Delhi High Court
Shiv Shakti Metal Works vs M/S Thukral Steel Corp. on 5 April, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : FEBRUARY 28, 2018
DECIDED ON : APRIL 05, 2018
+ CRL.REV.P. 841/2017 & Crl.M.B.1988/2017
SHIV SHAKTI METAL WORKS
..... Petitioner
Through : Mr.Roshan Santhalia with Mr.Ankit
Miglani, Advocates.
versus
M/S THUKRAL STEEL CORP.
..... Respondent
Through : Mr.Sanjay Abbot with Mr.Ankit
Agarwal, Advocates.
+ CRL.REV.P. 842/2017 & Crl.M.B.1989/2017
M/S R K INDUTRIES
..... Petitioner
Through : Mr.Roshan Santhalia with Mr.Ankit
Miglani, Advocates.
versus
M/S THUKRAL STEEL CORP
..... Respondent
Through : Mr.Sanjay Abbot with Mr.Ankit
Agarwal, Advocates.
Crl.Rev.P.841/2017 & connected matters Page 1 of 6
+ CRL.REV.P. 846/2017 & Crl.M.B.1955/2017
SHIV SHAKTI METAL WORKS
..... Petitioner
Through : Mr.Roshan Santhalia with Mr.Ankit
Miglani, Advocates.
versus
M/S THUKRAL STEEL CORP.
..... Respondent
Through : Mr.Sanjay Abbot with Mr.Ankit
Agarwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P GARG, J.
1. Revision petitions No.841/2017 and 846/2017 have been
preferred by the petitioner-Shiv Shakti Metal Works through its
proprietor Rajesh Chaudhary to challenge the legality and correctness of
judgments dated 30.10.2017 of learned Addl. Sessions Judge in CA
Nos.92/17 and 93/2017 respectively whereby findings of the learned
Metropolitan Magistrate in CC Nos.22287/16 and 22185/16 regarding
conviction under Section 138 Negotiable Instruments Act were upheld.
2. Revision petition 842/2017 has been filed by the petitioner-M/S
R.K.Industries through its proprietor Rajesh Chaudhary to impugn the
legality and correctness of a judgment dated 30.10.2017 of learned
Addl. Sessions Judge in CA No. 96/2017 endorsing the findings of the
learned Metropolitan Magistrate in CC No.22229/16 regarding
conviction under Section 138 Negotiable Instruments Act.
3. The revision petitions are contested by the respondent.
4. I have heard the learned counsel for the parties and have
examined the file. The petitioners were convicted under Section 138
Negotiable Instruments Act by the learned Metropolitan Magistrate and
they were awarded various prison terms with fine.
5. Petitioners' counsel urged that the trial court did not appreciate
the evidence in its true and proper perspective. The respondent was
unable to establish or prove if cheques in question were issued by the
petitioners towards discharge of any liability. The respondent did not
produce any document, whatsoever, to show if any goods or articles
were ever delivered to the petitioners pursuant to the issuance of the
cheques. It is further urged that the cheques in question were issued as
'security' and the respondent failed to return them despite demand.
6. Learned counsel for the respondent urged that no sound reasons
exist to interfere in the concurrent findings of the courts below.
7. It is not in dispute that the cheques in question were issued by the
petitioners in favour of the respondent. These cheques were of various
dates and amounts. Nothing has come on record to show if these
cheques were issued by the petitioners in favour of the respondent as
'security'. It has come on record that there were business transactions
between the petitioners and the respondent for the last about more than
four years. It is further admitted that the respondent used to deliver
goods to the petitioners on their placing orders for that. Rajesh
Chaudhary in the examination admitted that certain amount was due
from him and his wife. He volunteered to add that approximately one
or two lacs were due towards him. Apparently, the petitioners had
business dealings with the respondent and pursuant to that the cheques
in question were issued by him.
8. It has come on record that the respondent was in possession of
relevant documents and had offered to produce them if so required. The
petitioners did not insist for production of those documents. Adverse
inference is to be drawn against the petitioners for not insisting for the
production of those documents. Moreover, the petitioners themselves
did not produce any document, whatsoever, to show as to how and in
what manner the cheques in question were issued in favour of the
respondent. The petitioners have admitted about the receipt of legal
notice and no response to it was given by them. The courts below have
rightly relied upon presumption under Section 118 of Negotiable
Instruments Act in favour of the issuance of cheques in question
towards the legal liability.
9. The findings of the courts below based upon fair appreciation of
evidence deserve no intervention and are confirmed.
10. In revision petition No.841/2017 the petitioner has been
sentenced to undergo simple imprisonment for six months with
compensation amount of twice the cheque amount i.e.`60,00,000/-;
default sentence being simple imprisonment for six months.
11. In revision petition No. 842/2017 the substantive sentence is
simple imprisonment for six months and the compensation amount is
`20,00,000/-; default sentence is simple imprisonment for six months.
12. In revision petition No.846/2017 the petitioner has been
sentenced to undergo simple imprisonment for six months with
compensation to the tune of `2,00,000/-; default sentence being simple
imprisonment for six months.
13. On perusal of the sentence order it reveals that while awarding
the sentence the courts below did not apply judicial mind. The business
transactions were between the same parties; impugned orders under
Section 138 Negotiable Instruments Act were passed on the same day
by the trial court as well as by the appellate court. All the cheques were
of different dates and on presentation they were dishonoured. It has
further come on record that petitioner's wife in similar circumstances,
was also convicted under Section 138 Negotiable Instruments Act.
However, on her making payment of the compensation amount, the said
matter was settled/compounded and she was acquitted of the charges.
14. In all the cases of different valuation of cheques, the substantive
sentence for six months each has been awarded by the trial court.
Again, the default sentence for the compensation amount which varies
from `60,00,000/- to `2,00,000/- is simple imprisonment for six months
each. This approach of the trial court to award default sentence without
considering the compensation/cheque amount cannot be sustained.
15. Considering the facts and circumstances of the case, the sentence
orders are modified. The substantive sentences awarded by the learned
trial court in the revision petitions referred above are ordered to be run
concurrently. While upholding the compensation amount being twice of
the amount of the cheques which were dishonoured; the default
sentence for non-payment of the compensation amount is altered to
three months, one month and ten days in revision petition Nos.841/17,
842/17 and 846/17 respectively.
16. The revision petitions stand disposed of in the above terms.
17. Trial court record be sent back forthwith.
18. Copy of the order be sent to the Jail Superintendant for
information.
S.P.GARG
(JUDGE)
APRIL 05, 2018/sa
