Delhi High Court
L N Chaturvedi vs State & Ors. on 11 April, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.Rev.P.No.515/2011 & Crl.M.A.No.2905/2011
% Judgment reserved on :20th March, 2012
Judgment delivered on:11th April, 2012
L N CHATURVEDI ..... Petitioner
Through : Mr.Manish Aggarwal & Ms.Vinny
Shangloo, Advs.
versus
STATE & ORS. ..... Respondents
Through: Ms.Rajdipa Behura, APP for
State/R-1.
Mr.D.Hasija & Ms.Sandhavi B. Saikia, Advs
for respondent Nos.2 & 3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. The instant petition being filed under Section 397 Cr. P.C., while
challenging the impugned order dated 05.10.2011 passed by learned
Additional Sessions Judge, Saket Courts, New Delhi whereby the
Criminal Appeal No.108/2010 preferred by petitioner was dismissed.
2. Further, the impugned judgment dated 29.06.02010 passed by
learned Additional Chief Metropolitan Magistrate, New Delhi and
order on sentence dated 26.07.2010 has also been challenged.
3. The facts in brief are that towards the partial discharge of
liability, the petitioner issued the cheque bearing No.173787 dated
31.08.2008 drawn on Canara Bank, East Patel Nagar, New Delhi for an
amount of `1,50,000/- in favour of respondent Nos.2 & 3. The said
cheque, on presentation was dishonoured on 08.09.2008 by the banker
of the petitioner on account of „Insufficient Funds‟. The petitioner kept
on avoiding the payment of the cheque and ultimately, resulted into
issuance of legal demand notice which was served upon the petitioner
on 20.10.2008. Since, the legal notice was not complied by the
petitioner, respondent Nos.2 & 3 instituted a Criminal Complaint Case
No.50/1/2008 under Section 138 Negotiable Instrument Act, 1881
(hereinafter referred as the said Act) against the petitioner before
learned Trial Court.
4. Before proceeding further, it would be in place to mention here
that since the matter concerning the liability and transactions between
the petitioner and respondent Nos.2 & 3 is pending trial, before learned
Additional District Judge; Delhi in CS No.145/2010. It is hereby make
it clear, this order is not referring to the respective stands and
contentions of both the parties. Since, the same are not being looked
into and the same is subject matter of learned Civil Court.
5. Finding prima facie case against the petitioner, learned Trial
Court issued summons against him vide order dated 04.12.2008.
6. On conclusion of trial, learned Additional Chief Metropolitan
Magistrate, New Delhi vide judgment dated 29.06.2010 held that the
petitioner is guilty for the offence under Section 138 of the said Act in
respect of said cheque for `1,50,000/-. Vide order on sentence dated
26.07.2010 the petitioner was sentenced to undergo imprisonment for
one year and fine of `15,000/- with compensation of `2,85,000/- to the
complainant. In default of payment of fine, simple imprisonment for
30 days.
7. Being aggrieved from the above judgment and order on sentence
respectively, petitioner has preferred Criminal Appeal No.108/2010
before learned Additional Sessions Judge. Vide order dated 05.10.2011
the appeal preferred by the petitioner was dismissed and he was taken
into custody.
8. It is how the petitioner has filed instant petition wherein the
findings of learned Trial Court as well as Appellate Court have been
sought to be reviewed.
9. At this juncture, it would be in place to mention that learned
counsel for the petitioner does not dispute the finding of learned Trial
Court regarding the conviction which was affirmed by learned
Appellate Court. As regards the quantum of sentence, fine and
compensation have been agitated before this Court and it is submitted
that the petitioner may be released on considering the period that is
already undergone, or the remaining imprisonment portion may be
modified into fine and compensation. Alternatively, he could be
released on good conduct by giving him the benefit as provided in the
Probation of offenders Act.
10. Learned counsel for the petitioner has relied upon the provisions
contained in Section 357 Cr.P.C. For the convenience same is
reproduced as under:-
"357. Order to pay compensation:-
(1) When a court imposes a sentence of fine or a
sentence (including a sentence of death) of which
fine forms a part, the court may, when passing
judgment order the whole or any part of the fine
recovered to be applied-
(a) In defraying the expenses properly incurred in
the prosecution,
(b) In the payment to any person of compensation
for any loss or injury caused by the offence, when
compensation is, in the opinion, of the court,
recoverable by such person in a Civil Court;
(c) When, any person is convicted of any offence
for having caused the death of another person or
of having abetted the commission of shelf all
offence, in paying in, compensation to the persons
who are, under the Fatal Accidents Act, 1855 (13
of 1855) entitled to recover damages from the
person sentenced for the loss resulting to them
from such death;
(d) When any person is convicted of any offence
which includes theft, criminal, misappropriation,
criminal breach of trust or cheating, or of having
dishonestly received or retained, or of having
voluntarily assisted in disposing of stolen
property knowing or having reason to believe the
same to be stolen in compensating any bona fide
purchaser of such property for the loss of the
same if such property is restored to the possession
of the person entitled thereto.
(2) If the fine is imposed in a case, which is
subject to appeal, no such payment shall be made
before the period allowed for presenting the
appeal his elapsed, or if an, appeal be presented,
before the decision of the appeal.
(3) When a court imposes a sentence, of which
fine does not form a part, the court may, when
passing judgment order the accused person to
pay, by way of compensation such amount as may
be specified in the order to the person who has
suffered any loss or injury reason of the act for
which the accused person has been so sentenced.
(4) An order under this section may also be made
by all Appellate Court or by the High Court or
Court of Session when exercising its powers of
revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter,
the court shall take into account any sum paid or
recovered as compensation under this section."
11. He further submitted that learned Trial Court erred while
imposing fine and compensation. In fact, a part or whole of the fine
amount may be awarded as compensation to the respondent Nos.2 & 3.
As such, the compensation amount has to be deducted from the fine
amount and ordered to be paid as compensation; and not otherwise as
has been done in instant case.
12. In addition, learned counsel has submitted that he was ready to
compound the matter with respondent Nos.2 & 3 at the time of pending
the matter before learned Trial Court which was dismissed vide order
dated 06.04.2009 while observing inter-alia, that respondent Nos.2 & 3
were not ready for compounding.
13. On the other hand, learned counsel for the respondent Nos.2 & 3
refuting the contentions of the petitioner, submitted that instant petition
under Section 397 Cr. P.C. is not maintainable.
14. He relied upon the provisions of Section 397 Cr.P.C; which runs
as under:-
"397. Calling for records to exercise powers of
revision:-
(1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding
before any inferior Criminal Court situate within
its or his local jurisdiction for the purpose of
satisfying itself' or himself as to the correctness,
legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity
of any proceedings of such inferior court, and may,
when calling for such record, direct that the
execution of' any sentence or order be suspended,
and if the accused is in confinement, that he be
released on bail or on his own bond pending the
examination of the record.
Explanation. All Magistrates, whether Executive
or Judicial, and whether exercising original or
appellate jurisdiction shall be deemed to be
inferior to the Sessions Judge for the purposes of
this subsection and of section 398.
(2) The powers of revision conferred by sub-
section (I) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry,
trial or other proceeding.
(3) If an application under this section has been
made by any person either to the High Court or to
the Sessions Judge, no further application by the
same person shall be entertained by the of the of
them."
15. Relying upon the above provision, he submitted that the revision
could be allowed, if the higher court finds an illegality, improprietary,
or any incorrectness in the order passed by learned Trial Court or
learned Appellate Court.
16. Learned counsel has relied upon Badal Gomes v. Martin Arinda
& Ors : 1997 Crl L J 561 wherein it has been held as under:-
"4. Under the Criminal Rules and Orders there is
no bar to move a revisional application
challenging orders more than one but that must be
of the same Court; but in the instant case, two
orders have been challenged under this revision.
One is the order of the learned Magistrate and
another is the order of the learned Sessions
Judge. That is not permissible under the law."
17. He also relied upon Sant Lal v. Krishan Lal : 1976 Crl L.J. 215
wherein this Court has observed as under:-
"The petitioner there upon filed a revision petition in the
Court of Sessions which was dismissed by the Additional
Session Judge, Delhi, by his order dated 28-02-1974. The
petitioner thereupon filed a revision petition in this court
for quashing the orders of the learned Magistrate dated
30-03-1973 and 09-07-1973. Safeer J., before whom this
revision petition came up for hearing on 26-04-1974,
noticed that the petitioner had filed a single revision
petition against two separate orders of the learned
Magistrate and the learned Judge expressed his view that
the two impugned orders of the learned Magistrate could
not be challenged by a single revision petition. The
petitioner thereupon withdrew the revision petition and
the same was dismissed as withdrawn with liberty to the
petitioner to invoke any other remedy open to him."
18. Reverting back to the instant case, learned counsel has submitted
the ingredients of Section 138 NI Act and in contrast thereof, he has
numerated the facts of instant case.
19. The accused is maintaining an account with a bank.
(i) The petitioner / accused was maintaining the Account
No.18756 in Canara Bank, East Patel Nagar, New Delhi
20. A cheque has been drawn on the said account.
(ii) The petitioner / accused in partial discharge of their debt
issued a cheque bearing No.173787 dated 31.08.2008 for
sum of `1,50,000.00 from his account No.18756 of
Canara Bank, East Patel Nagar, New Delhi.
21. The drawing of the said cheque is for making payment of any
amount of money to another person from out of that account.
(iii) The cheque has been drawn by the petitioner / accused "L
N Chaturvedi" in favour of the respondent / complainant
"Kanwal Kishore" for partial discharge of rent of the
property bearing No.24/69-70, West Patel Nagar, New
Delhi, which was taken by him and his wife on rent from
the respondent / complainant vide registered rent deed
dated 5th August, 2003.
22. There is a legally enforceable debt or other liability of the
person.
(iv) The petitioner/accused has to pay a sum of `3.8 Lakh as
arrears of rent on the date of issuance of the cheques in
question. The same is still due and payable as such, the
petitioner / accused is not paying the rent of the aforesaid
property.
23. The drawing of the cheque is for the discharge (in whole or in
part) of the said debt or other liability.
(v) The petitioner / accused had issued the aforesaid cheque in
partial discharge of his liability to pay the arrears of rent.
24. The said cheque is presented in the bank for encashment within
the period of its validity.
(vi) The said cheque has been presented on 06th of September,
2008, that is within the prescribed period of time.
25. The said cheque is returned unpaid by the bankers of the
said person either:-
(vii) due to insufficiency of funds in the account maintained
with the bank; or
(viii) it exceeds the amount arranged to be paid from that
account by an agreement made with the bank.
26. The payee / holder of the cheque makes a demand of the amount
of the cheque by giving a notice in writing, within thirty days of the
receipt of the information of dishonour of the said cheque.
(ix) The respondent/complainant demanded the cheque
amount vide legal notice dated 06.10.2008 which was
duly served to the petitioner / accused.
27. The drawer of the cheque fails to make the payment of the said
amount of the cheque within fifteen days of the receipt of the said
notice of demand and whereby cause of action arises.
(x) The petitioner / accused did not pay the cheque amount
within the prescribed period of 15 days.
28. A complaint is made in writing to the Court within one month of
the date on which the cause of action arises.
(xi) The complaint has been filed well within the prescribed
period of limitation i.e. within one month of the date on which
the cause of action arises.
29. Learned counsel for the respondent Nos.2 & 3 submitted that the
petitioner has issued the cheque in question towards the part discharge
of his liability and learned Trial Court has imposed only on year while
taking a lenient view whereas the maximum punishment provided in
the said Act is two years imprisonment.
30. He further relied upon the basic ingredients of Section 138 of the
said Act and the facts pleaded and proved during the evidence before
learned Trial Court.
31. Learned counsel appearing on behalf of respondent Nos.2 & 3
submitted, there is a legally enforceable debt or other liability of the
accused towards the complainant. The petitioner/accused was a tenant
of the respondents No.2 & 3/complainants who had given their
premises on rent to the petitioner/accused vide rent deed dated 1 st of
August, 2003. The petitioner/accused did not pay the rent to the
respondents No.2 & 3/ complainants from 1st of June, 2006 onwards.
Ultimately, when the respondent Nos.2 & 3/complainant insisted the
petitioner/accused to vacate the tenanted premises, in partial discharge
of their liabilities, the petitioner/ accused had issued to the respondent
Nos.2 & 3/ complainants a cheque bearing No. 173787, dated 31 st of
August, 2008 for a sum of `1,50,000/-, drawn on A/c No.18756 of
Canara Bank, East Patel Nagar Branch, New Delhi-110008, which is
the subject matter of the present case.
Though note relevant but necessary to mention here that
Ex.DW1/X-1, legal notice dated 24.04.2007 issued by the respondents
No.2 & 3/complainants for vacating the tenanted premises.
32. Learned counsel relied upon the testimony of the petitioner
before learned Trial Court wherein he deposed as under:-
"I am residing in this house since 05.08.2003, this
agreement was for a period of 11 months only.
Thereafter I remained in the tenanted property and
I am in the said property even till today. My rent
agreement was extended for a further period of 10
years. It was an oral extension of agreement. I
have not vacated the tenanted property in response
to notice Ex.DW1/X-1. I had handed over the
cheque in question of `1,50,000/- on 31.08.2008 to
the complainant."
33. Learned counsel further submitted that in discharge to his
aforesaid liability, the petitioner/accused had issued the cheque in
question bearing No.173787, dated 31st August, 2008, drawn on
account No. 18756 of the Canara Bank, East Patel Nagar, New Delhi;
and the same had dishonored upon the presentation for encashment due
the reason "funds insufficient"
The original cheque bearing No.173787, dated 31.08.2008 is
Ex.CW1/A, deposit slip dated 06.09.2008 is Ex.CW1/B, return memo
is Ex.CW1/C.
34. He further submitted that after the dishonor of the cheque, the
respondents No.2 & 3/complainants had issued a notice dated 06 th
October, 2008, demanding therein the amount of the cheque. The said
notice was sent through registered post dated 08.10.2008 as well as
through UPC and through couriers. Despite the receipt of the notice the
petitioner/accused failed to make the payment of the cheque amount
within the stipulated period of time.
Legal demand notice is Ex.CW1/D, regd. post receipts are
Ex.CW1/E & Ex.CW1/E-2, the courier receipts are Ex.CW1/F-1
& Ex.CW1/F-2 & the acknowledgement cards are Ex.CW1/G-1.
35. Learned counsel for the respondent Nos.2 & 3 also submitted
that learned trial court has duly appreciated the above mentioned facts
and after satisfying/relying on the documents placed on record, and
rightly convicted the petitioner/accused for the commission of offence
under Section 138 of the said Act and the accused has been sentenced
to pay a compensation of `2,85,000/- to the respondents No.2 & 3/
complainants and also to undergo simple imprisonment for a period of
one year.
36. On the grounds for dismissal of instant petition, he submitted as
under:-
Ground-1 The accused has not denied the issuance of the cheque and
the tenancy but tried to raise unnecessary and illegal disputes.
However, even till date the petitioner/accused has not cleared his debt
and liability and is living in the tenanted premises of the respondents
No.2 & 3/ complainants without paying any rent to the respondents
No.2 & 3/ complainants.
(i) The above said contention was duly appreciated by the learned
trial court at page No.5 of the Judgment dated 29.06.2010, as under:-
"In the present case, it is not disputed that the
cheque was issued for a sum of `1,50,000/- and in
evidence no document of alleged debts were
placed on record despite their alleged existence as
per accused himself. Hence, the court can presume
that accused was liable to pay a sum of `1,50,000/-
to the complainant."
"He stated that he had delivered rent to the
complainant through court but he could not place
any document in this regard and having regard to
these facts, I do not hesitate in believing what the
complainant is saying is true."
37. Learned counsel relied upon the evidence of the petitioner as
under:-
"I have cleared and paid my rent of the tenanted
property to the complainant till October 2008. I
had tendered the rent to the complainant through
court. I do not remember the name of the court
through which I had tendered to the complainant
the rent."
38. He submitted, the petitioner/accused has failed to pay the cheque
amount within 15 days of the receipt of the legal notice, but has tried to
raise unnecessary dispute by issuing the false and frivolous reply to
the legal notice dated 06.10.2008. The reply of legal notice dated
06.10.2008 is Ex.DW1/1.
39. Learned counsel further submitted that the respondents No.2 &
3/ complainants had made a complaint with respect to the dishonor of
the aforesaid cheque well within one month of the date on which the
cause of action had arisen. The respondents No.2 & 3/ complainants
has placed on record all the documents before the Ld. Trial court to
prove his case beyond reasonable doubts. The petitioner/accused did
not make any objection on the said documents during the cross
examination of the complainant i.e. CW1.
40. Learned counsel also submitted that there is no illegality or
impropriety in the findings of the learned Trial Court as well as of
learned Appellate Court. Moreover, the petitioner/accused has not
raised any legal error either in the judgment passed by the learned Trial
Court or by the learned Appellate Court. Hence, in the situation, where
the impugned orders does not suffer from failure of justice or error but
are based on materials on record, the revisional powers cannot be
invoked to interfere with it.
41. He also submitted regarding the sustainability of orders passed
by learned Trial Court that the Trial Court, after hearing of the
arguments of both the parties and seeing the conduct of the
petitioner/accused, has rightly sentenced the petitioner / accused to pay
a compensation for a sum of `2,85,000/- to the respondents No.2 & 3 /
complainants equivalent to double the amount of the cheque and also
to undergo simple imprisonment for a period of one year. As such,
despite knowing his defaults petitioner/accused did not pay even a
single penny to the respondents No.2 & 3 / complainants and even
illegally residing in the property of the respondents No.2 & 3 /
complainants as a trespasser without paying any rent/money to the
respondents No.2 & 3 / complainants.
42. The order on sentence dated 26.07.2010 of the Ld. Trial Court is
based on the well settled law of the Hon'ble Supreme Court and High
courts; and the conduct of the petitioner/accused in the following
facts:-
(a) The petitioner/accused has not paid rent of even a single month
from 01.06.2007 to till date.
(b) The petitioner/accused is illegally occupying the property of the
respondents No.2 & 3 / complainants even after the termination of
tenancy.
(c) As on date, the petitioner/accused is liable to pay `11,85,687/- to
the respondent.
(d) Vide order on sentence dated 26th of July, 2010, the learned trial
Court had sentenced the petitioner/accused to undergo imprisonment
for one year and to deposit `2,85,000/- as compensation to the
complainant and fine of `15,000/- IDSI 30 days. However, till date the
respondent/accused has neglected and failed to deposit the
compensation amount to the respondents No.2 & 3 / complainants.
(e) The respondents No.2 & 3 / complainants have filed a suit for
ejectment and recovery of rent and mesne profits against the petitioner
/ accused and the same is pending before the Court of Sh. Pankaj
Gupta, ADJ& ASJ, Tis Hazari Courts, Delhi. However, the petitioner /
accused is deliberately delaying the proceedings of the said case as he
is enjoying the possession of the suit property. Due to the mischievous
conduct of the petitioner / accused, the learned court was constrained to
impose cost upon the petitioner / accused on several occasions. On
08.02.2012, learned Additional District Judge had passed a detailed
order, which clearly reflects the conduct of the petitioner / accused.
43. Controverting the plea of the petitioner for probation, he
submitted that no benefit of probation could be exceeded to the
petitioner because the plea as to grant of probation is to be taken at the
earliest opportunity. However, in the instant case the petitioner/
accused had neither pleaded the benefit of probation at the time of
arguments on sentence before the learned trial Court nor before the
learned Appellate Court. Even otherwise, the discretion provided by
the proviso has to be exercised according to the circumstances of each
case. Misplaced leniency and sympathy for the petitioner/ accused shall
defeat the very object for which punishments are provided. Further, the
"conduct" of the petitioner/ accused is one of the important factor
which has to be considered while granting the benefit of probation to
the petitioner / accused. In the instant case, the conduct of the
petitioner cannot be considered appropriate for the grant of probation.
44. To strengthen his contentions, he relied upon Gautam Sood v.
State(National Capital Territory of Delhi): 2007 (138) DLT 30
wherein it has been held as under:-
"6. This Court in revisional jurisdiction under
section 397 is not expected to sit as a second
Appellate Court and scrutinize minuet of findings.
Its jurisdiction is of a limited and circumscribed
nature and more concerned with the approach of
the Courts and the regularity of the proceedings.
Upon a consideration of the materials on record, I
am satisfied that no interference is called for in the
exercise of such jurisdiction"
45. In State of Uttar Pradesh v. Chandrika :(1999) 8 SCC 638, the
Hon‟ble Apex has held as follows :-
"8. ...If the accused confesses his guilt, an
appropriate sentence is required to be imposed.
Further, the approach of the court in appeal or
revisions should be to find out whether the accused
is guilty or not on the basis of the evidence on
record. If he is guilty, an appropriate sentence is
required to be imposed or maintained. If the
petitioner or his counsel submits that he is not
challenging the order of conviction, as there is
sufficient evidence to connect the accused with the
crime, then also the court's conscience must be
satisfied before passing the final order that the
said concession is based on the evidence on
record. In such cases, sentence commensurating
with the crime committed by the accused is
required to be imposed. Mere acceptance or
admission of the guilt should not be a ground for
reduction of sentence. Nor can the accused
bargain with the court that as he is pleading guilty,
the sentence be reduced."
46. Learned counsel also relied upon State of U.P. v. Kishan : 2004
(3) JCC 1875, wherein it has been observed as under:-
"7......any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely
on account of lapse of time in respect of such
offences will be result-wise counterproductive in
the long run and against societal interest which
needs to be cared for and lengthened by string of
deterrence interest in the sentencing system".
8. The Court will be failing in its duty if
appropriate punishment is not awarded for a crime
which has been committed not only against the
individual but also against the society to which the
criminal and victim belong punishment to be
awarded for a crime must not be irrelevant but it
should confirm to and be consistent with the
atrocity and brutality with the crime has been
perpetrated, the enormity of the crime warranting
public abhorrence and it should response to the
society's cry for justice against the criminal."
47. In Shailesh Jasvantbhai and Another v. State of Gujarat and
Others : (2006) 2 SCC 359, the Apex Court has held as follows:-
"8.....undue sympathy to impose inadequate
sentence would do more harm to the justice system
to undermine the public confidence in the efficacy
of law, and society could not long endure under
such serious threats. It is, therefore, the duty of
every court to award proper sentence having
regard to the nature of the offence and the matter
in which it was executed or committed, etc."
48. He submitted that in Suganthi Suresh Kumar v. Jagdeeshan :
(2002) 2 SCC 420, the Hon‟ble Supreme Court has held as follows :-
"12. ...in case where the amount covered by the
cheque remained unpaid it should be the lookout of
the trail magistrates that the sentence for the
offence under section 138 should be such a nature
as to give proper effect to the object of the
legislation. No drawer of the cheque can be
allowed to take dishonor of the cheque issued by
him light-heartedly. The very object of enactment
of the provisions like section 138 of the act would
stand defeated."
49. After hearing both learned counsel for parties, I am of the view
that the petitioner deserves no leniency as he has been dousing the
respondents throughout. Even otherwise, the discretion of the Court
has to be exercised according to the circumstances of each case.
Unnecessary leniency and sympathy shall defeat the very object for
which the punishments are provided. The conduct of the petitioner /
accused is one of the important factor which has to be considered while
extending the benefit of Probation of Offenders Act or the period
already undergone, as prayed before this Court by the petitioner.
50. Neither he did deposit the cheque amount, during trial nor before
the Appellant Court. He continued to enjoy the amount till date and the
respondent Nos.2 & 3 are chasing him throughout. This Court is third
court for them. Firstly, they could not get their due amount; secondly
for the same contested the litigation before three Courts. Therefore,
petitioner do not deserve for any leniency.
51. Consequently, Revision Petition is hereby dismissed.
52. In view of above order, Crl.M.A. No.2905/2012 does not require
further adjudication and accordingly stands disposed of.
53. Trial Court Record be remitted back henceforth.
54. No order as to costs.
SURESH KAIT, J
APRIL 11, 2012
Mk
