Indian Kanoon - Search engine for Indian Law

Delhi District Court

Shri Gaurav Sharma vs State Govt. Of Nct Delhi on 18 August, 2023

   IN THE COURT OF MS. SHIVALI SHARMA,
   ADDITIONAL SESSIONS JUDGE - 03: WEST
    DISTRICT, TIS HAZARI COURTS, DELHI

                                   CNR No. DLWT01-009258-2022
                                              CR No. 307-2022
                                               U/s. 397 Cr.PC.

IN THE MATTER OF:


Gaurav Sharma
M/s Madhav Electrical Trading Co.
2000, Karta Lachoo Singh,
Bhagirath Palace,
New Delhi-110006
                               .............Revisionist

                                  VERSUS

1. The State (Govt. of NCT Delhi)
Through its Public Prosecutor
Govt. of NCT Delhi

2. Sh. Subhash Gupta,
Prop of M/s Ess Kay Enterprises,
1822-A/11, Electrical Market,
Chandni Chowk,
Delhi-110006.
                               ............RESPONDENTS
Other Details :

     Date of Institution                                         : 22.09.2023
     Date of Reserving Order                                     : 03.08.2023
     Date of Order                                               : 18.08.2023

 REVISION PETITION U/s. 397 Cr. P.C. FOR SETTING
ASIDE THE ORDER DATED 18.08.2022 OF LD. MM-(NI-
  03), WEST, M NO. 06-2021 IN RESPECT OF CC NO.
                      6620/16


   CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 1 /7
 ORDER:

1. Brief facts of the case which led to the filing of the present revision petition are that the Complainant Subhash Gupta/Respondent no.2 herein filed a complaint u/s 138 NI Act being CC No. 6620/2016 against accused Gaurav Sharma/Appellant herein. In the said complaint case, accused Gaurav Sharma was convicted for offence u/s 138 NI Act vide judgment dated 10.05.2019. Vide order of sentence dated 21.06.2019, the accused Gaurav Sharma was sentenced to SI for a period of 1 month and was directed to pay a fine of Rs. 4,50,000/- which had to be given as compensation to complainant Subhash Gupta u/s 357 CrPC. The fine was directed to be deposited within one month of the date of order.

2. The accused Gaurav Sharma did not file any appeal against the judgment of conviction dated 10.05.2019 and order on sentence dated 21.06.2019. He has already undergone the sentence imposed upon him.

3. Thereafter, an application u/s 421 r/w 431 CrPC (M. No. 6-2021) was filed by the complainant seeking directions to the convict/accused Gaurav Sharma to pay fine of Rs. 4,50,000/-. Vide order dated 28.04.2022, the application was allowed and it was directed that the fine amount of Rs. 4,50,000/- shall be recovered from convict/accused Gaurav Sharma by way of attachment of property (movable and immovable) in terms of Section 421 CrPC.

4. Thereafter, Ld. Trial Court issued warrants of attachment of the properties belonging to the accused. NBWs were also directed to be issued against accused vide order dated 30.06.2022. On 18.08.2022, the convict/accused Gaurav Sharma moved an application for cancellation of NBWs and cancellation CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 2 /7 of proceedings u/s 421 R/w 431 CrPC on the ground that he has already undergone the period of sentence and as such has discharged his liabilities towards the payment of fine. Now, the fine can be recovered only through the mode of civil process.

5. Vide impugned order dated 18.08.2022, the said application was dismissed and fresh NBWs were directed to be issued against the convict Gaurav Sharma. It is this issuance of NBWs vide impugned order dated 18.08.2022 which is under challenge in the present revision petition.

6. For the sake of clarity, the impugned order is reproduced herein under:

Present: Sh. Shubham Sharma, Ld. Proxy Counsel for the complainant.

Sh. Devender Kumar, Ld. Counsel for convict.

Ld. Counsel for the convict has moved an application for cancellation of NBW and cancellation of proceedings u/s 421 r/w 431 CrPC on the ground that he has already undergone the sentence and thus by serving the sentence the convict has discharged his liability and as such fine amount compensation, if any, payable by applicant. He further submits that the complainant can recover the said fine/compensation through the mode of civil process. He further submits that due to his abovementioned submission NBW issued by the court is neither maintainable nor sustainable in the eyes of law.

Perusal of record reveals that the submission made by the Ld. Counsel for convict about the recovery of fine/compensation amount is already dealt by the court vide order dt. 28.04.2022. Further in regard to the submission made by the Ld. Counsel for convict regarding the CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 3 /7 issuance of NBW stands dismissed as the NBW was issued just to secure his presence.

In view of this, application stands disposed off.

Further the record reveals that on vide order dt. 30.06.2022 warrant of attachment was issued against the convict. However, the status report of warrant of attachment is still awaited.

Issue fresh warrant of attachment against the convict at the address of G-2/22, Sector 15, Rohini, New Delhi-110089 on filing of PF.

Concerned DM is directed to appear before this Court on next date of hearing and file the status report regarding the warrants of attachment.

Issue NBWs against the convict through the concerned SHO on filing of PF for 20.09.2022 at 02.00 pm. Copy of order be given dasti as prayer.

SUKHJEET SINGH MM (N.I. ACT-03), WEST 18.08.2022"

7. It is submitted on behalf of the Revisionist/convict Gaurav Sharma that the impugned order regarding issuance of NBWs against the accused is clearly against the mandate of law. Section 421 CrPC categorically provides that any fine imposed as a part of sentence can be recovered only by issue of warrant of attachment and sale of immovable property belonging to the offender or issue of warrant to the Collector of the District authorizing him to realise the amount as arrears of land revenue from the movable or immovable property of the offender. Proviso to Section 421 CrPC clearly provides that in case the sentence directs that in default of payment of fine, the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reason to be recorded in writing, it considers it CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 4 /7 necessary to do so or unless it has made an order for payment of expenses or compensation out of the fine u/s 357 CrPC.

8. Proviso to Subsection 3 of Section 421 CrPC also provides that no such warrants shall be executed by the arrest or detention in prison of the offender.

9. It is submitted by Ld. Counsel for the appellant/convict Gaurav Sharma that he is not challenging the legality of the impugned order dated 18.08.2022 to the extent it had directed recovery of fine or compensation amount by issuance of warrants of attachment of his property, however, his only concern is regarding the issuance of NBWs against him in proceedings u/s 421 CrPC which is clearly against law. Once, the convict Gaurav Sharma had already gone the complete sentence, he cannot be taken into custody on NBWs issued against him in a casual or routine manner. Ld. Trial Court may proceed u/s 421 CrPC for recovery of the fine amount but the applicant cannot be taken into custody for the said purpose. Accordingly, issuance of NBWs by Ld. Trial Court by way of the impugned order is completely illegal and accordingly, setting aside of the same is sought.

10. Per contra, Respondent has supported the impugned order and it is submitted that there is no illegality or infirmity in the same which requires any interference by this Court. The impugned order dated 18.08.2022 itself clarifies that NBWs have been issued against the convict Gaurav Sharma merely to secure his presence. Instead of complying with the directions passed by Ld. Trial Court in this regard, convict Gaurav Sharma is unnecessarily agitating the matter by filing the present revision petition. The present revision petition, being bereft of any merits is liable to be dismissed.

11. I have heard the submissions made and carefully perused the record.

12. There is no dispute to the effect that the Revisionist has already undergone the sentence imposed upon him. Ld. Trial Court has rightly proceeded u/s 421 CrPC for recovery of the fine amount. However, there is no procedure u/s 421 CrPC for issuing NBWs against the convict for ensuring recovery of the fine amount. As per Section 421 CrPC, the fine amount can be recovered only by two ways, firstly by warrants of attachment and sale of movable property and secondly by warrants to the Collector of the District for recovery of fine amount as arrears of land revenue. There is no third way prescribed by law for recovery of fine levied on an offender. Section 421 CrPC clearly provides that the warrants issued under the said provision cannot be executed by arrest or detention of the offender in prison.

13. Impugned order dated 18.08.2022 records that warrants have been issued against the accused to secure his presence before the court, however, none of the previous orders records issuance of any notice to convict Gaurav Sharma for any purpose by the court. There is no clarity as to why his presence was required by the court for which NBWs were issued against him. In fact, perusal of the TCR shows that the NBWs were firstly issued against the convict Gaurav Sharma vide order dated 28.04.2022 when the Ld. Trial Court disposed off the application u/s 421 r/w 431 CrPC filed by the complainant. Even the said order does not record why NBWs were issued against the convict or why his presence was required by the court.

14. An order issuing NBWs against anyone without detailing the reasons therefor is clearly illegal on the face of it. It is not a case where convict Gaurav Sharma had failed to appear despite CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 6 /7 issuance of notice to him repeatedly.

15. Considering the overall facts of the case and the circumstances in which NBWs were issued against the accused/convict Gaurav Sharma by the Ld. Trial Court as detailed above, I have no hesitation in holding that the impugned order dated 18.08.2022 directing issuance of NBWs against the convict is highly illegal and against the procedure of law to the extent of issuing NBWs against the convict Gaurav Sharma (revisionist herein).

16. Accordingly, the impugned order dated 18.08.2022 to the extent of issuance of NBWs against the accused/Convict Gaurav Sharma is set aside.

17. The revision petition is accordingly, allowed.

18. TCR be sent back with a copy of the order.

19. Revision file be consigned to Record Room after completion of all legal formalities.

Announced in open Court                                          SHIVALI SHARMA
                                                                         Date:
                                                                 SHARMA 2023.08.19
Dated: 18.08.2023.                                                          12:46:48
                                                                            +0530



                                                                (Shivali Sharma)
                                     Additional Sessions Judge-03(West)
                                            Tis Hazari Court/18.08.2023




      CR No. 307­2022, Gaurav Sharma Vs. State of NCT of Delhi & Anr. Page No. 7 /7