and also saddled the respondents with an added amount of Rs.1 Lac, as penalty so as to round off the figure to a sum of Rs.7,85,000/- by way of compensation. This, in my view, though is a lenient view but it cannot be said to be arbitrary, capricious and in abuse of the processes of law warranting the interference by this Court. No doubt, this Court being superior Court may take an opinion different than the one taken by the learned Magistrate but that in itself is not sufficient enough to seek substitute of the view taken by the learned Magistrate and that too belatedly.
8. Keeping in view the totality of the circumstances, I feel that there is no merit in the submissions of the learned counsel for the petitioner for setting aside the order dated 07.05.2005 by virtue of which Crl.M.C.No.4822/2005 Page 6 of 7 respondents No.2 to 4 were released on probation for a period of six months, which period has also come to an end long back and then now to put them to further terms. So far as the recovery of the amount is concerned if it has not been paid already, the petitioner is free to recover the amount by resorting to due processes of law.
9. The petitioner has not been able to make a case for abuse of the processes of law or requiring any order being passed in the interest of justice and accordingly, the petition is dismissed.
V.K. SHALI, J.
November 18, 2011 ss Crl.M.C.No.4822/2005 Page 7 of 7