Delhi High Court
Ashok Chachra vs The State on 4 August, 2011
Author: Suresh Kait
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on : August 4, 2011
+ CRL.M.C. 2387/2011
ASHOK CHACHRA ..... Petitioner
Through: Mr. Satish Agarwal, Adv.
Versus
THE STATE ..... Respondent
Through: Ms. Rajdipa Behura, APP.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in the YES
Digest?
SURESH KAIT, J. (Oral
CRL. M.A. 8701/2011 (Exemption)
Allowed subject to all just exceptions.
CRL.M.C. 2387/2011
1. Admit. Issue notice. Ms. Rajdipa Behura, learned APP for
State accepts notice on behalf of State.
2. It is submitted by learned counsel for the petitioner that
a complaint under section 138 of the Negotiable Instruments
act was filed in respect of dishonor of cheque for a sum of
ì.8,21,600/- against the accused Bharat Bhushan. The accused
Bharat Bhushan was convicted by learned Metropolitan
Magistrate vide order dated 24.11.2004 to undergo SI for 1
year and fine of Rs.5000/- for the offence punishable under
Section 138 of Negotiable Instruments Act, 1881.
3. Vide order dated 28.02,2011 in Criminal Revision No.
88/2010, the sentence was modified and the substantive
sentence of one year awarded by the learned Trial court was
done away with and the fine was enhanced to Rs.16,40,000/-.
4. Further, it was directed that the respondent shall deposit
a fine of Rs.16,40,000/- and the entire fine amount shall be
given to the revisionist/Sh. Ashok Kumar Chachra as
compensation. In default of payment of fine, respondent shall
undergo simple imprisonment for one year.
5. Respondent submitted before the Revisional Court that
he may be allowed to pay fine/compensation in four
installments for Rs.4,10,000/- each.
6. Accordingly, it was further directed that the fine amount
may be given by the respondent directly to the revisionist and
one week's time was granted to respondent to pay the first
installment of compensation before the learned Trial court i.e
on 07.03.2011.
7. Thereafter, Bharat Bhushan filed a Revision Petition (Crl.)
No. 126/2011 before this court, wherein the court granted stay
on the operation of the impugned order dated 28.02.2001
passed by the learned Additional Sessions Judge till
19.05.2011 subject to the deposit of Rs.10 Lacs with the
Registrar General of this court within four weeks.
8. Vide order dated 05.07.2011 in Crl. Rev. 126/2011 filed
by Bharat Bhushan, the Crl. M.B. 509/2011 was dismissed and
the order passed in the said Crl. M.B. for staying the operation
of impugned order dated 28.02.2001 passed by the learned
Additional Sessions Judge was vacated. A Dasti copy of the
order was supplied to the parties.
9. On 06.07.2011, an application under Section 424 of
Cr.P.C. and another application under Section 421 Cr.P.C for
sentence of imprisonment in default to be carried out and for
issuance of warrants respectively were moved before the
concerned Metropolitan Magistrate along with copy of the
order passed in Crl. Rev. 126/2011 dated 28.02.2001 passed
by the learned Additional Sessions Judge.
10. Learned Metropolitan Magistrate vide order dated
06.07.2011 directed a court notice to be issued to the
convict Bharat Bhushan, returnable for 29.07.2011. The
order is reproduced hereunder:-
"06.07.2011
Present : Sh. Sushil Kaushik Ld. Counsel for the
complainant.
None for the accused.
Vakalatnama filed. It be taken o record. The accused
was convicted by this court vide order dated 22.11.2004.
Against the said order of conviction accused moved the
Sessions Court by way of appeal, which was dismissed vide
order dated 28.02.2011 of the learned ASJ and dismissing the
same the Sessions Court was pleased to modify the order on
sentence from that of fine fo Rs.5,000/- and one year
imprisonment to fine of Rs.16,40,000/- and one year simple
imprisonment, in case of default in payment of said fine.
The order of the Sessions court was challenged by the
accused by moving a revision petition before the Hon'ble High
Court of delhi.
While admitting the said revision petition (Crl. Rev. P.
126/2011) was pleased to stay the operation of the order
dated 28.02.2011 passed by Sh. Vinay Kumar Khanna, Ld. ASJ
till the next date of eharing i.e 19.05.2011, this stay was
conditional i.e it was subject to the petitioner/accused
depositing Rs.10,00,000/- with the Registrar general of the
High Court within four weeks from 19.05.2011.
The said stay was vacated by the Hon'ble High Court
vide its order dated 05.07.2011.
Copy of the said order has been placed on record by the
ld. Counsel for the complainant.
Issue court notice to the convict for 29.07.2011.
Court notice be given dasti.
(NIPUN AWASTHI)
MM(01) South, NI Act
New Delhi 06.07.2011."
11. The learned counsel for the applicant/Sh. Ashok Kumar
Chachra further submits that the trial court has issued court
notice to the convict instead of issuing non bailable warrants
against the convicts.
12. In support of his contentions, the learned counsel for the
petitioner has relied upon the Judgment of Allahbad High court
decided on 20.04.1960 in a case of Trilok Chand v. C.N.
Srivastava and Ors.. AIR 1961 ALL 88, wherein in para 2, the
Court has observed as follows:-
"There is no force in the applicant's contention
that Sri C.N. Srivastava had no jurisdiction to
pass the order of levy of fine and that he could
not do so without issuing a notice to the
applicant. Sri. C.N. Srivastava only executed the
order passed by his predecessor, Sri K.C. Sinha.
The order of Sri K.C. Sinha was bound to be
executed and since Sri C.N. Srivastava took up all
the work left by him he was competent to
execute the order. No question of any hearing or
of issuing a notice to the applicant arises because
there is no law that requires that a notice should
be given before a warrant of levy of fine is issued
against 'the person' sentenced to fine. The
applicant was bound to pay the fine at the rate of
Rs.100/- per day during which the offence
continued. If he disputed that the offence
continued or that it was continued for so many
days he "could object to the attachment of his
property but the attachment does not become
illegal' because he was not heard before the
warrant was issued".
13. I find force in the submissions made by learned counsel
for the petitioner and in the interest of justice, I direct the trial
court to ensure the arrest of convict/Sh. Bharat Bhushan in
accordance with law.
14. Crl. M.C. 2387/2011 is disposed of accordingly.
15. Dasti under the signatures of Court Master.
SURESH KAIT, J
AUGUST 04, 2011
j/RS
