Delhi District Court
Sh. Salauddin vs Smt. Asha on 7 April, 2018
Criminal Appeal No.21/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 21/2018
Under Section : 138 of Negotiable Instruments Act, 1881.
Police Station : Preet Vihar
CC No. : 59393/2016
CNR No. : DLET01-000667-2018
In the matter of :-
SH. SALAUDDIN
S/o. Sh. Islamuddin,
R/o. 736, Katra Fazalpura,
Sui Walan, Delhi. ............APPELLANT
VERSUS
1. SMT. ASHA
W/o Sh. Ompal,
R/o. 244/65, Gali No.7, School Block,
Mandawali, Delhi.
2. State ............RESPONDENTS
Date of Institution : 09.02.2018
Date of reserving judgment : 04.04.2018
Date of pronouncement : 07.04.2018
Decision : Appeal is partly allowed.
JUDGMENT
1. This criminal appeal is directed against order on sentence dated 29.11.2017, passed by trial court, in a case titled as Smt. Asha v. Salauddin, bearing CC No.59393/2016, under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act), PS Preet Vihar. Vide impugned order on sentence dated 29.11.2017, trial court sentenced convict/appellant herein to undergo TRC and to pay fine of Rs.3.5 lac. Out of fine of Rs.3.5 lac, Rs.3.35 lac was Page 1 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 payable as compensation to the complainant and remaining amount of fine of Rs.15,000/- was to be deposited with State. In default of payment of fine, convict was to undergo simple imprisonment for a period of three months.
BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts giving rise to this appeal are that complainant Smt. Asha/respondent no.1 herein filed a complaint for offence punishable under Section 138 NI Act against accused Salauddin (appellant herein). The appellant was convicted and consequent order on sentence was passed by the trial court. Initially, the appeal was filed so as to challenge the judgment of conviction as well as order on sentence, however, on 04.04.2018 ld. counsel for appellant restricted this appeal only against order on sentence.
3. No particular ground was mentioned in the appeal against order on sentence.
ARGUMENTS :-
4. Ld. counsel for appellant submitted that since the trial court passed the substantive sentence of TRC i.e. one day only, therefore, the default sentence could not have been more than one fourth of the substantive sentence passed against the appellant. He further submitted that appellant was having poor financial condition, therefore, fine of Rs.3.5 lac should not have been imposed upon him which is not commensurate with financial condition of appellant.
5. Per contra, ld. counsel for respondent submitted that there is no such law to impose only one fourth sentence of substantive sentence awarded to the convict, in default of payment of fine. He further submitted that appellant owns a plot of land in Loni and has share in a property in Daryaganj also, therefore, he is not a financially poor Page 2 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 person. Ld. counsel submitted that such informations were being given by appellant and his family members during talk of settlement.
6. In rebuttal, ld. counsel for appellant submitted that there is no plot in Loni in the name of appellant, though, there is a property in the name of father of appellant in Daryaganj.
7. Ld. counsel for appellant later on filed a written arguments along with some case laws i.e. Jolly George Varghese & Anr v. The Bank of Cochin, AIR 1980 Supreme Court 470 and Shree Sainath Wires Pvt. Ltd. & Anr. v. PEC Limited & Anr., 236 (2017) Delhi Law Times 190. In the written arguments, it is also stated that appellant is suffering from multiple disease and is sole bread earner of his family consisting of wife and three children. One of his child is suffering from Thalassemia.
8. The case law of Jolly George (supra) was referred to point out observations made in para 10 of the judgment and the case law of Shree Sainath (supra) was referred to point out explanation regarding Section 30 Cr.P.C and to submit that default sentence cannot be awarded more than one fourth of substantive sentence awarded. It is further pleaded in this written argument that sentence to be set aside and appellant be granted time of at least 18 months to pay the minimum amount.
APPRECIATION OF ARGUMENTS AND FINDINGS :-
9. In the case of Jolly George (supra), Supreme Court dealt with provision of Section 51 read with order 21 rule 37 CPC, which relates to arrest and detention of judgment debtor in civil prison. The observations pointed out on behalf of appellant do not have any application to the facts of this case, for apparent reason that the case is to be decided on the basis of peculiar facts and law applicable Page 3 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 there to. In para 10 of aforesaid judgment, Supreme Court had taken note of poor condition of persons in this country and recovery of debts by procedure of putting one in prison in absence of proof of minimal fairness of willful failure of judgment debtor to pay in-spite of his sufficient means. This case law is, therefore, not applicable to present case, wherein appellant is a convict under Section 138 NI Act and the amount of compensation/ fine is to be imposed by the court on the basis of cheque amount.
10.It is relevant to refer to Section 138 NI Act, which provides for a sentence of fine upto double amount of the cheque amount besides any other sentence of imprisonment. Thus, the intent of the legislature is clear that in such proceedings the fine is to be imposed in accordance with the cheque amount, apart from other factors i.e. the time spent in the trial and the reasonable compensation for the victim/complainant.
11.In this case the cheque was issued for Rs.2.5 lac with date of
30.06.2016. On the date of order of sentence, one year five months had lapsed. If I calculate interest on this amount at the rate of 8% per annum, then for a period of one and half year the total interest on the amount of Rs.2.5 lac would be Rs.30,000/-. While imposing fine, the court has to see that no one is made to enreach himself unjustly. Even the compensation is to be awarded as per prevalent possibilities of financial gain in normal circumstances. In these circumstances, I find that compensation of Rs.2.5 lac + Rs.30,000/- was sufficient for the complainant. Since the resources of State was also exhausted on account of this litigation, therefore, a fine of Rs.10,000/- was sufficient for depositing with State. Thus, the total amount comes to Rs.2.9 lac, which is based on a reasonable Page 4 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 financial gain expected for the complainant out of cheque amount during the period lapsed in the trial of this case and reasonable compensation for the State. Hence, I do find that the fine of Rs.3.5 lac as imposed by ld. MM is not reasonable and accordingly, it is modified to Rs.2.9 lac, out of which Rs.2.8 lac would be payable to complainant as compensation and Rs.10,000/- shall be deposited with State.
12.Next question relates to a legal issue raised by ld. counsel for appellant regarding the maximum default sentence which could be awarded against the appellant. During arguments or in the written arguments, ld. counsel did not refer to any particular legal provision. However, reliance has been placed in the written arguments over the case of Shree Sainath (supra). In this case, Delhi High Court referred to section 30 of Cr.P.C., which deals with power of Magistrate to award default punishment. Delhi High Court had decided mixed question of two sentences running concurrently and the respective default punishment. In that case, Delhi High Court was dealing with the sentence passed against the petitioner in a number of complaint cases. The petitioner was sentenced to undergo simple imprisonment of one year and to pay fine of Rs. 51 lacs as compensation to the complainant. The default punishment was passed for simple imprisonment for six months. Delhi High Court had set aside the order on sentence, taking view of Section 30 Cr.P.C.
13.Section 30 Cr.P.C. provides that a Magistrate may award such term of imprisonment in default of payment of fine as is authorized by law. It further provides that the term should not be in excess of the powers of Magistrate under Section 29 Cr.P.C. It further provides that the term of default sentence shall not exceed one fourth of the term of Page 5 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 imprisonment which the Magistrate is competent to inflict as punishment for offence otherwise than as punishment in default. Sub clause 2 of this provision further provides that the imprisonment awarded in this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29 Cr.P.C.
14.As per Section 29 Cr.P.C, a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding three years. The maximum sentence for offence under Section 138 N.I. Act is imprisonment upto two years or fine or both.
15.Section 65 IPC is the another relevant provision to explain the legal principles. As per this provision "the term for which the court directs the offender to be imprisoned in default of payment of fine shall not exceed one fourth for the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine."
16.Thus, on combined reading of Section 65 IPC, Section 29 and 30 Cr.P.C., it emerges that a Metropolitan Magistrate can impose imprisonment in default of payment of a fine upto one fourth of three years (maximum punishment awardable by ld. MM as per Section 29 Cr.P.C.) or one fourth of maximum substantive punishment provided for the offence in question, whichever is lower. Since, Section 138 N.I. Act provides for maximum substantive sentence of imprisonment for a term upto two years, therefore, maximum default sentence can be awarded for a term of six months for such offence.
17.The interpretation of ld. counsel for appellant that one fourth of substantive sentence actually awarded to the convict is not correct because Section 65 IPC as well as Section 30 Cr.P.C. do not talk Page 6 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 about the one fourth of actual substantive punishment awarded to the convict. They talk about the maximum substantive imprisonment fixed for the offence or the maximum term of imprisonment awardable by the Magistrate as punishment for the offence.
18.It otherwise also does not make any sense to say that if a convict is awarded substantive sentence of imprisonment of one day, then the default sentence can be at the most one fourth of a day. Therefore, such contention of the appellant has to be rejected.
19.In the present case, ld. MM awarded default sentence for three months, which is within his power as per maximum sentence provided for offence under Section 138 N.I. Act and competence of ld. MM to award substantive imprisonment under Section 29 Cr.P.C. Therefore, I do not find any illegality committed by ld. MM in passing the default sentence.
20.I do not find any merit in the arguments that the fine imposed by trial court should not have been imposed keeping in view the poor financial condition of the appellant. The period of 18 months as demanded by appellant is too long period to be granted to him for the purpose of payment of fine. The plea of financial incapability was never substantiated before the trial court, rather appellant himself had shown willingness to settle the matter which means that he had the financial capacity to settle the dispute by making payment to the complainant. Instead of making arrangement of the required amount, appellant not only opted to seek a trial, but also caused adjournments in the case at various points of time on one or other pretext, so as to delay the trial.
21.In view of my foregoing discussion, observations and findings, appeal is partly allowed. While maintaining the conviction of the Page 7 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.21/2018 appellant, sentence against appellant is modified in the terms that apart from sentence of TRC, he shall be liable to pay fine of Rs. 2.9 lacs, out of which Rs. 2.8 lacs shall be payable to complainant as compensation and Rs. 10,000/- shall be deposited with the State. In default of payment of fine, appellant shall suffer simple imprisonment for a term of three months and fine shall be recoverable as per section 421 read with section 431 Cr.P.C.
22.TCR be sent back along with copy of judgment. File be consigned to record room, as per rules. Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3, PRAMACHALA Karkardooma Courts, Delhi Date: 2018.04.07 14:36:54 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 07.04.2018 Special Judge (PC Act) CBI, East (This order contains 8 pages) Karkardooma Courts, Delhi Page 8 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi