Shakuntala Pilania vs P.R.Gupta Etc.
2013 Latest Caselaw 1728 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Reserved on: March 15, 2013
                                      Pronounced on: April 17, 2013

+                            CRL.REV.P. 581/2007

       SHAKUNTALA PILANIA                                   ..... Petitioner
                        Through:                 Mr.B.S. Nain, Advocate
                             versus

       P.R. GUPTA ETC.                                     .....Respondent
                                      Through:   Nemo.

+                            CRL.REV.P. 582/2007

       KARAN SINGH PILANIA                            ..... Petitioner
                         Through:                Mr.B.S. Nain, Advocate
                             versus

       P.R. GUPTE ETC.                                .....Respondents
                                      Through:   Nemo.

       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                             JUDGMENT

%

1. With the consent of both the sides, above captioned two petitions were heard together and are being disposed of by this common judgment.

2. Common order of 10th July, 2007 impugned in the above captioned two petitions, upholds conviction and sentence of simple imprisonment for a period of six months and compensation of `4,10,000/-; `6,60,000/-

Crl.Rev. P. No. 582/2007 and `3,30,000/- awarded to complainant and in default thereof, petitioners have been ordered to undergo simple imprisonment for 45 days for the offence under Section 138 of the Negotiable Instruments Act, 1881 in three complaint cases relating to dishonouring of cheques of `2,00,000/-, `1,20,000/-, `85,000/-, `80,000/-, and `50,000/- in all.

3. Impugned judgment was assailed by petitioners' counsel by contending that respondent's complaint is not maintainable as the cheques in question were issued by petitioner- K.S. Pilania as Director of Transport Wings (P) Ltd. and above-said company has not been impleaded as an accused. It was next contended that there was no existing debt or liability and so the ingredients of Section 138 of the Negotiable Instruments Act, 1881 were not attracted, rendering impugned conviction bad in law.

4. At the hearing, petitioners' counsel had placed reliance upon letter (Ex.DW3/A) to point out that Rishi Bansal (DW-2), an employee of petitioners, has admitted that he had given few cheques signed by petitioner-K.S. Pilania, to different people and it was contended that aforesaid letter goes to prove that Rishi Bansal (DW-2) had misused blank signed cheques issued by petitioner, which includes the cheques in question, and defence of petitioners' stands proved from the fact that petitioners had lodged an FIR regarding misuse of the blank cheques and thus, impugned conviction of petitioners' is rendered unsustainable. With much vehemence, it was argued on behalf of petitioner-Shakuntala Pilania that she had not signed the cheques in question and was not aware of any dealing of respondent with petitioner-K.S.Pilania and so, her conviction is patently unwarranted. Lastly, it was contended on

Crl.Rev. P. No. 582/2007 behalf of petitioners that the statutory notice was sent at the company's address, which was closed, and so impugned judgment deserves to be set aside. In support of above submissions, reliance was placed upon decisions in Aneeta Handa Vs. M/s Godfather Travels & Tours Pvt. Ltd. 2012 Crl.L.J.2525; John K. John Vs. Tom Varghese & Anr. 2008 Crl.J. 434; M/s Pine Product Industries & Anr. Vs. M/s R.P. Gupta & Sons & Anr. 2007 [1] JCC [NI] 28; Shanker Menon Vs. State of West Bengal 2012 Crl.L.J.104; Madanlal Taparia & Anr. Vs. Bank of Rajasthan Ltd. & Anr. 2005(2) RCR (criminal); Suresh Vs. Manoj 2003 (3) RCR (Criminal); Goa Plast Pvt. Ltd. Vs. Shri Chico Ursula D'souza 1996 Crl.J. 2344.

5. After having heard petitioners' counsel and upon going through brief written submissions and the decisions cited as well as the impugned order and the record, I find that the defence of petitioners of their being not served with statutory notice at their company's address is unwarranted as in the FIR lodged in September, 2004 by petitioner- K.S.Pilania, the company's address given is the same at which the statutory notice was sent in registered AD cover and it was deliberately returned with remarks "left without address". Appellate court was right in concluding that petitioners' company had not been winded up and so, it was a valid service of statutory notice.

6. Non-impleadment of Transport Wings (P) Ltd. as an accused would not be fatal for the reason that petitioners' counsel had asserted at the hearing that both the petitioners were only two directors and Transport Wings (P) Ltd. had shut down its business. However, petitioner-K.S. Pilania had admitted in his evidence that when Transport

Crl.Rev. P. No. 582/2007 Wings (P) Ltd. was doing its business, it was being looked after by his wife i.e. petitioner-Shakuntala Pilania as he was not able to come daily to look after the business of Transport Wings (P) Ltd.

7. From the letter (Ex.DW3/A), it cannot be inferred that petitioner- K.S. Pilania had handed over blank cheques to Rishi Bansal (DW-2) who, in his deposition, has unequivocally stated that petitioner-K.S. Pilania used to sign the cheques only after they were duly filled in by him on the instructions of petitioner-K.S. Pilania. Therefore, on this account petitioners' conviction cannot be faulted.

8. In the face of the afore-referred deposition of petitioner-K.S. Pilania, it cannot be said that petitioner-Shakuntala Pilania had no role in conducting the business of Transport Wings (P) Ltd. As regards there being no existing debt or liability, it has to be kept in mind that it was a friendly loan transaction and in view of the close relationship between the parties, there could not have been any documentary proof of the transaction in question. The deposition of respondent- P.R. Gupta (CW-

1) clearly establishes the loan transaction in question and so, it cannot be said that ingredients of Section 138 of the Negotiable Instruments Act, 1881 are lacking. Thus, finding no illegality or infirmity in the impugned order, the conviction of petitioners' is maintained. However, on the quantum of sentence, considering that petitioners are senior citizens and their business had closed down, this Court is of the considered opinion that after having faced the agony of these proceedings since the year 1999, they ought not to be sent behind bars to serve out the remainder of substantive sentence. As the offence under Section 138 of the Negotiable Instruments Act, 1881 is punishable with fine alone also, therefore, the

Crl.Rev. P. No. 582/2007 substantive sentence imposed upon petitioners is reduced to the period already undergone by them i.e. of about five months, while the compensation awarded is maintained.

9. Both these petitions are disposed of in aforesaid terms.

(SUNIL GAUR) JUDGE APRIL 17, 2013 s

Crl.Rev. P. No. 582/2007