Delhi District Court
Dev Prakash Gupta vs M/S. Ideal Book Point on 24 September, 2014
IN THE COURT OF SH. SANJAY BANSAL
ADDITIONAL SESSIONS JUDGE-03 (EAST)
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No.100/2014
02402R0093532014
Dev Prakash Gupta
S/o Sh. Om Prakash Gupta
Prop. of M/s. Vimal Publication
Office at: 15, Savitri Sadan-II,
Preet Vihar, main Entrance CBSE,
Delhi-110092 ......Appellant.
Vs.
1. M/s. Ideal Book Point
Through its Prop./Partner/M.D./Authorised Person
2. Sh. I. N. Singh
Both at:
Naya Tola (opps. Gopal Market);
Patna-4
Also at:
New Market, Cinema Road,
Hajipur (Vaishali), Patna
3. State ......Respondents.
Date of Institution: 18.03.2014
Judgment Reserved on: 12.09.2014
Date of Judgment: 24.09.2014
CC No. 358/01/12
U/s: 138 N. I. Act
PS: Preet Vihar
JUDGMENT:
1. The appellant in this appeal was complainant in CC No. 358/01/12. Appellant had filed that complainant case against the respondent no. 1 and 2 alleging offence u/s 138 r/w 142 of Negotiable Instruments Act, 1881 ('NI Act'). The case set up by the appellant was that respondent no.2 had purchased goods from time to time amounting to Rs.1,03,032/- from him for which three invoices were also prepared. Books of accounts were maintained by the complainant. As per the said accounts, Rs.98,032/- were payable by respondent no.1 and 2 as on Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 1 of 8 21.12.2011. It was alleged that respondent no.2 had issued a cheque bearing no. 940616 dt. 19.12.2011 for Rs.98,032/- drawn on ICICI Bank Ltd. Patna Branch in discharge of the said liability. This cheque was dishonored on presentation for the reason "insufficient funds" vide memo dt. 20.12.2011. Legal notice dt. 09.01.2012 was sent to the respondents but even after receipt of legal notice, no payment was made. Hence, appellant filed the complaint case.
2. Respondents were summoned as accused. Respondent took up the defence that goods were ordered but were actually not delivered to them. Regarding the cheque, it was stated that a blank signed cheque was given as security only.
3. Learned MM, after analysing the record, passed judgment dt. 13.02.2014 whereby she convicted the respondent no.2 for the offence punishable u/s 138 NI Act. Vide order on sentence dt. 15.02.2014, learned MM sentenced respondent no.2 to SI for 2 months and further directed to him to pay compensation of Rs.15,000/- to the appellant/complainant. In case of default of payment of compensation, respondent no.2 was directed to suffer further SI for 25 days.
4. It is against this order on sentence that the appellant has filed this appeal. The appellant feels aggrieved of awarding insufficient amount of compensation and hence seeks enhancement of sentence/compensation.
5. I have heard Sh. Tarun Aggarwal, learned counsel for appellant and Sh. K. S. Goswami, learned counsel for respondent no.1 and 2. Respondent no.3 is the State which is a proforma party. I have perused the record including that of trial court.
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6. Learned counsel for the respondents, at the outset, objected to maintainability of this appeal. He argued that this appeal is not maintainable as Sec. 372 of Criminal Procedure Code, 1973 ('CrPC') does not give right to a victim to file appeal for enhancement of sentence. Alternatively, he further submitted that a victim can seek enhancement of compensation, but even in that case, the appeal does not lie due to bar of Sec. 376 CrPC. He argued that only State Govt. can file appeal for enhancement of sentence.
7. Per contra, learned counsel for appellant submitted that appeal is very much maintainable u/s 372 CrPC. Alternatively, he submitted that if appeal is held to be not maintainable, the same may be treated as a revision petition.
8. Sec.372 CrPC provides as under:
" 372. No appeal to lie, unless otherwise provided - No appeal shall lie from any judgment or order of a Criminal Court except as provided or by this Code or any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."
9. It can be seen that the proviso to Sec. 372 CrPC grants right to a victim to prefer an appeal against (a) acquittal, (b) against conviction for a lesser offence, and (c) against imposing inadequate compensation. The case of appellant herein does not fall in category (a) or (b). At the best, appellant can resort to category (c).
10. The proviso further provides that such an appeal shall lie to the Court to which an appeal ordinarily lies against order of conviction. Sec. 374 CrPC provides the forums where the appeals against convictions shall lie. As judgment of conviction in this case was passed by learned MM, ordinarily appeal Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 3 of 8 will lie to this court.
11. However, Sec. 376 CrPC restricts the right of appeal against conviction in certain cases. The relevant provisions of Sec. 376 CrPC are as follows:
"376. No appeal in petty cases - Notwithstanding anything contained in section 374, there shall be no appeal by a convicted person in any of the following cases, namely:
-
(a) x x x x;
(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine ;
(c) where a Magistrate of the first class passes only a sentence of fine not
exceeding one hundred rupees; or
(d) x x x x......"
12. The sentence imposed on the respondent no.2 has already been noted above. Keeping in view Sec. 376 (b) CrPC, there is no doubt that respondent no.2/convict could not have filed an appeal against his conviction. On this analogy, learned counsel for the respondents sought to convey that the present appeal by the victim would also be similarly barred.
13. In my view, this contention is misconceived. The proviso to Sec.372 CrPC has been added by way amendment w.e.f. 31.12.2009. The proviso in essence extends right to file appeal to victims also. Earlier, right to file appeal in case of acquittal was exercisable by State Govt. in those cases which were instituted upon police reports; or by a complainant in those cases which were instituted upon complaint of a private complainant. The right to file appeal in case of conviction was available to convict only. And right to file appeal against sentence on ground of its inadequacy was available only to State Govt. Earlier, Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 4 of 8 the victim of the offence had no right to file any appeal. This in some situations was causing injustice in the way that sometimes the State Govt. did not file any appeal against acquittal. As the victim did not come within the four corners of the term 'complainant', he was handicapped to take any proceedings against acquittal of accused or insufficiency of sentence or compensation. To remedy this injustice, the abovenoted proviso was added to Sec. 372 CrPC.
14. If the interpretation suggested by learned counsel for the respondents is accepted, that will destroy the very purpose for which the proviso was added. That will be a very narrow interpretation. In my view, the restrictions contained in Sec. 376 CrPC do not apply to an appeal filed by a victim. The reason is not too far to seek. There are, and there will be, numerous cases in which a lenient sentence is imposed on a convict in lieu of grant of compensation to a victim. If the victim feels dissatisfied with the amount of compensation, he can file an appeal for enhancement of compensation. If restrictions contained in Sec. 376 CrPC are applied to such an appeal, the victim will be unable to seek enhancement of compensation. The victim will be left at the mercy of the State Govt. as the only option available would be to file an appeal for enhancement of sentence u/s 377 CrPC which can only be filed by the State Govt. This could never be the intention of legislature when it added this proviso to Sec. 372 CrPC.
15. Therefore, I am of the view that victim can file an appeal for enhancement of compensation even in those cases where right to appeal against conviction has been curtailed by sec. 376 CrPC.
16. Learned counsel for the respondent further submitted that 'complainant' cannot be called 'victim' and for this reason also appeal is not Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 5 of 8 maintainable. This contention is also meritless. The word 'victim' has been defined in Sec. 2(wa) of CrPC which reads as under:
"(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;"
17. From the definition, it is more than apparent that even a complainant in a case for an offence u/s 138 NI Act can be considered as a victim.
18. On merits, learned counsel for the appellant submitted that learned MM committed a mistake in passing the sentence order. He argued that learned MM laid undue emphasis on the fact that appellant had obtained a decree of Rs. 98,320/- alongwith interest in a civil suit filed by him against respondent no.2. Learned counsel for the appellant pointed out that no money had been paid by the judgment debtor/respondent no.2 under the decree and thus, learned MM erred in ordering a meager amount of compensation of Rs.15,000/- though the cheque was of Rs. 98,032/-. He urged that the amount of compensation be enhanced.
19. Countering these submissions, learned counsel for the respondents submitted that even Rs.15,000/- were illegally awarded as compensation by learned MM. He referred to Sec. 357 of CrPC and submitted that as no fine was imposed by learned MM, no compensation could have been awarded to the appellant. Learned counsel relied upon 2013 (4) CCC 731 (SC) title Somnath Sarkar Vs. Utpal Basu Mallick & Anr.
20. In my considered opinion, even this contention of learned counsel for the respondents is untenable. Probably, learned counsel did not read Sec. 357 Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 6 of 8 (3) CrPC. The same reads as under:
When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused persons to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
21. A reading of the abovesaid provision makes the picture clear. Even in cases where the court imposes a sentence of which fine does not form a part, still court may grant compensation. The case of Somnath Sarkar (supra) is not of any help since in that case compensation was ordered in addition to imposition of fine and in that scenario, Hon'ble Apex Court observed that compensation could be awarded out of fine only.
22. Now the question to be considered is as to whether appellant deserves higher compensation than what was granted by learned MM or not?
23. Before this question is answered, it may be noted herein that learned counsel for the respondents also had addressed arguments seeking acquittal of the respondents. Learned counsel had submitted that such a right has been granted to the respondents since in an appeal for enhancement of sentence, appellate court can reverse the finding and acquit the accused. It may also be mentioned here that the respondents had also filed an appeal against conviction being Crl. Appeal No. 94/14. But as the sentence was only of SI for two months, in view of Sec. 376 CrPC, the said appeal was not maintainable and it was treated as a revision petition on request of the convict. Now it was renumbered as Crl. Revision No. 91/14. That revision petition was also heard alongwith this appeal. And vide my separate order passed today, the said criminal revision petition has been dismissed. Thus, it is now clear that the Crl. Appeal No. 100/14 Dev Prakash Gupta Vs. M/s. Ideal Book Point & Ors. Page No. 7 of 8 respondents were properly convicted.
24. As far as sentence part is concerned, in my view, learned MM did not consider the facts in correct perspective. Learned MM was unduly swayed by the fact that appellant had obtained a decree against the accused. She did not notice that appellant had merely obtained a decree which was yet to be executed. The accused/respondents 1 and 2 had not made any payment under the decree. Existence of decree was not such a circumstance which should have been considered for granting a meagre amount of compensation. The cheque amount was Rs. 98,032/-. As such awarding compensation of Rs. 15,000/- actually amounted to injustice to appellant. Learned MM thus erred in awarding lesser amount of compensation. The money was due to appellant since 2011.
25. Therefore, sentence order is modified and it is directed that respondents no. 1 and 2 shall pay compensation of Rs. 1,50,000/- to the appellant failing which respondent no.2 shall undergo SI for 25 days as already ordered by learned MM. The other part of sentence shall remain the same.
26. In view of the above, the appeal is disposed of as partly allowed.
27. A copy of this judgment be placed in the TCR and it be sent back immediately to Ld. MM with directions to procure presence of respondent no.2 and send him to jail to serve the sentence.
28. Appeal file be consigned to record room.
Announced in the open court on 24.09.2014.
(Sanjay Bansal) ASJ-03/East District, Karkardooma Courts, Delhi.
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