Delhi District Court
Sh. Shiv Kumar Gupta vs State (Nct Of Delhi) on 24 February, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE-03:NW:ROHINI:DELHI
Criminal Appeal No. 26/09.
SH. Shiv Kumar Gupta
S/o Sh. Rameshwar Dayal,
Prop: M/s. Durga Trading Co.
C-1, West Jyoti Nagar Extn.
Shahdara, Delhi-110094.
................ Petitioner
Versus
1. State (NCT of Delhi)
Service affected through its Standing Counsel.
2. M/s. IFM Impex Global Ltd.
Having its Registered Office at:
C-351/9, Majlish Park, Delhi-110033.
Through its Authorized Signatory
Sh. O.P. Yadav.
.................. Respondents
ORDER
1. By this order, I propose to decide appeal filed by appellant Sh. Shiv Kumar Gupta against the judgment dated 28.04.2009 and order on sentence dated 08.05.2009 passed in Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 1 of 25 Criminal Complaint Case No. 1005/09/99 titled Ms. I.F.M. Impex Global Ltd Versus Ms. Durga Trading Co. Notice of the appeal was given to the respondents and trial court record was summoned. Arguments have been heard from the learned counsels of the parties and trial court record has been perused.
2. Respondent No. 2 Ms. I.F.M. Impex Global Ltd. filed a complaint under Section 138 Negotiable Instruments Act read with Section 420 IPC through its Director & Authorized Signatory Sh. R.K. Tomar stating therein that complainant had supplied to the appellant/accused firm 457 bags of Dubar Sela Rice vide invoice dated 15.02.1999 for a sum of Rs. 5,52,240/- and that appellant/accused firm on repeated requests, gave a cheque bearing No. 481731 dated 01.07.1999 for Rs. 2 lakhs drawn on Central Bank of India towards part payment of the rice supplied by the respondent. However, the cheque on presentation was returned by the banker of the appellant with the remarks "funds insufficient" vide Cheque Return Memo dated 03.07.1999. On the cheque, the banker of the appellant had written "Account Closed." Information to this effect was received by the complainant through its banker State Bank of Saurashtra, Connaught Place vide memo dated 03.07.1999. Appellant/accused did not make the payment to respondent No. 2/complainant despite legal notice dated Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 2 of 25 07.07.1999 which was served upon the appellant on 09.07.1999 and the AD card was received back by respondent No. 2/complainant on 12.07.1999.
3. After pre-summoning evidence, appellant was summoned as accused by the learned trial court. Notice under Section 138 Negotiable Instruments Act was served upon the appellant to which, he pleaded not guilty. In its evidence, respondent No. 2/complainant examined three witnesses. PW-1 is the banker of respondent No. 2/complainant, PW-2 is the banker of appellant/accused and PW-3 is Sh. O.P. Yadav, Director of Respondent No. 2.
4. Statement of appellant/accused was recorded under Section 313 Cr. PC wherein he stated that no goods were received or supplied to him nor he had placed any order for the same. However, a blank cheque was given in May, 1997 as security deposit. In his defence, appellant produced Dr. S.C. Mittal from CFSL. He proved his report Exbt. DW-1/A.
5. After hearing arguments, learned trial court convicted the appellant/accused under Section 138 Negotiable Instruments Act vide judgment dated 28.04.2009 and sentenced him with six Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 3 of 25 months SI and fine of Rs. 5000/-, in default, to undergo SI for one month. In addition to the aforesaid, appellant was also directed to pay compensation to the tune of Rs. 3 lakhs to the complainant under Section 357 (3) Cr. PC failing which, to undergo further SI for one month. It is the said judgment and order which has been challenged in appeal.
6. Judgment of the trial court has been challenged by the appellant mainly on the following grounds:-
i) Complaint has been filed without proper and legal authorization;
ii) Complaint filed against M/s. Durga Trading Co. is not maintainable as it has no separate legal entity
iii) Cheque was not issued in discharge of any liability;
iv) The cheque was given blank as security without mentioning the date, name of drawer, amount in words and figure.
v) Demand notice under Section 138 Negotiable Instruments Act not served upon the appellant.
vi) Cheque in question was dishonoured for the reason "Account Closed" and therefore the offence does not fall within the purview of Section 138 Negotiable Instruments Act.
vii) Civil Suit under Order 37 CPC filed by respondent No. 2 on the basis of the same cheque dismissed by the Civil Court.Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 4 of 25
7. The learned counsel for the appellant has argued that the complaint was filed through Sh. R.K. Tomar and as per complaint, he was authorized to file the complaint by virtue of Board Resolution dated 30.07.1999 but the copy of the resolution/minutes of the company have not been proved on record. The Memorandum of Association and Article of Association of the company were also not produced. Sh. R.K. Tomar did not appear for evidence and instead, Sh. O.P. Yadav appeared as witness of the complainant without obtaining permission of the court. It is thus argued that complaint has been filed without any authorization and was therefore liable to be dismissed.
8. Admittedly, complaint has been filed through Sh. R.K. Tomar on the basis of the alleged resolution of the company dated 30.07.1999. Admittedly, said resolution has not been proved on record. Admittedly, Sh. R.K. Tomar did not appear in witness box but it can be seen from the record that the complainant company filed an application for substitution of Authorized Representative stating therein that previous authorized representative of the complainant has since been transferred. Although there is no specific order from the court permitting substitution but a perusal of Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 5 of 25 the record shows that Sh. O.P. Yadav was examined as complainant's witness on 25.10.1999 itself when substitution application was filed. Thus, there is deemed permission for the substitution of authorized representative and it cannot be held that complainant company had substituted its authorized representative without the permission of the court.
9. As per Section 142 (a) of the Negotiable Instruments Act, only payee or holder in due course can file the complaint. Complainant company is the payee of the cheque. In the case of MMTC Ltd Vs. MEDCHL Chemicals & Pharma (P) Ltd. 2002 (1) SCC 234, a complaint was filed by MMTC Ltd through the Manager of its Regional Office. Subsequently, the Manager was substituted by Deputy General Manager who was duly authorized. The High Court held that the complaint was not maintainable as it was signed and presented by a person, who was neither an authorized agent nor a person empowered under the articles of association or by any resolution of the Board to do so. It held that only the Executive Director of MMTC Ltd., had the authority to institute legal proceedings. Reversing the said decision, the Hon'ble Supreme Court held:
"In our view the reasoning given above cannot be sustained. Section 142 of the Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 6 of 25 Negotiable Instruments Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. The two complaints, in question, are by the appellant company who is the payee of the two cheques. This Court has as far back as in the case of Vishwa Mitter Vs. O.P. Poddar, (1983) 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute scribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the Statute. In the present case, the only eligibility criteria prescribed by Section 142 is that the complaint Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 7 of 25 must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant company."
Referring to the decision in Associated Cement Co. Ltd. Vs. Keshvanand 1998 (1) SCC 687, the Hon'ble Supreme Court held:
"It has been further held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 8 of 25 company. The complaints could thus not have been quashed on this ground."
10. In the present case, the initial resuolution dated 30.07.1999 in favour of Sh. R.K. Tomar has not been proved but Sh. O.P. Yadav, who was subsequently authorized by the company, proved the resolution dated 04.10.1999 in his favour. He deposed that he is one of the Directors of the complainant company and has been authorized by the Board of Directors of the company vide resolution dated 04.10.1999, copy of which is Exbt. PW-3/A. Thus, even if the first resolution dated 30.07.1999 in favour of Sh. R.K. Tomar is not proved, the said defect is rectified by the company by proving the resolution in favour of Sh. O.P. Yadav and therefore it cannot be held that complaint is not maintainable being without proper and legal authorization.
11. The learned counsel of appellant has argued that the complaint was filed against M/s. Durga Trading Co. and was not filed against appellant Shiv Kumar Gupta. It is stated that M/s. Durga Trading Co. being a proprietorship concern has no legal entity and therefore complaint against proprietorship firm is not maintainable.
12. M/s. Durga Trading Co. is stated to be a proprietorship Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 9 of 25 concern and Sh. Shiv Kumar Gupta is its proprietor. In the eyes of law, proprietorship concern is not a separate, legal and juristic entity and cannot be distinguished from its proprietor. A proprietory concern is synonym of proprietor. In fact, proprietor is the person who does the business but for trading convenience, business is done in the name of proprietory concern. In the case of Bedi Sons Steel & Wires Vs. B.G. Brothers 2002 (2) RCR (Crl.) 45 (P&H), Punjab & Haryana High Court has held that complaint filed in the name of proprietorship concern is maintainable. Madras High Court in the case of N. Vaidyanathan Deepika Milk Marketting Vs. M/s. Dodia Dairy Ltd 2001 DCR 134 held:-
"It is a settled principle of law that proprietorship concern by itself is not a legal entity and apart its proprietor; the Proprietory concern and the proprietrix are one and the same person. To put it differently, the prosecution against the Proprietrix representing proprietorship concern or proprietorship concern represented by Proprietrix are one and the same as both these things sink, sail and merge with only one entity."Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 10 of 25
13. In a current decision Maan Agro Centre Vs. Eid Parry (India) Ltd 2005 (2) Civil Court Cases 254, Bombay High Court held that prosecution of proprietory concern through its proprietor or proprietor of concern makes no difference. Therefore, that being the position of law, complaint having been filed against M/s. Durga Trading Co. through its Proprietor Sh. Shiv Kumar Gupta is maintainable.
14. The learned counsel of the appellant has argued that respondent No. 2/complainant has failed to prove that the cheque was issued in discharge of any liability. It is stated that no goods were ever supplied by respondent No. 2 to the appellant against the alleged cheque. Respondent No. 2 did not file any document on record to show that he had supplied the goods to the appellant. He did not file any invoice or bill nor proved any such documents to show that any goods were supplied to the appellant at any time. It is argued that the onus of proving the supply of goods to the appellant was on respondent No. 2. However, respondent No. 2 has failed to prove the same.
15. In the case of Goplast Pvt. Ltd Vs. Shri Chico Ursula D'Souza and Anr 2003 (2) RCR (Criminal) 131, the Hon'ble Supreme Court held that it has to be presumed that a cheque is Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 11 of 25 issued in the discharge of any debt or other liability. However, presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. In the present case, Sh. O.P. Yadav, appearing as PW-3, deposed that complainant company had supplied 457 bags of Dubar Sela Rice for Rs. 5,52,240/- vide invoice dated 15.02.1999 and after great pursuation, accused made part payment of the rice by way of cheque dated 01.07.1999 of Rs. 2 lakhs drawn on Central Bank of India, Shahdara. Examination of PW-3 Sh. O.P. Yadav was recorded in court on 02.08.2003. In cross examination, he admitted that he has not filed the invoice referred in the complaint. His cross examination was deferred at the request of counsel of the accused with directions to the witness to produce the invoice. The remaining cross examination of Sh. O.P. Yadav was completed on 18.09.2003 but on that day, no question was put to him regarding the invoice. Rather, only a suggestion was given that the cheque was without any consideration which was denied by the witness. In the case of K.N. Beena Vs. Muniyappan 2001 (4) RCR (Criminal) 545, it was held by the Hon'ble Supreme Court that in complaints under Section 138, the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused and denial by accused is not Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 12 of 25 sufficient to shift the burden on complainant. Accused has to prove by leading cogent evidence, that there was no debt or liability. In the present case apart from giving the suggestion to the witness that the cheque was issued without any consideration, accused has not led any evidence that there was no debt or liability, so much so that he himself also did not give any statement. Appellant admits his signatures on the cheque and therefore the onus was on him to prove that cheque was without any consideration but he has failed to prove the same.
16. It has been argued by the learned counsel of the appellant that appellant had given a blank signed cheque without mentioning the date, name of drawer, amount in words and figure. The cheque was not issued in favour of the complainant for any amount or date. It is submitted that it is a settled law that if cheque in question was given blank as security, it is not a cheque. During trial, the cheque was sent to CFSL for opinion. Relying upon the CFSL report Ex. DW1/A, it has been argued that it is clear that the date on the cheque, amount given in figure and words and the drawer's name were written on big gaps with different ink and the writings on the cheque were not of the appellant.
17. Appellant/accused in order to corroborate his plea, Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 13 of 25 examined Sh. S.C. Mittal, retired Principal Scientific Officer, CFSL who examined the handwriting and signatures on the cheque. In his report Exbt. DW-1/A, he stated that it is impossible to tell the relative age of signatures on the cheque. Thus, he could not tell when the signatures were put on the cheque. In cross examination, he stated that he cannot tell the time gap in writing Q- 1 i.e. words (two lacks only), amount Rs. 2,00,000/- and date 01.07.99, Q-1/1 i.e. (IFM IMPEX GLOBAL LTD.) & Q-2 (signatures of Appellant/Accused) and stated that this kind of gap occurs in normal writings meaning thereby that the cheque in question was written in normal course and not after a gap. The witness gives no opinion as to who had written Q-1 i.e. words "Two Lacks Only", "amount 2,00,000/-" and date "01.07.99." He only stated that the ink used in the cheque is of different chemical composition. The report Exbt. DW-1/B at best proves that the writing Mark Q-1/1 on the cheque Exbt. DW-3/B were not in the handwriting of appellant/accused. In the case of Lillykutty Vs. Lawrance 2003 (4) RCR (Crl.) 805, Hon'ble court held that mere fact that payee's name and amount are not in the handwriting of drawer does not invalidate the cheque. The burden is on the drawer of the cheque to establish that the date amount and the payee's name are written by somebody else without his knowledge and consent. Similarly, in the case of Mohanan Vs. Bibhukumar 2003 (4) RCR (Crl.) 6, it Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 14 of 25 has been held by the Hon'ble Kerala High Court that if a person gives blank cheque to drawee, it must be presumed that the said person has also given authority to drawer to fill up relevant details. The entries made in the cheque under such authority cannot normally amount to material alterations also. Merely because the entries are in the handwriting of another, the cheque will not cease to be a cheque or a bill of exchange. In the case of Moideen Vs. Johny 2006 (2) DCR 421, in proceedings under Section 138 NI Act, a contention was raised that the cheque was issued blank. It was held that it gives authority on the person to whom it is issued to fill it up at appropriate stage with necessary entries regarding liability and to present it to the bank and therefore accused cannot be absolved from the liability in the event of dishonour. In the case of Prabhakar Xembhu Vs. Surendra V. Pai & Anr. 2006 (2) DCR 351, Bombay High Court (Goa Bench), it was held as under:-
"Negotiable Instruments Act, 1881Section 138-Proceedings under-Contention that drawer issued a blank cheque duly signed-
Consideration of-Held-Expression signifies that drawer gives authority to fill in the details of amount and the date and to present it for payment and obtain payment due thereon.Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 15 of 25
Held: The said legal position is based on the principle that in such cases there is a tacit or implied consent by the drawer to fill in the details of the amount and date of the cheque. "I will give you a blank signed cheque" is an expression which we heard very often even before prosecutions under Section 138 of the Act came to be lodged and the said expression signifies that the drawer gives authority to holder or payee to complete the cheque in all respects including the amount to be filled in and the date and to present it for payment and obtain the payment due thereon.
18. In the present case, appellant has not led any evidence to prove that date, amount and the payee's name were written by someone else without his knowledge and consent. Even if the entries are in the handwriting of another, the cheque will not cease to be a cheque or a bill of exchange and accused cannot absolve himself from his liability in the event of dishonour. In his statement under Section 313 Cr. PC, appellant admitted his signatures on the cheque. Admission of signatures on a document goes a long way in the proof of the document. Once the appellant admits his Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 16 of 25 signatures on the cheque, then the onus lies on him to prove that the cheque was issued as security without consideration which he has failed to prove in this case. If the version of the appellant/accused that he had given blank cheque to respondent No. 2 is taken to be true, respondent No. 2/complainant could have filled in the entire amount i.e. Rs. 5,52,240/-. The appellant/accused while cross examining the authorized representative of respondent No. 2/complainant had suggested that the cheque in question was issued on 20.03.1999 and not 30.06.1999 but in statement under Section 313 Cr. PC, he stated that the cheque in question was issued in May, 1997. No evidence has been led by the appellant to prove that the cheque was given in May, 1997. Moreover, it is not shown as to what steps appellant/accused had taken for the recovery of blank cheque issued to respondent No. 2 company.
19. The next point argued by the learned counsel of the Appellant is that demand notice was not served upon the appellant. It is stated that the notice was sent at B-1, West Jyoti Nagar, Shahdara. However, the correct address of the appellant is C-1, West Jyoti Nagar Extension, Shahdara as mentioned in his bail bond. Notice was not sent at C-1. It is submitted that in his complaint, respondent No. 2 had given the address of appellant as Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 17 of 25 B-1, West Jyoti Nagar, Shahdara but later filed amended memo of parties giving the correct address as C-1, West Jyoti Nagar, Shahdara. It is argued that notice of the complaint was served on the appellant at C-1, West Jyoti Nagar, Shahdara and prior to that, summons sent at B-1, West Jyoti Nagar remained unserved. It is thus submitted that the notice was sent at incorrect address and was not served on the appellant and therefore the complaint without proper service of notice is not maintainable. The learned counsel of respondent No. 2, however, contends that appellant is the resident of B-1, West Jyoti Nagar, Shahdara but he had been avoiding the service of summons and in the meanwhile, respondent No. 2 came to know that appellant can be served at C- 1, West Jyoti Nagar, Shahdara and therefore moved an application for change of address.
20. On the perusal of the trial court record, it is found that summons initially sent at B-1, West Jyoti Nagar remained unserved with report that appellant was not available at the said address but later when the summons were sent at the new address i.e. C-1 West Jyoti Nagar, Shahdara, as per the report of the Process Server, the said summon was served upon the appellant at B-1, West Jyoti Nagar, Shahdara and not C-1, West Jyoti Nagar. Thus, the appellant was served with summons of complaint at B-1, West Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 18 of 25 Jyoti Nagar, Shahdara which is the address on which, notice Exbt. PW-3/D was sent. The authorized representative of respondent No. 2/complainant company was cross examined at length but there is not even a single suggestion about the non service of notice due to wrong address given in the notice. In his statement under Section 313 Cr. PC also appellant/accused did not say that his address was C-1, West Jyoti Nagar, Shahdara and rather surprisingly, in his statement, he says that as per his memory, he did not receive the notice dated 07.07.1999. Appellant/accused did not furnish any proof that at the time of issuance of the notice Exbt. PW-3/D, he was residing at C-1, West Jyoti Nagar, Shahdara and not at B-1, West Jyoti Nagar. The learned trial court rightly observed that there was nothing on record which reveals that complainant had any knowledge regarding any other address of the accused by way of any other earlier communication between the parties. In my view, appellant has failed to prove by leading cogent evidence that the address is wrongly mentioned in the notice. Plea of non service of notice is thus an afterthought and devoid of merits.
21. The learned counsel of the appellant has further argued that AD card bears the signatures of Krishna Sharma with whom appellant has no concern and thus respondent No. 2 has made Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 19 of 25 forgery by getting the notice served upon Krishna Sharma. In the case of Vasco Urban Co-op Credit Society Ltd Vs. Mrs. Shobha D. Kograonkar 2005 (4) RCR (Crl.) 601, the demand notice was sent through registered AD but the signatures on the AD did not tally with the signatures of the accused. It was held that there was presumption of service of notice. The drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. The Hon'ble Court held that it cannot be held that a cunning accused person may just scribble something on AD Card and not his real signature with a view to take a plea that such a notice was not received by the accused. The learned trial court relied on the case of V. Raja Kumari Vs. P. Subbrama Naidu 2004 (4) RCR (Criminal) 933 wherein the Hon'ble Court laid down that court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr 2007 (2) DCR 321, it has been held that any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 20 of 25 summons) and, therefore, the complaint is liable to be rejected. In the present case while cross examining PW-3 Sh. O.P. Yadav, no suggestion has been given that Krishan Sharma, who received the notice, was not known to the appellant or was not his agent or had no concern with him. Since notice was duly dispatched at the known address of appellant, there is a presumption of due service of notice to the appellant.
22. The learned counsel of appellant has also argued that as per endorsement made on the cheque Exbt. PW-3/D, it was dishonoured on the account of the reason "account closed" and therefore the offence does not fall within the purview of Section 138 Negotiable Instruments Act. Earlier, view of some High Courts was that on simple "stop payment" offence is not made out but if it is also established by payee that infact sufficient funds were not in the account of drawer and he had intentionally and maliciously issued directions to the bank to "stop payment", then only Section 138 comes into picture. The Surpeme Court however modified this view of different High Courts and held in the case of M/s.
Electronics Trade and Technology Development Corporation Ltd Vs. M/s. Indian Technologists and Engineers Pvt. Ltd, JT 1996 (1) SC 643 as under:-
"Despite civil remedy Section 138 is Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 21 of 25 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it.
Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. If it is seen that once the cheque has been drawn and issued to the payee and payee has presented the cheque and thereafter if any instructions are issued to the bank for non payment and the cheque is returned to the payee with such endorsement, it amounts to dishonour of cheque and it comes within the meaning of Section 138."
23. Thus, the plea taken by the learned counsel of the complainant that on account of the "payment stopped", no offence under Section 138 NI Act is made out, is not tenable.
24. Lastly, the learned counsel of the appellant has submitted that the learned trial court has failed to consider that civil suit under Order 37 Cr. PC filed by the complainant on the basis of Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 22 of 25 the same cheque has been dismissed by the learned Civil Judge. Respondent No. 2 has not filed any appeal against the said order and therefore the learned trial court had no option except to dismiss the complaint. The learned counsel of respondent No. 2 submits that civil case was dismissed in default and even otherwise the dismissal of the civil suit has no bearing on the present case. Civil Suit and criminal proceedings are independent of each other and not alternative remedies. In the case of Satish Kumar Vs. Krishan Gopal 1994 Crl. LJ 887, the Hon'ble Court held that criminal complaint cannot be stayed because of the pendency. The finding on a question of fact arrived at by civil court is also not binding on a criminal court in a criminal prosecution where the criminal court is required to decide the same question of fact. The criminal court is to decide a particular question of fact on the basis of the material produced before it. In taking this view, I am supported by the judgment of Madras High Court in the case of Sabura Textiles Vs. V.S. Krishnamoorthy 2001 (2) RCR (Crl.) 243 (Madras). Thus, the dismissal of the civil suit has no bearing on the complaint case filed under Section 138 Negotiable Instruments Act.
25. In view of my aforesaid discussion, I do not find any merit in any of the grounds pressed in the appeal. There is no Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 23 of 25 infirmity in the judgment dated 28.04.2009 passed by the learned trial court convicting the Appellant under Section 138 NI Act. So far as sentence is concerned, there is no dispute that the tenure of imprisonment should commensurate with the gravity of the crime and the court should bear in mind that very object of introducing Section 138 is to bring about the honesty and credibility in the business transaction through cheques. If a person who has committed such an offence is to be treated lightly and let off with a flea-bite sentence, then the purpose of enactment might be defeated. Appellant has not paid the compensation amount awarded by the learned trial court till date. In the case of Suganthi Suresh Kumar Vs. Jagdeeshan AIR 2002 SC 681, the Hon'ble Court held that if the amount had been paid to the complainant then perhaps there would have been justification for imposing a flea-bite sentence but in a case where the amount covered by the cheque remained unpaid, it should be the look out of the trial Magistrate that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly.
26. Since the appellant has not made the payment of compensation awarded by the learned trial court or even the Shiv Kumar Gupta Vs. State Criminal Appeal No. 26/09. Page 24 of 25 cheque amount, he does not deserve any leniency. The learned trial court while awarding sentence of six months SI and compensation under Section 357 (3) Cr. PC also imposed a fine of Rs. 5000/-. Under Section 3357 (3) Cr. PC, compensation can be given when no fine is imposed. In the case of Suganthi Suresh Kumar Vs. Jagdeeshan (supra), it has been held that Section 357 (3) Cr. PC can be invoked only when fine does not form part and where the sentence of fine has already been imposed, unless the sentence of fine is deleted, award of compensation cannot be ordered by the higher court. Hence, under these facts and circumstances, order of fine of Rs. 5,000/- passed by the learned trial court is set aside and the remaining sentence of six months Simple Imprisonment and compensation to the tune of Rs. 3 lakhs failing which, one year SI under Section 357 (3) Cr. PC with benefit of Section 428 Cr. PC awarded by the learned trial court is maintained. The order of sentence is accordingly modified. Appeal is therefore dismissed with slight modification of order of sentence dated 08.05.2008 to the aforesaid extent. Trial court record be sent back with the copy of this order. Appeal file be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW-03:ROHINI:DELHI ANNOUNCED IN THE OPEN COURT ON 24.02.2011.
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