Delhi District Court
Seema Malhotra vs Amit Kumar Sethi on 12 November, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 03/13
Unique case ID No. 02404R0003282013
Seema Malhotra
W/o Sh. Suresh Kumar Malhotra
R/o 583, Bhai Parmanand Colony,
Delhi110009
......................Appellant
Versus
Amit Kumar Sethi
Son of Sh. Sukhdev Sethi
R/o B56, Rishi Nagar,
Rani Bagh, Delhi110034
Respondent
Date of institution of the case: 07/01/2013
Arguments heard on: 07/08/2013
Date of reservation of order: 07/08/2013
Date of Decision:12/11/2013
ORDER
This is a criminal revision appeal filed u/s 374 of Cr.P.C. against impugned judgment dated 15/12/2012 and order on sentence dated 20/12/2012.
In brief, in a complaint case No. 2009/09, titled as Amit Kumar Sethi Vs. Seema Malhotra & Ors., vide impugned judgment dated 15/12/2012, the learned Trial Court convicted the present appellant for offence U/s. 138 of Negotiable Instruments Act. Vide impugned order passed on the point of sentence dated 20/12/2012, the present appellant was sentenced to undergo rigorous imprisonment of one year. Compensation to the tune of Rs. 50,000/ i.e. the cheque amount CA No. 03/13 1/4 alongwith an interest @ 6% per annum from the date of filing of the complaint till the date of order on sentence was also imposed upon the present appellant payable to the complainant U/s. 357(3) of Cr.P.C.
The impugned order has been challenged on various grounds. It is contended that impugned judgment and order are against the law and facts and as such are not maintainable in the eyes of law. It is further contended that learned Trial Court has gravely erred in not appreciating the fact that the complainant/respondent failed to show that appellant/accused was under any legal debt or that the cheque was issued towards the discharge of said debt. It is further contended that learned Trial Court has failed to appreciate the fact that complainant had deliberately not filed the complete dissolution deed before the learned Trial Court, wherein it was categorically mentioned that the cheques were being handed over to the father of the complainant towards the refund of the money allegedly invested in the firm. It is further contended that learned Trial Court has further erred in not appreciating the fact that the complainant had admitted in his notice sent to the appellant and her husband that appellant had sent a legal notice to the complainant not to present the said cheque, which the complainant not produced before the learned Trial Court. It is further contended that learned Trial Court did not consider the fact that there is tampering in the cheque as the name written on the cheque is in different ink than the other writings, which fact has been admitted by the respondent. It is further contended that sentence awarded to the appellant/accused is very harsh, without considering the fact that she is a lady, having two minor daughters to lookafter and support. It is further contended that both impugned judgment and order on sentence be set aside.
I have heard Ld Counsel for revisionist, Ld. Counsel for the respondent and have gone through the TCR.
During the course of arguments, matter has been settled between the CA No. 03/13 2/4 parties with the intervention of the Court for a sum of Rs. 2,00,000/, out of which, Rs. 50,000/ has already been given by the appellant to the respondent on 02/09/2013 and Rs. 1,50,000/ has also been given today.
Learned counsel for both the parties have contended that the matter can be compounded even at the stage of appeal and in support of same they have relied upon the Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India also reported as AIR 2010 SC 1907.
I have considered the submissions of Ld counsel for parties and have gone through the judgment relied upon. According to section 147, offences punishable under Negotiable Instrument Act is compoundable.
It has also been held in K.M.Ibrahim V. K.P. Mohammed and Anr., 2009 (14) SCALE 262 that " It is true that the application under section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."
According to it, offence u/s 138 of Negotiable Instrument Act can be compounded at the appellate stage also.
Considering the above facts and circumstances, as the matter has been compromised by both the parties, I allow the compounding of the offence u/s 138 of N.I. Act. Sentence as imposed by Ld Trial Court vide order dated 20/12/2012 is set aside and compensation amount is modified to Rs. 2 lacs, as settled.
It has also been held in Damodar S. Prabhu Vs Sayed Babala H. of Supreme Court of India that if the matter is compromised in the court of Appeal CA No. 03/13 3/4 before the court of Sessions Court than the same be allowed on the condition that the accused will pay 15 percent of the cheque amount by way of cost. It has also been held that scale of cost has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.
Considering the above facts and circumstances, as appellant remained unable to pay the amount for quite a long time, I am of the opinion that the 15% cost of the cheque will be on higher side. Accordingly the cost at the rate of 1% of the cheque is imposed on appellant. Appellant is directed to deposit 1% of cheque amount of Rs. 50,000/ i.e. Rs. 500/ in the court as Cost.
TCR be sent back with copy of order to the concerned court of learned Metropolitan Magistrate.
Appeal file be consigned to record room.
Announced in Open Court on
dated 12th of November, 2013 (Virender Kumar Goel)
Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CA No. 03/13 4/4