Ashraf Khan vs State & Anr.
2010 Latest Caselaw 5777 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Reserve: 13th December, 2010
                                                     Date of Order: 20th December, 2010

+ Crl.M.A.No. 18486/2010 in Crl. Rev. P. No.81/2010
%                                                                      20.12.2010

        Ashraf Khan                                       ... Petitioner
                                 Through: Mr. Rahul Gupta, Advocate with
                                 Mr. Gagan Gupta & Ms. Ira Gupta, Advocates

                Versus


        State & Anr.                                      ... Respondent
                                 Through: Mr. Sunil Sharma, APP for the State


JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORDER

This Court vide order dated 30th November, 2010 had directed

for release of amount of ` 20 lac to the respondent no.2 (hereinafter referred

as respondent). The petitioner has made this application for recalling of the

order. The contention of the Counsel for the petitioner is that the Court should

not come in the aid of black money and should take a serious view of cash

transactions and release of this amount in favour of the respondent would in

fact amount to Court helping illegality and perpetuating illegal transaction. He

submitted that the transaction involved was in respect of ill gotten money of

the parties and the Court should not have ordered for release of the amount in

favour of the respondent.

2. Brief facts relevant for the purpose of deciding this application

are that the respondent filed a complaint under Section 138 of Negotiable

Instruments Act about dishonour of two cheques issued by the petitioner for a

sum of ` 26.25 lac. One cheque was for a sum of ` 21 lac and other cheque

was for a sum of ` 5.25 lac. The respondent/complainant has contended that

he had sold two agricultural properties for a sum of ` 55.5 lac and the

petitioner who was his friend asked for a friendly loan of ` 26.25 lac, he out of

his sale proceeds, received in cash, gave ` 26.25 lac of amount in cash, to

the petitioner as a friendly loan which was to be returned within a period of six

months. However, when it was not returned and complainant demanded his

loan back petitioner assured for return of the loan soon and issued two

cheques of aforesaid amount of ` 21 lac and ` 5.25 lac. These cheques got

dishonoured and despite notice of demand, amount was not paid. The

respondent then filed a complaint under Section 138 of Negotiable

Instruments Act. The Court of MM found petitioner guilty of offence under

Section 138 of NI Act and awarded one year imprisonment and compensation

of `41 lac. In appeal, the learned Court of Sessions re-considered the entire

evidence and arguments about the liability of the petitioner and upheld the

judgment of learned trial Court. However when the appeal was dismissed, on

an application under Section 389 Cr.P.C., the sentence of the appellant was

suspended and the appellant approached this Court by way of revision. At

the time of admission of revision, the sentence awarded to the appellant was

suspended subject to condition that he shall deposit ` 20 lac out of the

compensation awarded to the complainant, this included ` 5 lac already

deposited with the trial Court. This amount was deposited and the

respondent/complainant then made an application for release of this amount

stating that marriages of his daughters were held up because of the funds, as

approximately half of the funds he had raised by selling his agricultural

properties were taken by the petitioner who was a close friend of him, but this

amount was not returned. Therefore since in two Courts he has already

succeeded this amount of ` 20 lac be released. The amount was released in

favour of the respondent.

3. I consider that the release of the amount in favour of the

respondent by this Court is justified. The issue of cash transaction or

involvement of black money is not relevant at this stage. The respondent had

succeeded in two Courts below. I find no reason that the respondent should

be deprived of this amount. In fact, the petitioner should have been asked to

deposit the entire compensation amount by this Court and only imprisonment

part should have been suspended. The application made by the petitioner for

recalling the order has no force and is hereby dismissed. However, it is made

clear that in case the revision is allowed, the Court shall pass necessary order

for calling this amount back from the respondent.

Crl.Rev. Petition No. 81/2010

List on 18th March, 2011.

December 20, 2010                                  SHIV NARAYAN DHINGRA, J.
vn