Delhi High Court
Shri Sandeep Rehani vs State & Anr on 11 December, 2018
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 11.12.2018
+ CRL.REV.P. 1111/2018 & CRL.M.B.1905/2018 & CRL.MA.49315-
16/2018
SHRI SANDEEP REHANI ..... Petitioner
Through Mr.Narender Bhandari, Adv. with
petitioner in person.
versus
STATE & ANR ..... Respondents
Through Ms.Manjeet Arya, APP for the State.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. Vide the present petition, the petitioner seeks setting aside of the
order of conviction dated 31st July, 2018 passed by the learned Trial
Court in C.C. No.466367/2016, holding the petitioner guilty under
Section 138 of the Negotiable Instruments Act and sentencing him to
undergo six months simple imprisonment with a further direction to pay
a fine of Rs.25,00,000/- as compensation to the complainant/respondent
no.2. In default of payment of fine, the petitioner was ordered to
undergo simple imprisonment for a further period of six months. The
petitioner also impugns the order dated 14th November, 2018 passed by
the learned Appellate Court, dismissing his appeal, thereby upholding
the orders of conviction and sentence passed by the learned Trial Court.
2. Learned counsel for the petitioner submits that the petitioner had
approached the respondent no.2 in December, 2014 with one of his old
clients, namely, Shri Darshan Shorie for some legal advice whereafter
the parties started negotiating regarding purchase of a property. He
submits that in these circumstances, the petitioner had given two cheques
to the respondent no.2, for a total sum of Rs.25,00,000/- lakhs only as
advance for purchase of property but since the said property deal did not
materialize, the cheques were to be returned back to him by respondent
no.2. He states that since the respondent no.2 did not return back the
same to him, the petitioner was compelled to give instructions to his
bank not to honour the cheques in favour of the respondent no.2 and
accordingly the cheques upon presentation, were returned unpaid with
the remarks "payment stopped by drawer".
3. Upon dishonour of the two cheques, the respondent no.2 filed a
complaint under Section 138 of the Negotiable Instruments Act before
the learned Trial Court and the same was registered as C.C.
No.466367/2016. The learned Trial Court after considering the evidence
brought on record under its impugned judgment dated dated 31 st July,
2018, convicted the petitioner u/s 138 NI Act and sentenced him to
undergo simple imprisonment for a period of six months with a further
direction to pay a fine of Rs. 25,00,000/- as compensation to the
complainant/respondent no.2.
4. The petitioner unsuccessfully challenged his conviction and order
of sentence before the learned ASJ. The petitioner's appeal was
dismissed on 14th November, 2018 and he was directed to surrender
before the learned Trial Court by 26th November, 2018. Learned counsel
for the petitioner submits that after the dismissal of his appeal, the
petitioner could not surrender as he was trying to make arrangements for
raising funds in order to make payments to the respondent and enter into
a settlement with him. He submits that the petitioner has now paid a sum
of Rs.5,00,000/- to the respondent no.2 towards the amount payable to
him, who has thereafter given up all his claims against the petitioner as a
part of the settlement. He, therefore, states that while the petitioner does
not challenge the order of conviction passed by the learned Trial Court
as upheld by the learned Appellate Court, he prays that keeping in view
the subsequent settlement between the parties, the sentence of
imprisonment awarded to the appellant be waived.
5. The petitioner as also the respondent no.2 are present in Court.
Their identity cards have been duly examined by Ms.Arya, learned APP.
I have interacted with the respondent no.2 who states that he has entered
into a settlement with the petitioner out of his free will and without any
coercion. He states that keeping in view the fact that he has amicably
resolved his disputes with the petitioner, he also does not oppose the
petitioner's prayer for waiver of sentence.
6. Issue notice. Ms.Manjeet Arya, learned APP accepts notice and
also fairly does not oppose the said prayer made by learned counsel for
the petitioner. She, however, states that keeping in view the fact that the
petitioner has not surrendered before the learned Trial Court even though
specifically directed to do so by 26th November, 2018, at least one day's
sentence be awarded to him. She further points out that the learned Trial
Court has also issued Non-Bailable Warrants against the petitioner on
account of his not surrendering before the Court on 26 th November,
2018.
7. I have carefully considered the submissions of the parties and
perused the record. Though there is no doubt that the petitioner upon his
conviction u/s 138 NI Act has been sentenced to six months simple
imprisonment by the Courts below, it is also an admitted position that
the respondent no.2 has settled the matter with the petitioner after receipt
of Rs.5,00,000/- as against the cheque amount of Rs.25,00,000/-. It is
thus evident that there was indeed some controversy between the parties
regarding the amount payable by the petitioner to the respondent no.2.
In these circumstances, once the respondent no.2/complainant himself is
satisfied with the amount received by him, the petitioner is entitled to
some leniency specially since there is no minimum sentence provided
under Section 138 of the Negotiable Instruments Act.
8. Accordingly, while upholding the conviction the petitioner under
Section 138 of the Negotiable Instruments Act, the order on sentence
dated 29th August, 2018 as passed by the learned Trial Court and upheld
by the appellate court is modified and the petitioner is sentenced to
remain in Court till the rising of the Court. The remaining sentence of
the petitioner is waived subject to his paying costs of Rs.1,00,000/- to the
Delhi Police Martyr's Fund, A/c No.18200110036907, UCO Bank,
Delhi, IFSC Code UCBA0001820 within four weeks from today.
9. The petition alongwith pending applications is disposed of in the
aforesaid terms.
(REKHA PALLI)
JUDGE
DECEMBER 11, 2018/aa
