M/S. Linkers Associates vs Lalit Fabrics P. Ltd. & Ors.
2011 Latest Caselaw 5561 Del

*             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

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

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

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.

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

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

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