Col. S. S. Chaudhary vs State & Anr.
2009 Latest Caselaw 1275 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl.Rev.P. 666/2007

%                                Date of reserve : 01.04.2009
                                 Date of decision: 09.04.2009.

       Col. S.S. Chaudhary                 ...Petitioner
                        Through:      Mr.Prag Chawla, Advocate

                                   Versus

       State and Anr.                       ...Respondents
                          Through: Mr.Peeush Kulshreshtha, Advocate
                          for respondent No.2

                                   WITH

+      Crl.Rev.P.596/2007

       Col. Avtar Singh                    ...Petitioner
                           Through: Mr.Peeush Kulshreshtha, Advocate

                                   Versus

       Col. S.S.Chaudhary              ...Respondent
                       Through: Mr.S.S. Chillar, Advocate

CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers      Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?         Yes

3.     Whether the judgment should be             Yes
       reported in the Digest?

MOOL CHAND GARG, J.

1. On a complaint C.C. 343/1 filed under Section 138 of the

Negotiable Instruments Act by Col. S.S. Choudhary (complainant)

petitioner in Crl.Rev.P.666/2007, the Magistrate vide order dated

15.05.2005 held the accused Avtar Singh (petitioner in

Crl.Rev.P.596/2007) guilty and directed him to undergo SI for one

year and to pay double the amount of cheque towards

compensation i.e. Rs.6,95,000/-, as the dishonoured cheque was for

Rs.3,50,000/-. This order was challenged before the learned

Additional Sessions Judge who while upholding the conviction

modified the sentence by converting the SI to RI for one year but

also ordered that no compensation shall be paid by the accused.

The precise reason given for the same was that during the

pendency of these proceedings the parties entered into a

settlement by which, the accused paid a cheque of Rs. 5 lakhs to

the complainant as a compromise but the said cheque was also

dishonoured. The complainant also filed a civil suit for the recovery

of Rs. 5 lakhs based upon the dishonoured cheque which suit has

been decreed in his favour but according to the complainant no

payment has been received so far.

2. The accused, Col.Avtar Singh, is questioning the order of the

Additional Sessions Judge in upholding the conviction; whereas in

other revision the complainant, is aggrieved on account of

modification of the sentence by not granting compensation as

ordered by the Magistrate vide order dated 19.05.2005.

3. Briefly stating the case against the accused, Col. Avtar Singh,

is that he was a friend of complainant and had taken a friendly loan

in the sum of Rs. 5 lakh from the complainant in October, 1996 for a

period of six months. After the expiry of the period, the

complainant requested the accused to return the loan and in part

discharge of the said liability, the accused issued a cheque in

question dated 12.6.1998 for a sum of Rs. 3.5 lakhs drawn on

Punjab National Bank, Chandigarh in favour of the complainant. The

said cheque on presentation was dishonoured on the ground of

insufficiency of funds. Thereafter, the complainant sent a legal

notice dated 13.8.1998 by registered post and/or receipt and the

same was returned back unserved with a report "not met" on

17.9.2000, 18.9.2000 and 19.9.2000. The legal notice was also sent

to the residential and official address of the accused through UPC

but the amount of dishonoured cheque was not paid. On these

accusations, the complaint was filed and after pre-summoning

evidence, the accused was summoned. A notice under Section 251

Cr.P.C. was framed to which the accused pleaded not guilty.

4. In order to prove its case, the complainant examined himself

as CW-1. He examined CW-2 S.K. Garg the official from Canara

Bank which is the bank of complainant. Statement of the accused

under Section 313 Cr.P.C. was also recorded and the accused

examined himself as DW-1 and testified, that complainant

requested the accused for advancing a loan as a help of Rs.

15,00,000/- to start his work at Delhi being known to him being

together in NDA. Although he shown his inability to pay such a

huge amount, however, he issued a cheque of Rs. 3.5 lakhs as a

loan to the complainant and not to discharge any debt or liability of

the complainant. Accused further testified that it was agreed that

the cheque would be presented after confirmation. However, the

complainant became dishonest and without confirmation presented

the cheque, without serving a legal notice upon him because from

July, 1998 to November, 1998, he was in Orissa with his wife. The

accused also examined DW-2 Suresh Pandey. He testified that on

12.6.1998 when he and Hafiz were sitting at the office of the

accused, complainant had come and stated that he needed Rs. 15

lacs urgently, the accused had told him that he cannot give this

amount, however, he can give three/three and a half lacs and that

he had to go Orissa. Thereafter, the complainant told that he may

give the cheque right now. The accused gave the cheque and also

his address of Orissa and told him that he should contact him at

Orissa address. The witness stated that at the time when he left the

job of accused, one lady Neeru was working at his office during

March, 1995 to 30.6.1998. When he was working with the accused

no one else was in the employment of the accused. He admitted

that he is not a summoned witness. The witness stated that he

does not have any document to show that he was in employment of

accused during March, 1995 to 30th June, 1998. After hearing the

argument, the trial court convicted the accused under Section 138

of the Negotiable Instruments Act as aforesaid.

5. Against the aforesaid order, the accused filed an appeal

before the Additional Sessions Judge being Criminal Appeal No.

41/05, who after hearing the parties, vide impugned order dated

23.8.2007 upheld the judgment of the learned Metropolitan

Magistrate regarding conviction of the accused under Section 138 of

the Negotiable Instruments Act. Regarding sentence, he ordered

that out of the compensation amount of Rs.7,00,000/-, Rs.5000/- will

be deposited as fine in the Court. He further ordered that since the

complainant has filed a civil suit for recovery of Rs. 5 lakhs on the

basis of cheque issued by the accused, which had reached the final

stages, he is not inclined to award any compensation to the

complainant. However regarding sentence, he opined that the

conduct of the accused is such that no leniency can be shown to

him. The offence under Section 138 of the Negotiable Instruments

Act is a summary trial. However, the accused adopted all types of

dilatory tactics and the trial became extremely exasperating for the

complainant. Due to this reason the trial took seven longs years to

complete. Therefore, he did not reduce the sentence. However, the

simple imprisonment of one year was modified to the rigorous

imprisonment for one year.

6. The basic issue raised by both the parties is as to whether the

order of the Addl. Sessions Judge in altering the sentence awarded

to the accused by the Magistrate is justified keeping in view the

powers vested in the Appellate Court under Section 386(b)(iii) of

Cr.P.C. At this juncture, it would be appropriate to take note of the

provisions contained under Section 386 of Cr.P.C. which reads as

under:

386. Powers of the Appellate Court.

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction-

(i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate Court or committed for trial, or

(ii) Alter the finding, maintaining the sentence, or

(iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) In an appeal for enhancement of sentence-

(i) Reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence,- or

(ii) Alter the finding maintaining the sentence, or

(iii) With or without altering the finding, after the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) In an appeal from any other order, alter or reverse such order;

(3) Make any amendment or any consequential or incidental order that may be just or proper.

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence, which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

7. Relying upon the provision of Section 386(b)(iii) while the

accused has submitted that enhancement of his S.I. to R.I. for 1 year

was beyond the powers of Appellate Court, the complainant on the

other hand submits that there is no justification in having altered

the punishment with regard to payment of compensation in lieu of

the dishonoured cheque which order is normally required to be

passed in a case of dishonor of the cheque so that the complainant

is compensated out of the money so recovered.

8. It is submitted that in this case even though subsequently a

cheque was given by the complainant of Rs. 5 lakh which is also the

basis of a civil dispute, the said cheque was also dishonoured and

even if it is accepted that there is any compromise arrived at

between the parties the said compromise was not implemented by

the parties inasmuch as the cheque delivered by the complainant

later has been honoured on presentation. Admittedly, the cheque

amount of the dishonored cheque has not been paid. It is also

submitted that even the decree which has been granted in his

favour in the Civil Court is still unexecuted and, therefore, it is

submitted that the order of the Addl. District Judge to that extent be

modified because there is no justification of the said order in having

altered the punishment awarded to the complainant in the facts of

this case.

9. Having gone through the record I find that except for making a

flimsy story that the cheque in question was not to be presented by

the petitioner without prior confirmation nothing has been placed on

record by the accused to show that he ever wrote any letter to the

complainant or send any message by way of a telegram or

otherwise asking the complainant not to present the cheque. Even

if it is assumed for the sake of reference that the accused was not

willing for the complainant to present the cheque to his bankers for

encashment his wish alone wound not justify non-presentation of

the said cheque within due date because once a cheque is issued

unless there is anything on the record to the contrary, there is a

presumption that the cheque had been issued in discharge of a

legally recoverable debt and once the said cheque is presented as

per the scheme of Negotiable Instruments Act the drawer is

required to honour the said cheque on presentation.

10. In the present case there was no such eventuality which might

permit the Trial Court to have acquitted the accused in the facts of

this case and, therefore, the Trial Court rightly convicted the

accused.

11. In so far as the sentence part is concerned in an offence under

Section 138 of N.I. Act, the concerned Court can not only send the

accused to jail by awarding him punishment up to 2 years which

may either be S.I. or R.I. and can also award compensation equal to

twice the amount of the cheque. This provision is made with a view

to enable the Court concerned to ensure that the amount of the

cheque is recovered from the accused and some money out of that

can be given to the complainant as compensation in discharge of

the liability of the cheque which was dishonoured.

12. Similarly, because there was a compromise between the

parties on the basis of which the accused gave a cheque of Rs. 5

lakh in lieu of the cheque of Rs. 3.5 lakh but the said cheque was

also not honoured the accused cannot take benefit of his own

wrong. If the cheque would have been honoured then probably

even this complaint would have had a different colour although

because any payment after the statutory period does not exonerate

the accused from the offence which is committed under Section 138

N.I. Act. However, in the present case neither the accused has paid

the original cheque amount within the time prescribed nor has

honoured the cheque as a compromise. Thus, it does not lie in his

mouth to say that there were circumstances which rightly enabled

the Trial Court to reverse the sentence in the manner as it has been

done.

13. Taking into consideration all these facts I do not find any

justification in the order passed by the Addl. Sessions Judge in

altering the sentence awarded to the accused in a manner that

instead of simple imprisonment he enhanced the same to Rigorous

imprisonment for 1 year and simply reversed the order to pay

compensation without any justified reasons.

14. Accordingly, the Revision Petition filed by the petitioner

(complainant) bearing No. 666/2007 is allowed while Revision

Petition No. 596/2007 filed by the accused is dismissed with the

observation, "that the sentence awarded by the Adcxdl. Sessions

Judge in the appeal filed by the accused is modified and the

sentence awarded to the accused by the Trial Court is maintained."

Both the petitions are disposed of with the aforesaid directions. The

accused Col.Avtar Singh will surrender before the Trial Court within

one week to undergo the sentence so awarded including payment of

compensation for which in the alternative he will also undergo S.I. to

the tune of one year as ordered by the Trial Court. Till then his bail

bond shall remain in operation, but thereafter if he fails to

surrender, his bail bond would stand forfeited. The trial Court would

then take appropriate steps to ensure surrender of Col.Avtar Singh

so as to ensure that he undergoes the sentence.

MOOL CHAND GARG, J.

APRIL 09, 2009