Vinod Sharma vs State & Another
2010 Latest Caselaw 3552 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl.Rev.P. Nos.336/08

                                   Date of Decision : 30.07.2010
Shailender Saxena                                 ......Petitioner
                                 Through: Mr. A.P. Srivastava, Proxy
                                           Counsel

                                  Versus

State & Another                                ...... Respondents

Through: Nemo

AND Crl.Rev.P. No. 388/08

Vinod Sharma ......Petitioner Through: Mr. A.P. Srivastava, Proxy Counsel

Versus

State & Another ...... Respondents Through: Nemo CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

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

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. (oral)

1. There are two Criminal Revision Petition under Section 397

read with 401 of the Code of Criminal Procedure against

judgment dated 11th March, 2008 passed by the Additional

Sessions Judge, Karkardooma Courts, Delhi in Crl. Appeal

No.33/2007 The Criminal Revision bearing No. 336/2008

has been filed by the accused challenging the judgment

dated 11.03.2008 passed by ASJ, Patiala House Courts and

the judgment of conviction dated 17th August, 2004 and the

order of sentence dated 23rd August, 2004 passed by the

learned Trial Court in a case bearing No.1596/2003

convicting the petitioner for an offence under Section 138 of

Negotiable Instruments Act and sentencing him for a period

of one year simple imprisonment with a fine of Rs.20.00

lakhs. In default of payment of fine, simple imprisonment

for one year was imposed. The learned ASJ had converted

the fine amount of Rs. 20 lacs into a compensation amount

of Rs.8 lacs to be recovered from the petitioner by resorting

to Section 421 Cr.P.C. So far as second Revision bearing

No. 388/2008 is concerned that has been filed by the

complainant for enhancement of the compensation amount

of Rs. 8 lacs.

2. Briefly stated, that facts of the case are that the

respondent no. 2 was known to the present

petitioner/accused since their fathers were friends. It was

stated in the complaint that the petitioner was a proprietor

of M/s Shail Steel Company located at Rishikesh and he

asked the respondent No.2 for a loan for a short period.

The said loan was allegedly given by way of three drafts for

a sum of Rs.1.00 lakh each and a cheque for Rs.40,000/-

and Rs.6.00 lakh. In all, a sum of Rs.9.40 lakh is alleged

to have given by the respondent No.2 to the present

petitioner. The petitioner in order to discharge the liability

of said loan had issued a cheque No.938538 dated 16th

June, 1998 for a sum of Rs.12,91,213/- drawn on Oriental

bank of Commerce, Rishikesh Branch in favour of the

respondent No.2. It is alleged that the said amount was

actually inclusive of the interest on the principal amount of

Rs.9.40 lakh and was paid to the respondent no.2 towards

the full and final settlement of his entire liability. It is this

cheque which was dishonoured. After a prolonged trial, the

learned Trial Court passed a judgment finding the

petitioner guilty of the offence under Section 138 Negotiable

Instruments Act and then sentenced him to one year of

simple imprisonment apart from fine of Rs.20.00 lakh. The

judgment was passed on 17th August, 2004 and the order of

sentence on 23rd August, 2004.

3. Petitioner feeling aggrieved by his conviction and the

sentence chose to file a criminal appeal bearing

No.33/2007 against the order of the learned Magistrate. In

the appeal, all the pleas, factual as well as legal, pertaining

to vitiating the trial on account of non-service of notice,

presumption and various other points were taken. The

learned Appellate Court passed a detailed order rejecting all

the contentions, both factual as well as legal, urged by the

petitioner and upheld his conviction, however as the

petitioner during the pendency of his appeal had actually

paid the principal amount, the learned Appellate Judge

taking into consideration this as a mitigating factor reduced

the payment of fine from Rs.20.00 lakh to Rs.8.00 lakh

converted the same into compensation. It is further

observed that since the principal amount had been paid,

therefore the custodial sentence would not serve any

purpose and therefore, the additional amount of Rs.8.00

lakh by way of fine be recovered by resorting to recovery

process as envisaged under Section 421 of the Code of

Criminal Procedure. With this modification of sentence, the

conviction of the petitioner was upheld.

4. Petitioner still feeling aggrieved has chosen to file the

present revision petition both against the Appellate Court's

order dated 11th March, 2008 as well as against the

judgment and order dated 17th August, 2004 and 23rd

August, 2004 respectively passed by the learned Trial

Magistrate. The arguments in this case were heard in

stages as repeatedly the learned counsel for the petitioner

for one reason or the other sought adjournment and

consequently written submissions were obtained from the

respondent No.2 while as petitioner chose not to file written

submissions but his synopsis which has been annexed to

the petition has been treated as the written submissions. I

have gone through the written submissions of both the

parties and perused the record.

5. At the outset, it must be pointed out that the filing of the

present revision petition against the order dated 11th

March, 2008 is an attempt by the petitioner to raise all

those pleas which are factual as if he has a right of second

appeal against the judgment of both the Appellate Court

and the Trial Court. It may be pertinent here to refer to

Section 397 (3) of the Code of Criminal Procedure which

clearly lays down that there is a prohibition of preferring

two revision petitions meaning thereby as the power of

revision is a concurrent power both with the Sessions

Court and the High Court, the Legislature has rightly

restricted the right to file a revision only in one forum so as

to avoid the repetitive and multiplicity of litigation against

an impugned order. While dealing with the aforesaid

provision of Section 397(3) and the powers of revision of the

High Court, there are catena of authorities which lay down

that if a party has preferred an appeal and still feels

aggrieved, then the revision cannot be filed by him so as to

invite the High Court to go into the question of merit or

question of fact meaning thereby that the High Court in

exercise of its revisional powers will interfere with the

finding of the Trial Court and the first Appellate Court

which will amount to re-examination of the entire evidence

so as to upset the concurrent finding of the Trial Court and

the first Appellate Court. A reliance in this regard can be

placed on only one of the number of authorities which is

titled State of Maharashtra Vs. Jagmohan Singh

Kuldeep Singh Anand & Ors 2004 (7) SCC 659.

6. In the light of this parameter which has been set by the

Apex Court on the exercise of powers of revision by the

High Court, I feel all points which have been raised in the

petition of petitioner with regard to the vitiating of the trial

on account of non-service of notice, procedure for

investigation not properly being followed or the

complainant/respondent No.2 having violated Section 3(b)

(ii) of the Punjab Registration of Money Lenders Act, 1938

are not at all relevant at the stage of revision. These are all

factual points which are urged or ought to have been urged

before the learned Trial Court or at best before the first

Appellate Court. The learned counsel for the petitioner has

failed to show that there is any jurisdictional error or lack

of exercise of jurisdiction or exercise of excess jurisdiction

or material irregularity of the decision of the learned

Appellate Court. On the contrary, the very fact that the

finding of the Trial Court has not only been confirmed by

the Appellate Court but also the fact that the petitioner has

actually paid the amount of Rs.12.00 lakh being the

principal amount to the respondent No.2 is in fact

admission of his guilt that he had committed an offence

and this forecloses the right of the petitioner to raise all

these factual points now in the present petition. A perusal

of the operative portion of the learned Sessions Court's

order shows that a very lenient view has been taken and it

has reduced the amount of fine from Rs.20.00 lakh to

compensation of Rs.8.00 lakh and dispensed with the

custodial sentence in default of payment of the same which

is sufficient enough to have made the present petitioner

satisfied the operative portion of the learned Sessions

Judge's order is quoted as under :

"Appellant submits that during pendency of this appeal, he has made payment of cheque amount to the complainant. He further presents that his house has been sold, when money was arranged to make payment of the cheque amount. He projects that he has suffered agony of trial for a period of 10 years. According to him, all these mitigating factors may be taken into account, while awarding sentence to him. Admittedly, appellant has made payment of the cheque amount during pendency of this appeal. It was impressed upon the appellant as well as to complainant to withdraw litigations pending between them, so that they may revive their relations. Efforts made by the Court proved futile. However, mitigating circumstances, referred above, persuade me to think that it is not a fit case, where custodial sentence should be awarded to the appellant. Since he has utilized the cheque amount for a period of ten years, his pocket should be taxed to make a balance between factors of crime and circumstances surrounding the appellant. Taking into account all these situations, it is ordered that appellant shall make payment of Rs.8,00,000/- as compensation to the complainant, besides the cheque amount already paid. In case amount of compensation is not paid, it would be recovered by the Trial Court in view of provisions of Section 421 of the Code. With this modification of sentence, appeal stands disposed of. Trial Court record be sent back."

7. In the light of the fact that the learned Sessions Judge has

already given a considerable relief to the petitioner by

reducing the fine amount from Rs.20.00 lakh to Rs.8.00

lakh, one cannot lose sight of the fact that the present

petitioner had paid this amount of Rs.12.00 lakhs to the

complainant/respondent No.2 almost after enjoying the

said amount for a decade and even if the rate of interest is

taken to be 6% on the principal amount would have

doubled. Therefore, in the light of this, to give any further

relief to the present petitioner by reducing the amount of

compensation from Rs.8.00 lakh to any lesser amount

would be only showing a misplaced sympathy to the

present petitioner. This is more so in the light of the fact

that there are lakhs of cases which are pending under

Section 138 of the Negotiable Instruments Act in different

forums of Delhi and it is in a very minuscule percentage

that the conviction is recorded. Therefore, even such cases

where an order of conviction is obtained by a party after a

considerable length of time to show a sympathy to the

convict, would be only showing a misplaced sympathy

which will not be proper.

8. In the light of the aforesaid facts, I feel that there is no

jurisdictional error or material irregularity which may

warrant interference by this Court. Accordingly, the

revision petition bearing Crl.Rev. P.No.336/2008 is

dismissed and the order of conviction and sentence

imposed by the learned Magistrate has been upheld, I find

no justification for allowing the Crl.Rev.P. No.388/2008

and thereby set aside the judgment dated 11th March, 2008

passed by the learned ADJ so far as the payment of

compensation amount is concerned. Normally, payment of

compensation is a matter of discretion and once that

discretion has been judicially exercised by the forum on

which it has been conferred, unless and until a material

irregularity or gross illegality is shown, the said discretion

should not be tampered with by the superior court merely

because it feels or comes to a different conclusion keeping

in view the facts and circumstances. Accordingly, the

Crl.Rev.P. No.388/2008 is disallowed.

V.K. SHALI, J.

July 30, 2010 skw