National Fertilizers Ltd. vs Rajnigandha Enterprises Pvt. ...
2013 Latest Caselaw 1804 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          Judgment Reserved on: April 02, 2013
                          Judgment Pronounced on: April 22, 2013

+                         CRL.M.C. No.1792/2008

     NATIONAL FERTILIZERS LTD.             .....Petitioner
                   Through:  Mr. Ram Prakash Gupta,
                            Advocate

                          Versus
     RAJNIGANDHA ENTERPRISES PVT. LTD. & ORS.
                                             .....Respondents

Through: Ms. Seema Gulati, Advocate for respondents No. 2 & 3.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

% JUDGMENT

1. Challenge to the impugned order of 16th February, 2008 is on the ground of inadequacy of sentence imposed upon respondents-accused. In the impugned order, the sentence of fine imposed upon respondent No.1 is of `2.50 crores and upon realisation of fine, `2.30 crores is awarded to petitioner- complainant and respondent No.2 has been sentenced to six months imprisonment with fine of `4.50 crores and in default of payment of fine, he has to undergo simple imprisonment of three months and third respondent has been sentenced to fine of `5,000/- only.

2. At the hearing, it was urged by petitioner's counsel that the purpose of incorporating Section 138 of The Negotiable Instruments Act, 1881 is

Crl.M.C. No. 1792/2008 Page 1 to put a check and restriction on a person issuing cheques without intention to honour them and it was submitted that undue leniency has been shown to respondent-accused and adequate sentence ought to be imposed, as respondent-accused are not paying the compensation amount despite passing of the impugned order and suffering a decree for `2.25 cores, in respect of which execution proceedings are pending. It was pointed out that respondent No.3- accused had admitted before the Revisional Court that she was not a mother of a minor child but still her sentence of nominal fine of `5,000/- only is maintained and there is nothing on record to show that she was suffering from any ailment. Reliance was placed upon Apex Court decision in State of M.P. Vs. Narmada Bachao Andolan (2011) 7 SCC 639 to contend that respondent No.3 had misled the trial court to escape the rigors of substantive sentence and so, she ought to be suitably punished. Reliance was also placed upon decision in Suganthi Suresh Kumar Vs. Jagdeeshan (2002) 2 SCC 420 to stress that a flea-bite sentence ought not to be imposed for the offence under Section 138 of The Negotiable Instruments Act, 1881. Thus, awarding of adequate sentence is sought in this petition.

3. Though respondents have been duly served but at the final hearing, counsel for respondents No. 2 & 3 only had appeared who opposed this petition on the preliminary objection of it being not maintainable, as this petition is said to be second revision petition in the garb of a petition under Section 482 of the Cr.P.C. To assert so, reliance is placed upon decisions in Vijay Kumar Vs. Deputy Director General of Foreign Trade 2003 (156) E.L.T. 827 (Del.); Laxmi Bail Patel Vs. Shyam Kumar Patel JT 2002 (3) SC 409. To highlight what should be the adequate sentence,

Crl.M.C. No. 1792/2008 Page 2 reference was made by contesting respondents' counsel to decisions in K.A. Abbas H.S.A. Vs. Sabu Joseph (2010) 6 SCC 230; D. Purshotama Reddy & Anr. Vs. K. Sateesh AIR 2008 SC 3202; Sivasuriyan Vs. Thangelu (2004) 13 SCC 795; Anil Kumar Goel Vs. Kishan Chand Kaura AIR 2008 SC 899 & Kaushalya Devi Massand Vs. Roopkishore Khore 2011 3 SCR 879. According to learned counsel for respondents No. 2 & 3, this petition is not maintainable and in any case, there is no illegality or irregularity in the impugned order.

4. On the aspect of maintainability of second revision petition in the garb of a petition under Section 482 of the Cr.P.C., Apex Court in R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516 at page 522 has reiterated as under:-

"14. ... though the revision before the High Court under sub-section (1) of Section 397 is prohibited sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below."

5. In view of the above noted legal position, this petition cannot be out rightly thrown out by holding that second revision petition is not maintainable. It is required to be seen whether the impugned order results in miscarriage of justice or not.

6. Having considered the submissions advanced and the case law cited and on perusal of the impugned order as well as the trial court order,

Crl.M.C. No. 1792/2008 Page 3 it becomes evident that the offence under Section The Negotiable Instruments Act, 1881 is punishable with a substantive sentence or fine or with both. That is to say, the offence in question is punishable with fine alone also.

7. A scrutiny of the impugned order reveals that respondent No.3 has no where admitted that her child was not minor at the time when she was sentenced in this case. It is not in dispute that respondent No.3 had not signed the cheque in question and her husband who is respondent No.2, has already suffered the substantive sentence imposed. In the facts and circumstances of this case, I find that the impugned revisional order does not result in miscarriage of justice and so this revision petition is dismissed.

                                                        (SUNIL GAUR)
                                                            Judge
APRIL 22, 2013
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Crl.M.C. No. 1792/2008                                              Page 4