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Netar Prakash vs Satinder Pal Dutta Since Deceased Mrs ... on 28 July, 2022

Author: Anoop Kumar Mendiratta

Bench: Anoop Kumar Mendiratta

                          $~51
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CRL.M.C. 3455/2022, CRL.M.A. 14482/2022
                                NETAR PRAKASH                                        ..... Petitioner
                                            Through:              Mr.Bahar U. Barqi and Mr.Waseem
                                                                  Ansari, Advocates.
                                              versus
                                SATINDER PAL DUTTA SINCE DECEASED
                                MRS MADHU GUPTA & ORS.                   ..... Respondents
                                              Through: Mr.Inderbir Sing Alag, Sr. Advocate
                                                         with Mr.Anil Kr. Verma and
                                                         Ms.Ashu, Advocates for R1 to R4.
                                CORAM:
                                HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
                                              ORDER

% 28.07.2022 CRL.M.A. 14483/2022 Exemption allowed, subject to all just exceptions. Application stands disposed of.

CRL.M.C. 3455/2022, CRL.M.A. 14482/2022 (stay)

1. Petition has been preferred on behalf of the petitioner under Article 227 of the Constitution of India read with Section 482 Cr.P.C. against the order dated 26.05.2022 passed by learned ASJ, South-East District, Saket Courts, New Delhi on application filed by the respondents herein in C.A. No.561/2019, whereby the legal heirs of Satinder Pal Dutta were permitted to be brought on record in appellate proceedings preferred against conviction and sentence by the learned Trial Court under Section 138 of Negotiable Instruments Act.

2. Issue notice. Learned counsel for the respondents appears on advance notice and accepts notice.

3. Reply be filed within four weeks with an advance copy to the learned counsel for the petitioner.

4. Learned counsel for the petitioner presses for stay of operation of aforesaid order dated 26.05.2022.

5. In brief, the proceedings under Section 138 of Negotiable Instruments Act, preferred on behalf of Late Satinder Pal Dutta before the learned MM culminated in conviction of the petitioner under Section 138 of Negotiable Instruments Act. The petitioner was accordingly convicted and sentenced to undergo SI for 01 year and to pay compensation of Rs.45 Lakhs (Rupees Forty-Five Lakhs only) to the respondent within 30 days (in default of payment of compensation, to undergo SI for 06 months).

6. Being aggrieved against the aforesaid conviction and sentence, petitioner preferred Criminal Appeal No. 561/2019 under Section 374 Cr.P.C. before learned Sessions Judge, Saket Courts, New Delhi. The grievance of the petitioner is that during the pendency of the appeal, an application was filed on behalf of the respondent for bringing on record the legal heirs of the complainant late Satinder Pal Dutta, which has been allowed vide impugned order dated 26.05.2022 by the learned ASJ-04, South-East District, Saket Courts, New Delhi.

7. It is urged by the learned counsel for the petitioner that no provisions of law were mentioned by the learned Appellate Court, while disposing of the aforesaid application whereby the legal heirs have been permitted to be brought on record. Further, no documents were filed as to who are the legal heirs of the deceased and no affidavit had been filed in support of the same. It is also submitted that one of the legal heirs is a permanent resident of Australia and no authority in this respect was filed.

It is further urged that though the applicability of provisions of Section 148 of Negotiable Instruments Act, 2018 for directing the appellant/drawer against conviction under Section 138 Negotiable Instruments Act to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the learned Trial Court, is not disputed but the same is not applicable in view of the fact that the legal heirs have not been brought on record in accordance with law.

Learned counsel for the petitioner further submits that learned Trial Court has wrongly placed reliance upon Chand Devi Daga and Others v. Manju K. Humatani and Others, (2018) 1 SCC 71 and the aforesaid authority favours the case of the petitioner herein.

8. Learned counsel for the respondents vehemently opposes the contentions.

9. I have given considered thought to the contentions raised.

A bare perusal of impugned order dated 26.05.2022 passed by the learned Appellate Court reveals that the wife and three sons of the complainant were permitted to be impleaded as legal heirs of the deceased complainant.

The contentions raised before this Court were also urged before the learned Appellate Court and also reliance was placed upon Shri Balasaheb K Thackeray & Anr. v. Shri Venkat @ Babru son of Wamanrao, Manu/SC/8218/2006 decided by Hon'ble Supreme Court on 05.07.2006.

10. Considering the submissions made on behalf of the petitioner herein, it was noticed by learned ASJ vide impugned order dated 26.05.2022 that learned counsel for the respondent (complainant/LRs of Satinder Pal Dutta) submitted at bar, upon instructions, that if the Crl. Misc. Petition is Signature Not Verified Digitally Signed CRL.M.C.3455/2022 Page 3 of 6 By:DINESH CHANDRA Signing Date:30.07.2022 18:09:58 dismissed, the compensation amount as granted by the learned Trial Court shall be handed over/received by the wife of the deceased Satinder Pal Dutta.

11. At the outset, it may be observed that the objections raised by learned counsel regarding filing of affidavit, vakalatnama, authority letter on behalf of legal heirs are merely procedural in nature and have been duly noted by the learned ASJ.

However, the legal issue which is of paramount concern is whether the application can be allowed for substitution of legal heirs during the pendency of appeal.

Perusal of Chand Devi Daga and Others v. Manju K.Humatani and Others (supra), reveals that the complaint preferred under Section 420, 467, 468, 120-B, 201 read with 34 IPC was dismissed by the Magistrate vide order dated 26.02.2015 in aforesaid case. Thereupon, the Criminal Revision was preferred which was dismissed by the Additional Sessions Judge on 20.11.2015. Criminal Misc. Petition dated 20.11.2015 was preferred against the said order dated 20.11.2015 before the High Court and during the pendency, the petitioner therein expired on 02.04.2016. Thereupon the application was filed by legal heirs of the petitioner therein to be substituted in place of the petitioner, which was allowed for prosecuting the Criminal Misc. Petition. Aggrieved by the aforesaid order of the High Court, an appeal was preferred before the Hon'ble Supreme Court.

It was therein contended that there is no provision which permits legal heirs of the deceased complainant to be substituted for prosecuting the complaint.

It was observed by the Hon'ble Supreme Court that even in case of trial of summon cases, it is not necessary or mandatory that after the death of the Signature Not Verified Digitally Signed CRL.M.C.3455/2022 Page 4 of 6 By:DINESH CHANDRA Signing Date:30.07.2022 18:09:58 complainant, the complaint is to be rejected in exercise of the power under proviso to Section 256(1) of Cr.P.C. and the Magistrate can proceed with the complaint. Further, there is no provision in Chapter XIX-Trial of Warrant Cases by Magistrate that in the event of death of the complainant, the complaint is to be rejected. Reference was further made to Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983 and Section 302 of Cr.P.C. providing for permission to conduct prosecution, as well as Shri Balasaheb K. Thackeray v. Shri Venkat @ Babru (supra), to hold that the High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Misc. Petition before the High Court.

12. It may be observed that Chapter XVII of Negotiable Instruments Act provides for penalties in cases of dishonor of cheques for insufficiency of funds and was brought into effect w.e.f. 01.04.1989. The procedure for taking cognizance of offences under Section 142 Negotiable Instruments Act; power of the Court to try cases summarily under Section 143; power to direct interim compensation under Section 143A; mode of service of summons under Section 144; evidence on affidavit under Section 145; compounding of offences under Section 147; power of Appellate Court to order payment pending appeal against conviction under Section 148 of Negotiable Instruments Act, start with non obstante clauses, keeping in view that complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of Indian Penal Code or other offences.

The offence under Section138 of Negotiable Instruments Act is almost in the nature of civil wrong, which has been given a criminal overtones, as observed in Kaushalya Devi Massand v. Roopkishore Khore, AIR 2011 SC 256. Signature Not Verified Digitally Signed CRL.M.C.3455/2022 Page 5 of 6 By:DINESH CHANDRA Signing Date:30.07.2022 18:09:58 In view of the nature of offence under Section 138 Negotiable Instruments Act coupled with reading of Section 256, Section 249 and Section 302 of Code of Criminal Procedure, 1973, it cannot be inferred that the intention of the legislature was to bar the legal heirs of the complainant to be brought on record during the appellate proceedings and deprive the legal heirs of the compensation awarded on completion of proceedings under Section 138 Negotiable Instruments Act.

The findings in Shri Balasaheb K. Thackeray v. Shri Venkat @ Babru (supra), do not bar the impleadment of legal heirs of the complainant to prosecute the matter upon the death of the complainant, as contended by learned counsel for the petitioner. The matter is no longer res integra in view of observations in Chand Devi Daga (supra) and the same permits the bringing of legal heirs on record to prosecute the matter on behalf of the deceased/complainant in the proceedings pending before the higher court.

Considering the facts and circumstances, I am not inclined to stay the operation of the impugned order, at this stage.

Trial Court Record be summoned in digital format.

List on 13.12.2022.

A copy of this order be forwarded to the learned Trial Court for information.

ANOOP KUMAR MENDIRATTA, J.

JULY 28, 2022/R Signature Not Verified Digitally Signed CRL.M.C.3455/2022 Page 6 of 6 By:DINESH CHANDRA Signing Date:30.07.2022 18:09:58