Delhi District Court
M/S. Shree Naurang Godavari ... vs Page 1 Of 30 (Pulastya Pramachala) on 21 January, 2019
Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 &
Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal : 53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18
Nos.
Under Section : 138 Negotiable Instruments Act, 1881.
Police Station : Preet Vihar
CC Nos. : 823/13(New No.53711/16), 825/13(New No.
53694/16), 831/13(New No.53822/16), 832/13
(New No.53827), 02/13 (New No.48785/16), 824/
13(New No.53693/16) & 03/2013 (New No.
50553/16).
CNR Nos. : DLET01-003164-2018, DLET01-003203-2018,
DLET01-003207-2018, DLET01-003206-2018,
DLET01-003208-2018, DLET01-003209-2018
& DLET01-003210-2018.
In the matter of Crl. Appl. Nos.53/18, 55/18, 56/18, 57/18, 58/18,
59/18 & 60/18 :-
1. M/S. SHREE NAURANG GODAVARI ENTERTAINMENT LTD.
(Through its Director Sh. Rajpal Navrang Yadav)
Registered Office :- B-53, 209, Government Housing Scheme,
Siddarth Nagar Phase-2, Near Prabodhan Theatre, Goregaon (West)
Mumbai-400104.
2. SH. RAJPAL NAVRANG YADAV
Director of M/s. Shree Naurang Godavari Entertainment Ltd.
S/o. Sh. Navrang Munshi Lal Yadav,
R/o. Flat No.801, 'B' Wing, Amogh Vasundhara Co-op. Housing
Society, Opposite 'Chroma', Juhu Ville Parle, Mumbai-400049.
3. MRS. RADHA RAJPAL YADAV
Managing Director of
M/s. Shree Naurang Godavari Entertainment Ltd.
W/o. Sh. Navrang Munshi Lal Yadav,
R/o. Flat No.801, 'B' Wing, Amogh Vasundhara Co-op. Housing
Society, Opposite 'Chroma', Juhu Ville Parle, Mumbai-400049.
............APPELLANTS
VERSUS
Page 1 of 30 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 &
Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
1. M/S. MURLI PROJECTS PVT. LTD.
(Through its Authorized Representative Sh. Rajiv Sharma)
Registered Office :- 304, Roots Tower, Laxmi Nagar, District Centre,
Delhi-110092.
2. STATE OF NCT OF DELHI ........RESPONDENTS
Date of Institution : 16.05.2018 (in CA No.53/18)
17.05.2018 (in remaining 6 appeals)
Date of reserving judgment : 17.01.2019
Date of pronouncement : 21.01.2019
Decision : All 7 appeals are partially allowed.
AND
Criminal Revision : 124/18, 125/18, 126/18, 127/18, 128/18, 129/18 &
Nos. 130/18.
Under Section : 138 Negotiable Instruments Act, 1881.
Police Station : Preet Vihar
CC Nos. : 823/13(New No.53711/16), 825/13(New No.
53694/16), 831/13(New No.53822/16), 832/13
(New No.53827), 02/13 (New No.48785/16),
824/13(New No.53693/16) & 03/2013 (New
No.50553/16).
CNR Nos. : DLET01-004357-2018, DLET01-004355-2018,
DLET01-004354-2018, DLET01-004358-2018,
DLET01-004360-2018, DLET01-004359-2018
& DLET01-004356-2018.
In the matter of Crl. Revision Nos.124/18, 125/18, 126/18, 127/18,
128/18, 129/18, 130/18 :-
M/S. MURLI PROJECTS PVT. LTD.
(Through its Authorized Representative Sh. Rajiv Sharma)
Registered Office :- 304, Roots Tower, Laxmi Nagar, District Centre,
Delhi-110092.
.............PETITIONER
Page 2 of 30 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 &
Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
VERSUS
1. M/S. SHREE NAURANG GODAVARI ENTERTAINMENT LTD.
(Through its Director Sh. Rajpal Navrang Yadav)
Registered Office :- B-53, 209, Government Housing Scheme,
Siddarth Nagar Phase-2, Near Prabodhan Theatre, Goregaon (West)
Mumbai, Maharashtra-400104.
2. SH. RAJPAL NAVRANG YADAV
S/o. Sh. Navrang Munshi Lal Yadav,
Director of M/s. Shree Naurang Godavari Entertainment Ltd.
R/o. Flat No.801, 'B' Wing, Amogh Vasundhara Co-op. Housing
Society, Opposite 'Chroma', Juhu Vile Parle, Mumbai-400049.
3. MRS. RADHA RAJPAL YADAV
W/o. Sh. Navrang Munshi Lal Yadav,
Managing Director of
M/s. Shree Naurang Godavari Entertainment Ltd.
R/o. Flat No.801, 'B' Wing, Amogh Vasundhara Co-op. Housing
Society, Opposite 'Chroma', Juhu Ville Parle, Mumbai-400049.
........RESPONDENTS
Date of Institution : 07.07.2018
Date of reserving judgment : 17.01.2019
Date of pronouncement : 21.01.2019
Decision : All 7 petitions are partially
allowed.
COMMON JUDGMENT
1. Vide this common judgment, I shall decide seven criminal appeals and seven criminal revisions. The criminal appeals have been preferred against respective judgments of conviction all dated 13.04.2018 and respective orders on sentence all dated 23.04.2018, passed by trial court in seven separate complaint cases all titled as M/s. Murli Projects Pvt. Ltd. v. M/s. Shree Naurang Godavari Entertainment Ltd. & Ors., bearing CC Nos.823/13(New No. Page 3 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
53711/16), 825/13(New No.53694/16), 831/13(New No.53822/16), 832/13(New No.53827), 02/13 (New No.48785/16), 824/13(New No.53693/16) & 03/2013 (New No.50553/16), all under Section 138 Negotiable Instruments Act (hereinafter referred to as the Act), PS Preet Vihar. Vide impugned judgments of conviction dated 13.04.2018, trial court convicted accused no.1 company i.e. M/s. Shree Naurang Godavari Entertainment Ltd., accused no.2/Sh. Rajpal Navrang Yadav and accused no.3/Mrs. Radha Rajpal Yadav for offence punishable under Section 138 NI Act, in each complaint case. Vide impugned orders on sentence dated 23.04.2018, trial court sentenced convict no.2/Sh. Rajpal Navrang Yadav to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1.6 crore in each complaint case and in default of payment of fine, he was to suffer simple imprisonment for a period of six months. Out of fine of Rs.1.6 crore, Rs.1,59,50,000/- was to be paid to the complainant and remaining amount of fine of Rs.50,000/- was to be paid to the State, in each complaint case. Vide same impugned orders on sentence dated 23.04.2018, trial court also sentenced convict no.3/Mrs. Radha Rajpal Yadav to pay fine of Rs.10 lac to the complainant in each complaint case and in default of payment of fine, she was to suffer simple imprisonment for a period of three months.
2. The criminal revisions have been preferred by complainant against order on sentence dated 23.04.2018 in each seven complaint. BRIEF FACTS OF THIS CASE :-
3. Briefly stated, the relevant facts giving rise to these appeals and revisions are that Sh. Rajiv Sharma being authorized representative of M/s. Murli Projects Pvt. (having its registered office at 304, Roots Page 4 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
Tower, Laxmi Nagar, District Center, Delhi-110092), filed seven complaint cases against M/s. Shri Naurang Godavari Entertainment Pvt. Ltd and its directors namely Sh. Rajpal Navrang Yadav and Smt. Radha Rajpal Yadav, for offence under Section 138 NI Act. These separate seven complaint cases pertained to dishonour of cheques in question arising out of a common transaction. In discharge of their liability, seven different cheques were alleged to be issued on behalf of M/s. Shree Naurang Godavari Entertainment Ltd. in favour of M/s. Murli Projects Pvt. Ltd., pertaining to seven different complaint cases, which are as follows :-
CC No. Date of Cheque Cheque Date of Reason of Date of Date of institution no. & date amount cheque dishonour issuance service returning of cheque of legal of legal memo demand demand notice notice 823/13 16.04.13 021682 dt. 1.5 crore 23.02.13 Funds 02.03.13 04.03.13 21.02.13 Insufficient 825/13 16.04.13 021680 dt. 1.5 crore 22.02.13 Insufficient 26.02.13 28.02.13 16.02.13 Funds 831/13 01.05.13 021681 dt. 1.5 crore 25.02.13 Insufficient 13.03.13 11.07.13 25.02.13 Funds 832/13 01.05.13 021683 dt. 1.5 crore 28.02.13 Insufficient 14.03.13 16.03.13 28.02.13 Funds 02/13 04.03.13 021679 dt. 1.5 crore 31.01.13 Funds 05.02.13 07.02.13 31.01.13 Insufficient 824/13 16.04.13 021684 dt. 1.5 crore 23.02.13 Funds 27.02.13 01.03.13 18.02.13 Insufficient 03/13 04.03.13 021678 dt. 1.5 crore 16.01.13 Funds 02.02.13 04.02.13 15.01.13 Insufficient
4. In all seven complaint cases, Sh. Rajiv Sharma led pre-summoning evidence, thereafter, accused persons were summoned vide orders dated 21.03.2013 in CC Nos.02/13 and 03/13, dated 20.04.2013 in CC Nos.823/13, 824/13 and 825/13 and dated 01.05.2013 in CC Nos.831/13 and 832/13. Thereafter, on 18.12.2013 trial court framed notice under Section 251 Cr.P.C against accused persons in all Page 5 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
seven cases, to which they pleaded not guilty and claimed trial. Sh. Rajiv Sharma was examined as CW1 and Sh. Madho Gopal Agarwal was examined as CW2. Thereafter, on 07.01.2017 statement of Sh. Raj Pal Navrang Yadav was recorded under Section 281 Cr.P.C and also on the part of accused company being AR. On same day, statement of Smt. Radha Raj Pal Yadav was also recorded under Section 281 Cr.P.C. Sh. Raj Pal Yadav examined himself as DW1 on 11.04.2017, in his defence evidence.
5. Final arguments were heard and trial was concluded by convicting accused no.1 company i.e. M/s. Shree Naurang Godavari Entertainment Ltd., accused no.2/Sh. Rajpal Navrang Yadav and accused no.3/Mrs. Radha Rajpal Yadav, vide impugned judgments of conviction dated 13.04.2018 and orders on sentence were passed against convicts vide impugned orders dated 23.04.2018, in all seven complaint cases.
GROUNDS TAKEN IN SEVEN CRIMINAL APPEALS :-
6. Being aggrieved of the impugned judgments of conviction and orders on sentence, convict nos.1, 2 and 3 have preferred seven criminal appeals mainly on the following relevant grounds :-
● That ld. MM ignored the consent agreement dated 21.04.2013 executed between the parties. Trial court ignored that seven cheques in question emanating from the agreement dated 09.08.2013 executed between the parties, had become null and void in the eyes of law after executing consent agreement dated 21.04.2013.
● That trial court ignored the terms and conditions of the consent agreement dated 21.04.2013 executed between the parties, which Page 6 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
was validated by the High Court of Delhi vide its order dated 24.05.2013 and 06.08.2013. Trial court also ignored that the said agreement was validated in the main suit instituted against convict no.1 company in CS(OS) 3037/2012, upon which a consent decree dated 27.01.2016 was passed by High Court of Delhi. ● That trial court did not have jurisdiction to try the aforesaid seven criminal complaints after 27.01.2016 i.e. after passing consent decree by High Court.
● That trial court improperly proceeded with the complaints post 21.04.2013 or 27.01.2016 and passed the impugned judgments of conviction and orders on sentence, thereby directing recovery of money from respondent no.1. Though, aforesaid seven complaints under challenge ought to have been dismissed or withdrawn as post 21.04.2013 they were not maintainable.
● That trial court failed to appreciate that the amount given by complainant company was not loan, but investment, which was subject to profit and loss depending upon the outcome of movie produced by convicts.
● That trial court failed to appreciate that CW1 in his cross- examination admitted receipt of part payment of Rs.1.58 crore. ● That trial court failed to appreciate that complainant company admitted in cross-examination dated 30.04.2016 that they were the construction company and had no license for advancing finance. Even trial court failed to acknowledge the infirmities appearing in the balance sheet of the company or that convict no.1 company could have given money in the name of investment only and not as loan.
Page 7 of 30 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
● That trial court did not appreciate that the transaction entered into between the parties was illegal and against the provisions of the Usurious Loan Act 1918 and convicts are not liable to pay interest at the rate of 30% under usurious interest.
● That trial court ignored the factum that the financier CW2/Sh. Madho Gopal Agarwal in his cross-examination dated 24.09.2016 admitted that they had taken injunction from the High Court of Delhi being financier of the movie, though it is unrealistic that a financier would call a conference against a movie, in which he had invested/financed money just to rupture the career of convict no.2. ● That trial court ought to have appreciated that fate of all the agreements executed between the parties and security cheques given by convicts, were dependent on the fate of the movie on the Box Office. Complaint company was creating hurdles in getting the same released, which had caused its failure.
● That trial court ought to have taken cognizance of CW1 and CW2 in their cross-examination in faking ignorance of Consent Decree passed by High Court of Delhi and Consent Agreement dated 21.04.2013 (Ex.CW1/D5).
● That trial court completely ignored admission of CW2 in para no.2 of his evidence affidavit, wherein it was stated that the loan given to the convicts was for completion, distribution and release of movie 'Atta Pata Lapata'. However, complainant company by getting an injunction order, delayed the release of same, leading to the same being flopped on the Box Office.
● That trial court committed judicial impropriety in placing reliance upon the first and second supplementary agreements and Page 8 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
completely overlooking the final consent agreement dated 21.04.2013.
● That trial court did not appreciate that it was an admitted fact that the release of the film 'Atta Pata Lapta' was the pre-condition for payment of any kind of amount by convicts to complainant company. Any legal liability for the said amount could only had arisen post release of the film and in no manner earlier. Eight security cheques were to be returned by complainant company to the convicts, once payment was made by the convicts and in no manner they were to be presented or encashed.
● That trial court ignored the conduct of complainant company, as to himself ensure that the entire film crashes down and no revenue got generated from the same. On 20.09.2012 rather than assisting convicts in successful release of the film and promoting it, complainant company had filed Civil Suit before High Court of Delhi and challenged third supplementary agreement dated 09.08.2012. Complainant company not only stayed the release of the film, but also got the convicts restrained from collecting any revenue/profits from the sale/distribution of the film, vide order dated 03.10.2012.
● That trial court did not appreciate that complainant company violated pre-condition of the third supplementary agreement viz. liability to pay the amount decided in the agreement only after successful release of the film. Hence, after order dated 03.10.2012 no legal liability remained in existence on the part of convicts, in lieu of seven security cheques. The said film could not generate the expected revenue, due to hurdles created by Page 9 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
complainant company in its release.
● That trial court ignored the fact that when the subject matter of dispute was earlier sub judice before High Court of Delhi, then complainant company ought to have taken leave of the High Court of Delhi in presenting said seven security cheques or at least sought permission from the convict for the same.
● That trial court was wrong in holding that the cheques in dispute were issued in lieu of the legally enforceable debt. APPRECIATION OF EVIDENCE AND ARGUMENTS AS WELL AS FINDINGS :-
7. As per undisputed facts of the case, initially an agreement was executed between complainant and convicts on 30.05.2010 in respect of repayment of a loan extended by complainant in the sum of Rs.5 crores to the convicts. Six post dated cheques were issued by convicts for total sum of Rs.8 crores towards repayment of aforesaid loan along with interest. However, that promise could not be honored by the convicts. Thereafter, another supplementary agreement was executed between both the parties on 21.09.2011, referring to failure of convicts to make payment of Rs.8 crores as per previous agreement on the respective due dates. As per this supplementary agreement, complainant had agreed to receive amount of Rs.8 crores along with interest of Rs.1,38,06,332/- and thus, once again six post dated cheques were issued by convicts in favour of complainant for total sum of Rs.9,38,06,332/-. The last cheque was payable on 31.12.2011, however, once again convicts failed to make such payment. Therefore, another supplementary agreement was executed on 04.04.2012, under which fresh amount Page 10 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
was fixed to be paid by convicts to complainant after addition of interest, for total sum of Rs.10,72,52,745/- and this time convicts issued 11 post dated cheques for aforesaid sum. The last cheque was payable on 30.09.2012. Once again, convicts failed to make payment of aforesaid amount and finally another agreement dated 09.08.2012 was executed between the parties vide which convicts undertook to pay total sum of Rs.11,10,60,350/- to the complainant towards clearing outstanding debts with interest. This amount was settled after adjustment of Rs.40 lacs paid by convicts to the complainant and after addition of interest for delayed period. Once again, convicts issued eight post dated cheques for total sum of Rs.11,10,60,350/-, the last cheque being payable on 28.02.2013. All these cheques were issued towards clearing the outstanding debt. However, on presentation of seven out of eight cheques given in pursuance to aforesaid agreement, same were dishonoured on the grounds of insufficient funds, which resulted into seven complaint cases in question being filed by the complainant. At the same time, complainant company also took civil remedy and a civil suit no.3037/2012 came into existence before High Court of Delhi for recovery of amount against the same liability. Before High Court of Delhi, once again parties settled their dispute on 21.04.2013, on the basis of which a consent decree was passed by Delhi High Court in aforesaid civil suit. This settlement had taken place basically in a contempt proceeding, because of failure of convict no.2 to comply with the undertakings given before Delhi High Court to make certain payments.
8.In the present case, argument was raised before trial court as well as Page 11 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
before this court that with execution of agreement dated 21.04.2013 before High Court of Delhi, the agreement dated 09.08.2013 became null and void. Therefore, cheques in question also became redundant and without any liability. Argument was also advanced that since new cheques were given out of consent agreement before Delhi High Court, therefore, cheques in question could not be payable any more. In the impugned judgments, ld. ACMM (East) has dealt with this argument and negated this argument.
9.It is borne out from clause 6 of the consent agreement dated 21.04.2013 itself, that it was agreed between the parties before Delhi High Court that in case payments undertaken in that agreement were not made, then complainant shall be at liberty to proceed with the criminal cases herein. As per that agreement, these cases were to be withdrawn by the complainant only on complete payment of Rs.10.4 crores, as agreed before Delhi High Court in aforesaid agreement. Therefore, I do find that such argument of convicts is fallacious and without any merit. For same reasons, it cannot be said that trial court did not have jurisdiction to try the criminal complaints in hand, after consent decree being passed by High Court of Delhi. For the purpose of complaints in hand, the liability qua cheques in question should have been there on the date of presentation of the cheques and for the purpose of filing of complaints, the requirement was that despite lapse of 15 days from the date of service of demand notice, such payments were not made.
10.Another argument/ground was raised on behalf of convicts that the amount given by complainant was in the form of investment, rather than loan and hence, it was subject to profit/loss earned out of movie Page 12 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
produced by convicts. Ld. ACMM (East) dealt with this argument also and rejected the same. To appreciate this argument, it is appropriate to refer to clause 4 of first agreement executed between the parties on 30.05.2010. This clause mentioned that the complainant was to extend inter corporate loan in the sum of Rs.5 crores to the convicts for the purpose of using the same in producing and releasing of a film 'Ata Pata Laapata'. Clause 6 of this agreement mentioned that convicts herein would refund the entire principle amount of Rs.5 crores lent by complainant on or before 31.03.2011. Clause 7 of that agreement further mentioned about liability of convicts herein to pay a sum of Rs.2.5 crores towards interest, cost etc. on the aforesaid loan and Rs.50 lac towards management cost of arranging the funds etc. Thus, as per clause 8 of that agreement, convicts herein had to refund Rs.8 crores to the complainant. Such specific terms of aforesaid agreement could not be substituted with oral assertion of the convicts. Furthermore, the subsequent agreements executed between the parties, were entered into by convicts herein with promise to return certain sum of money including interest on account of delay in payment. Convicts also went on to issue post dated cheques every time during execution of every agreement. Had it been actually the intention of the parties that complainant was investing Rs.5 crores in the production of aforesaid movie, then there could not have been any occasion for the convicts to promise to return a particular sum of money and to issue post dated cheques. In case of investment, if return for the complainant was to be dependent upon profit/loss earned by aforesaid movie, then there could not have been any occasion to quantify the money to be returned to the Page 13 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
complainant, at the time of receiving such amount of Rs.5 crores itself. Therefore, I do not find any merit in this argument as well.
11.Another argument/ground was raised on behalf of convicts that complainant company had no license to advance finance and trial court failed to acknowledge the infirmities appearing in the balancesheet of the complainant company. In my opinion, these arguments cannot be entertained at all, because after having received loan from complainant company against interest, convicts are stopped from challenging the competence of complainant company to extend such loan. Convicts cannot usurp the loan amount on the basis of aforesaid grounds at all. Hence, this argument has to be rejected.
12.Convicts have also raised another argument/ground that transaction between the parties was illegal and against the provisions of Usurious Loan Act, because convicts were not liable to pay interest at the rate of 30%. It has to be appreciated that such terms of interest rate were consciously agreed upon by the convicts, while taking amount of Rs.5 crores from the complainant. Convicts time and again kept buying time to repay the amount, but they failed and every time they kept promising to return the amount with interest at such rate. Section 3 of the Usurious Loan Act, 1918, talks about a civil suit and provides that the court may reopen the transaction and declare the interest to be excessive. Therefore, such plea was to be taken by convicts in civil suit, which was pending before High Court of Delhi. If such declaration would have been passed by the civil court under that Act, there could have been a reason to entertain this plea in the present criminal proceeding. In absence of any such declaration of Page 14 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
civil court, such plea cannot be entertained herein.
13.Convicts have also referred about injunction being taken by complainant from High Court of Delhi and about fate of the movie on the box office. However, these grounds/arguments are insignificant in view of the agreed findings given that convicts were under debt to repay loan with interest to the complainant. Therefore, these factors do not have any bearing on the decision of these cases.
14.Convicts have also raised grounds that before presenting the cheques leading to criminal complaints in hand, complainant should have taken permission either from High Court of Delhi or from the convicts. However, once again I find such arguments to be merit less for simple reason that no law provides that to present cheque against liability or to institute a criminal complaint under Section 138 NI Act, the complainant has to take permission from the civil court or from the proposed accused persons. The only requirement to present the cheques was that the liability qua those cheques was subsisting. There was no change in that liability on account of proceedings being pending before High Court of Delhi.
15.In the additional grounds filed on the record, convicts further took plea that CW1/Sh. Rajiv Sharam was not a competent witness to depose on behalf of complainant company, because the resolution Ex.CW1/2 was executed on 28.01.2013, when there was no cause of action to file the complaints in hand. However, once again, I find that this argument is not impressive for the reasons that the resolution dated 28.01.2013 passed by Board of Directors of complainant, authorized Mr. Rajiv Sharma to sign and file affidavit as well as any pleading for filing criminal or civil cases on behalf of complainant Page 15 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
company and to appear on behalf of complainant company as Attorney. He was also empowered to appear as witness on behalf of complainant company. It was not necessary that after accrual of cause of action to file criminal complaints herein, a fresh board resolution was required to be passed. Moreover, CW1 was expected to depose as per his personal knowledge and information or on the basis of record of the company. Therefore, to become a witness, in my opinion there is no requirement to be authorized by concerned company. Such requirement is only for the purpose of filing a complaint on behalf of a juristic person. Such requirement was duly satisfied in the cases in hand and hence, there is no merit in this argument.
16.Ld. counsel for convicts also referred to a judgment cited as Venkatesh Dutt v. M/s. M.S. Shoes East Limited, 2004 II AD (Delhi), to submit that after fresh cheques given out of consent agreement dated 21.04.2013, the criminal complaints instituted on the basis of previous cheque, could not be continued and were liable to be dismissed. It is worth to mention here that in the aforesaid case, Delhi High Court observed that :-
"by no stretch of imagination complaints under Section 138 NI Act relating to several cheques given by a party to the complainant on account of the agreement between the parties towards liability against initial cheque leading to the filing of original complaint can be allowed to go simultaneously..............Once the parties enter into an agreement during the pendency of such complaint or proceedings and complainant accepts the cheques given by the accused in lieu of the subject matter of original complaint, every cheque gives rise to a fresh cause of action if it, on presentation is dishonoured as in that case original complaint becomes extinct. Aggrieved person has a right to file as many complaints as many cheques were given to him. As every cheque under the Act provides an independent and fresh Page 16 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
cause of action to the aggrieved person. Even otherwise, it is difficult to accept that two parallel proceedings, one emanating from the original cheque and others emanating from the terms of the agreement between the parties, can be allowed to run simultaneously. If the earlier complaint is also allowed to continue along with the subsequent complaints, then the very purpose of agreement between the parties and issuance of fresh cheques become meaningless as fresh cheques issued by a party are towards the original liability that gave rise to the initial complaint filed under Section 138 NI Act."
17.The aforesaid observations would make it clear that such observations were made in case of two parallel proceedings going on for offence under Section 138 NI Act, out of one liability. Had it been a case herein that complainant would have also instituted fresh complaint on the basis of dishonor of cheques handed over on execution of consent agreement dated 21.04.2013, there would have been a ground to say that complainant was prosecuting convicts in two parallel proceedings simultaneously in respect of same liability. However, it is not the case herein. Complainant did not institute fresh complaint on the basis of cheques received on execution of consent agreement dated 21.04.2013, therefore, this argument is also not acceptable.
18.Another argument had been raised on behalf of convicts that trial court while imposing sentence of fine on convict no.3, mentioned about adjustment of amount paid in terms of consent decree, being adjusted towards the fine, from the date of order. It was argued that such adjustment should be of the amount paid during pendency of the complaint, before any court of law and not from the date of order of sentence. Reliance was placed upon case law titled as D. Purushotama Reddy & Anr. v. K. Sateesh, 2008 (4) RCR Page 17 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
(Criminal). In the aforesaid case, Supreme Court was dealing with a question that whether any suit for recovery of money on a cheque issued by the defendant, but dishonored, the amount received by the plaintiff and creditor in a criminal proceeding should be adjusted? This question would show that the Supreme Court was dealing about adjustment of any amount paid during criminal proceeding, while preparing a decree in civil proceeding and in that background Supreme Court observed that the court should take into consideration the amount of compensation deposited in criminal case and should draw up a fresh decree after taking into consideration the amounts deposited. This is not the situation in the present case. No amount was deposited in the present case as compensation, nor it is a civil proceeding to modify the decree accordingly.
19.Section 138 NI Act empowers the court to impose fine up to double of the cheque amount. While deciding any such amount of fine, the court also takes care of time spent in the trial as well as other factors. I find that ld. ACMM had imposed fine of Rs.1.6 crores in each case against cheque amount of Rs.1.5 crores, against convict no.2 and Rs.10 lac in each case against convict no.3. During arguments both parties were asked to furnish details of payments made to complainant in respect of liability in question. It is admitted situation that since 30.04.2012 till 19.06.2018 a total sum of Rs.19140350/- was paid to complainant on behalf of convicts. Ld. ACMM in the orders on sentence observed that "further payment made by the convict starting from this date before the hon'ble High Court towards the consent decree shall be adjusted towards the fine which this court has awarded today." As per this order, amount of Page 18 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
Rs.14640350/- would not be adjusted towards the fine, though so much of amount has been paid to the complainant. This is not the meager amount to be ignored, while imposing fine and giving direction for payment of compensation to the complainant. One cannot loose sight of the fact that complainant did avail civil remedy before High Court of Delhi for recovery of amount against same liability. Complainant had the opportunity to seek all kind of compensation in the civil proceedings, but complainant limited his demand to Rs.10.4 crores in the consent agreement. These factors do have bearing over sentence being passed in proceedings under Section 138 NI Act. Therefore, I find that the approach adopted by ld. ACMM was incomplete, to take into account the payments already made to complainant regarding same liability. However, I shall give my final conclusion regarding sentence, after dealing with rival contentions made in criminal revisions.
20.The last ground/argument raised on behalf of convicts was that trial court could not award default sentence for none payment of fine. Ld. counsel referred to case law cited as Ahammed Kutty v. Abdullakoya, 2008 (4) RCR Criminal 763 SC. In this case, Supreme Court held that while exercising jurisdiction under Section 357(3) Cr.P.C, no direction can be issued for any default to pay the amount of compensation, that the accused shall suffer simple imprisonment. On the other hand, ld. counsel for the complainant referred to latest judgment from Supreme Court cited as Kumaran v. State of Kerala, 2017 (2) LRC 513 (SC), wherein Supreme Court while referring to Section 431 and Section 421 Cr.P.C in-conjunction with Section 64 and Section 70 IPC, held that sentence of Page 19 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
imprisonment for non payment of fine must also be included as applying directly to compensation under Section 357(3) Cr.P.C as well. Supreme Court also took note of judgment based in R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721, wherein Supreme Court dealing with a case for offence under Section 138 NI Act itself, held that "if Section 421 of the court puts compensation ordered to be paid by the court on a par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 IPC." In view of such categorical law explained by Supreme Court in aforesaid two cases, it cannot be held that a default sentence of imprisonment could not be awarded by trial court, for non payment of fine including portion of compensation.
21.It is further more relevant to mention herein that fine imposed in the cases in hand cannot be termed as order being passed under Section 357(3) Cr.P.C. Section 357(3) Cr.P.C is applicable to those cases, wherein court imposes a sentence of which fine does not form a part and the court orders the accused to pay compensation amount to sufferer/victim. On the other hand, Section 357(1) Cr.P.C refers to a situation where court imposes a sentence of fine or a sentence of which fine forms a part, wherein the court may pass order to apply some part of that fine in the payment to any person as compensation. Thus, the situation herein refers to Section 357 (1) Cr.P.C, rather than under Section 357(3) Cr.P.C, because the trial court had imposed a fine upon convict no.2 as well as convict no.3 and had directed a part of fine imposed upon convict no.2 to be paid to complainant as Page 20 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
compensation.
22.In view of my foregoing discussions, findings and observations, I do not find any merit in the criminal appeals preferred by the convicts against impugned judgments of conviction. However, a decision has to be taken in respect of orders on sentence, which shall be taken at the end of this judgment, after dealing with plea raised in criminal revisions.
GROUNDS TAKEN IN SEVEN CRIMINAL REVISION PETITIONS :-
23.Being aggrieved of the impugned orders on sentence dated 23.04.2018 in aforesaid seven complaint cases, Sh. Sompal Ruhil being Authorized Representative of complainant company i.e. M/s. Murli Projects Pvt. Ltd., has preferred seven criminal revision petitions mainly on the following relevant grounds :-
● That impugned orders on sentence dated 23.04.2018 passed by trial court is unjust, unfair, unreasonable and against the facts and law.
● That sentence awarded to convicts is neither adequate nor in consonance with the sprite of the provisions of Section 138 of NI Act.
● That trial court erred by awarding lighter punishment/sentence to convicts, who deserved to be awarded maximum punishment/ sentence as provided under Section 138 of NI Act. ● That trial court erred in not awarding any sentence of imprisonment to convict no.3, when it is established that she had signed the cheques in the capacity of managing director of convict company.
● That trial court did not mention any reason to show leniency in Page 21 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
favour of convict no.2 by imposing insignificant sentence. ● That trial court did not disclose any reason to show leniency in favour of convict no.3, by imposing insignificant sentence by way of fine only.
● That trial court failed to consider that object behind introduction of Chapter XVII in the Negotiable Instruments Act 1881, by virtue of banking, public financial institutions and Negotiable Instruments law (Amendment) Act 1988, was with a view to encourage the culture of use of cheques and enhancing the credibility of the negotiable instruments.
● That trial court failed to pass a sentence to give proper effect to the object of legislation, which says that no drawer of cheque could be allowed to take dishonor of the cheque issued by him lightly.
● That sentence awarded to convicts could be termed to be a flea bite sentence as convict no.3 was let off with a meager sentence of fine only.
● That trial court committed an illegality, while awarding no sentence of imprisonment to convict no.3 on the ground that she was only a signatory, who signed the cheques on the asking of convict no.2 and she is a woman. Gender of accused cannot earn her any immunity from imposing substantive sentence. Convict no.3 had signed four agreements of loan dated 30.05.2010, 21.09.2011, 04.04.2012 and 09.08.2012 with complainant company and played active role in the commission of offence.
● That convict no.3 is the signatory of cheques and incharge of the affairs of business of convict no.1 company with convict no.2.
Page 22 of 30 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
Therefore, she is liable to be punished with the sentence of imprisonment.
● That trial court exceeded its jurisdiction by passing the order that payment made by convicts from the date of sentence i.e. 23.04.2018, towards the consent decree, should be adjusted towards the fine awarded to him, as both are separate proceedings and complainant company is entitled to avail criminal as well as civil remedies.
APPRECIATION OF ARGUMENTS :-
24.Ld. counsel for petitioner/complainant company argued that trial court did not pass order of sufficient sentence against the convicts and was too lenient for them. He further submitted that the sentence awarded to convict no.2 was too short, though keeping in view the conduct of convicts maximum sentence should have been passed and even amount of compensation should have been double of the cheques amount. He further submitted that trial court was too lenient for convict no.3, being guided by her gender, though this factor was not relevant to award sentence of imprisonment against convict no.3. Ld. counsel referred to State of Himachal Pradesh v. Nirmala Devi, (2017) 7 SCC 262, to support his argument that gender of the convict no.3 could not be treated as an mitigating factor. He further referred to case laws cited as Suganthi Suresh Kumar v. Jagdeeshan, 2002 (1) JCC 315 and L.N. Chaturvedi v. State & Ors., CRL. Rev.P.No.515/11 & Crl.M.A.No.2905/11, decided by High Court of Delhi on 11.04.2012, to submit that since convicts did not pay the cheque amount, therefore, severe punishment should have been awarded against convicts.
Page 23 of 30 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
25.Per contra, ld. counsel for convicts challenged the maintainability of revision petitions itself, submitting that there is no provision to entitle the complainant to file revision petition against order on sentence. He further referred to judgment passed by High Court Delhi in the case of Bhajanpura Credit Society Ltd. v. Sushil Kumar, CRL.A.972/2012, decided by High Court of Delhi on 03.09.2014, to submit that complainant in a case under Section 138 NI Act is not even recognized as victim and hence, even Section 372 Cr.P.C cannot come to his aid. Ld. counsel further submitted that Section 377 Cr.P.C empowers the State Government to prefer appeal against sentence and therefore, only State could have challenged the impugned orders of sentence under Section 377 Cr.P.C.
26.The aforesaid argument of convicts was countered by ld. counsel for petitioner/complainant with support of judgment passed by Karnataka High Court in the case of Nagraj v. Gowramma, IV (2004) BC 44 and on the support of judgment passed by Madras High Court in the case of J.S. Agencies & Ors. v. M/s. Namakkal South India Transports, 1999 (1) Crimes 70, submitting that revision petitions were entertained in these cases against order of sentence.
27.I shall first of all deal with the legal issue of maintainability of the revision petitions. From the arguments made on behalf of convicts and on the basis of judgment passed by High Court of Delhi in the case of Bhajanpura Credit Society Ltd. (supra), it is very much clear that complainant could not have resorted to Section 372 Cr.P.C against orders on sentence, because Delhi High Court in aforesaid case has held that complainant in cases under Section 138 NI Act is not a victim as referred in Section 372 Cr.P.C.
Page 24 of 30 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
28.Section 377 Cr.P.C is also not available to a complainant in order to appeal against sentence, as this provision is applicable for State. It is well apparent that Section 377 Cr.P.C could be invoked by the State only where State would have been a prosecuting agency. Though, Section 377 Cr.P.C. does not refer to nature of cases in which such appeal against sentence could be filed, however, in cases under Section 138 NI Act State is not the prosecuting agency and State has nothing to do with such cases. In that situation, State is not expected to be aggrieved of order on sentence.
29.On the other hand, Section 397 Cr.P.C provides that High Court or Sessions Judge may examine record of any proceeding before inferior criminal court to satisfy itself or himself as to correctness, legality and propriety of any finding, sentence or order etc. Thus, this provision specifically refers to sentence passed by an inferior criminal court, which can be looked into by a Sessions Judge under Section 397 Cr.P.C. In the back drop of such statutory provision, the observations made by Karnataka High Court in the case of Nagraj (supra) so as to validate a revision petition being filed before a Sessions Judge for inadequacy of sentence, assume importance. Similar was the finding given by Madras High Court in the case of J.S. Agencies (supra). Therefore, I find that all the revision petitions are well maintainable against impugned orders on sentence, on the grounds of inadequate sentence.
30.Now, I shall deal with the merit of contentions raised by complainant against sentence. The judgment passed by Supreme Court in the case of Nirmala Devi (supra), was pressed into to plead equality among convicts and to seek sentence of imprisonment against Page 25 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
convict no.3, who is wife of convict no.2. Ld. ACMM (East) while passing orders on sentence, observed that convict no.3 was only a signatory to cheques being wife of convict no.2 and she signed those cheques on asking of convict no.2. She was a woman and keeping in view her medical condition, no sentence of imprisonment was awarded against her.
31.The observations passed by Supreme Court in the case of Nirmala Devi (supra) were made, while dealing with a case of offence under Section 307/328/392 read with Section 34 IPC. The nature of those offences were apparently very serious. As far as Section 138 NI Act is concerned, Supreme Court in the case of Meter and Instruments Private Limited v. Kanchan Mehta, 2017 SCC OnLine SC 1197, observed that "the object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged." In the same case, Supreme Court went on to observe that offence under Section 138 of the Act is primarily a civil wrong. Thus, observations made by Supreme Court in case of Nirmala Devi (supra) cannot be applicable to the present cases, keeping in view the vast difference in the nature of offences in that case and in the present cases.
32.In the case of Praban Kumar Mitra v. State of West Bengal, AIR 1959 SC 144, a constitution bench of Supreme Court observed that "In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its Page 26 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code."
33.In Rajaram Vs. State, 1983 CrLJ612 (MP), it was held that "Order of lower court ought not be lightly set aside unless it has entailed mis carriage of justice or where two views are possible merely because the revising court takes the other view."
34.In the present case, ld. ACMM was well aware of civil remedy availed by the complainant. The consent decree passed by High Court of Delhi was also well within knowledge of ld. ACMM. It is worth to mention here that before High Court of Delhi even complainant had agreed to receive a total sum of Rs.10.4 lac only, though he had the option to demand more amount on the grounds of due compensation. In view of these circumstances, the amount of fine imposed by ld. ACMM cannot be said to be inadequate fine. Rather, while dealing with criminal appeal of the convicts, I have already referred to this aspect to point out the compensation awarded to the complainant. It cannot be said that compensation awarded to the complainant is insufficient, especially when complainant himself did not seek more Page 27 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
compensation in the civil proceeding, which was more appropriate proceeding to seek such compensation. In fact, ld. ACMM should have taken note of all the payments made to complainant towards same liability, while imposing fine and giving direction for compensation to the complainant.
35.The sentence of imprisonment awarded to convict no.2 is not to be enhanced merely to satisfy the sense of vengeance of the complainant. Ld. ACMM has not only passed sentence of imprisonment against convict no.2, but has also passed default sentence against convict no.2 as well as convict no.3 for non payment of fine. The convict no.3 was mother of a child during trial of the case and was pregnant. During pendency of the appeals before this court, she gave birth to another child. Therefore, omission of ld. ACMM to pass any sentence of imprisonment against her, is found to be in consonance with humane touch to the sentencing. Section 138 of the Act provides for punishment of imprisonment, or fine or both. Meaning thereby, ld. ACMM had the option to pass sentence of fine only against convict no.3 and thus, there is no legal infirmity in such order.
36.In my opinion under revisional jurisdiction this court is not supposed to substitute its own view, without there being any manifest error in the discretion exercised by ld. ACMM, with the view formed by ld. ACMM. Therefore, the demand of complainant to enhance the sentence is rejected.
37.However, there is one aspect attached to orders on sentence, which were not raised by ld. counsel for complainant. Ld. ACMM though convicted convict no.1 company as well, but no sentence was passed Page 28 of 30 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
qua this company. Once, a person (natural or juristic) is convicted for an offence, the court has to pass some sentence qua that person. The impugned orders on sentence are totally silent in respect of any sentence qua convict no.1 company. It appears that ld. ACMM as well as ld. counsel for complainant overlooked this aspect. Under revisional jurisdiction, it is duty of this court to point out legal infirmity so that same may be rectified. Therefore, I do find that impugned orders on sentence are liable to be set aside for aforesaid reasons.
38.In view of my foregoing discussions, findings and observations given in criminal appeals preferred by all the convicts, impugned judgments dated 13.04.2018 in all seven complaints are upheld. However, orders on sentence dated 23.04.2018 in all seven complaints are hereby set aside and matter is remanded back to the trial court to pass fresh order on sentence in each case, keeping in view the observations made herein above.
39.To be specific, the trial court shall pass order on sentence qua convict no.1 company as well. The trial court shall also take into account the payments made to complainant regarding same liability till date, while imposing fine against the convicts. Since, this court has rejected the prayer of complainant for enhancement of punishment of convicts no.2 and 3, therefore, trial court shall ensure that sentence against them is passed without any enhancement.
40.Accordingly, all seven criminal appeals as well as all seven criminal revisions are partially allowed in respect of impugned orders on sentence. Both parties shall appear before trial court on 31.01.2019 at 02:00 PM. Since convict no.2 is reported to be in civil prison, trial court shall seek his production accordingly.
Page 29 of 30 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.53/18, 55/18, 56/18, 57/18, 58/18, 59/18 & 60/18 & Criminal Revision Nos.124/18, 125/18, 126/18, 127/18, 128/18, 129/18 & 130/18.
41.TCRs be sent back along with common judgment to the trial court. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3,
PRAMACHALA Karkardooma Courts,
Delhi
Date: 2019.01.21
18:53:12 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 21.01.2019 Special Judge (PC Act) CBI, East
(This order contains 30 pages) Karkardooma Courts, Delhi
Page 30 of 30 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi