Delhi High Court
Vinod Sharma vs State & Another on 30 July, 2010
Author: V.K. Shali
Bench: V.K. Shali
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Rev.P. Nos.336/08
Date of Decision : 30.07.2010
Shailender Saxena ......Petitioner
Through: Mr. A.P. Srivastava, Proxy
Counsel
Versus
State & Another ...... Respondents
Through: Nemo
AND
Crl.Rev.P. No. 388/08
Vinod Sharma ......Petitioner
Through: Mr. A.P. Srivastava, Proxy
Counsel
Versus
State & Another ...... Respondents
Through: Nemo
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
1. There are two Criminal Revision Petition under Section 397
read with 401 of the Code of Criminal Procedure against
judgment dated 11th March, 2008 passed by the Additional
Sessions Judge, Karkardooma Courts, Delhi in Crl. Appeal
No.33/2007 The Criminal Revision bearing No. 336/2008
has been filed by the accused challenging the judgment
dated 11.03.2008 passed by ASJ, Patiala House Courts and
Crl.Rev.P. Nos.336/08 & 388/08 Page 1 of 9
the judgment of conviction dated 17th August, 2004 and the
order of sentence dated 23rd August, 2004 passed by the
learned Trial Court in a case bearing No.1596/2003
convicting the petitioner for an offence under Section 138 of
Negotiable Instruments Act and sentencing him for a period
of one year simple imprisonment with a fine of Rs.20.00
lakhs. In default of payment of fine, simple imprisonment
for one year was imposed. The learned ASJ had converted
the fine amount of Rs. 20 lacs into a compensation amount
of Rs.8 lacs to be recovered from the petitioner by resorting
to Section 421 Cr.P.C. So far as second Revision bearing
No. 388/2008 is concerned that has been filed by the
complainant for enhancement of the compensation amount
of Rs. 8 lacs.
2. Briefly stated, that facts of the case are that the
respondent no. 2 was known to the present
petitioner/accused since their fathers were friends. It was
stated in the complaint that the petitioner was a proprietor
of M/s Shail Steel Company located at Rishikesh and he
asked the respondent No.2 for a loan for a short period.
The said loan was allegedly given by way of three drafts for
a sum of Rs.1.00 lakh each and a cheque for Rs.40,000/-
and Rs.6.00 lakh. In all, a sum of Rs.9.40 lakh is alleged
to have given by the respondent No.2 to the present
petitioner. The petitioner in order to discharge the liability
of said loan had issued a cheque No.938538 dated 16th
Crl.Rev.P. Nos.336/08 & 388/08 Page 2 of 9
June, 1998 for a sum of Rs.12,91,213/- drawn on Oriental
bank of Commerce, Rishikesh Branch in favour of the
respondent No.2. It is alleged that the said amount was
actually inclusive of the interest on the principal amount of
Rs.9.40 lakh and was paid to the respondent no.2 towards
the full and final settlement of his entire liability. It is this
cheque which was dishonoured. After a prolonged trial, the
learned Trial Court passed a judgment finding the
petitioner guilty of the offence under Section 138 Negotiable
Instruments Act and then sentenced him to one year of
simple imprisonment apart from fine of Rs.20.00 lakh. The
judgment was passed on 17th August, 2004 and the order of
sentence on 23rd August, 2004.
3. Petitioner feeling aggrieved by his conviction and the
sentence chose to file a criminal appeal bearing
No.33/2007 against the order of the learned Magistrate. In
the appeal, all the pleas, factual as well as legal, pertaining
to vitiating the trial on account of non-service of notice,
presumption and various other points were taken. The
learned Appellate Court passed a detailed order rejecting all
the contentions, both factual as well as legal, urged by the
petitioner and upheld his conviction, however as the
petitioner during the pendency of his appeal had actually
paid the principal amount, the learned Appellate Judge
taking into consideration this as a mitigating factor reduced
the payment of fine from Rs.20.00 lakh to Rs.8.00 lakh
Crl.Rev.P. Nos.336/08 & 388/08 Page 3 of 9
converted the same into compensation. It is further
observed that since the principal amount had been paid,
therefore the custodial sentence would not serve any
purpose and therefore, the additional amount of Rs.8.00
lakh by way of fine be recovered by resorting to recovery
process as envisaged under Section 421 of the Code of
Criminal Procedure. With this modification of sentence, the
conviction of the petitioner was upheld.
4. Petitioner still feeling aggrieved has chosen to file the
present revision petition both against the Appellate Court's
order dated 11th March, 2008 as well as against the
judgment and order dated 17th August, 2004 and 23rd
August, 2004 respectively passed by the learned Trial
Magistrate. The arguments in this case were heard in
stages as repeatedly the learned counsel for the petitioner
for one reason or the other sought adjournment and
consequently written submissions were obtained from the
respondent No.2 while as petitioner chose not to file written
submissions but his synopsis which has been annexed to
the petition has been treated as the written submissions. I
have gone through the written submissions of both the
parties and perused the record.
5. At the outset, it must be pointed out that the filing of the
present revision petition against the order dated 11th
March, 2008 is an attempt by the petitioner to raise all
those pleas which are factual as if he has a right of second
Crl.Rev.P. Nos.336/08 & 388/08 Page 4 of 9
appeal against the judgment of both the Appellate Court
and the Trial Court. It may be pertinent here to refer to
Section 397 (3) of the Code of Criminal Procedure which
clearly lays down that there is a prohibition of preferring
two revision petitions meaning thereby as the power of
revision is a concurrent power both with the Sessions
Court and the High Court, the Legislature has rightly
restricted the right to file a revision only in one forum so as
to avoid the repetitive and multiplicity of litigation against
an impugned order. While dealing with the aforesaid
provision of Section 397(3) and the powers of revision of the
High Court, there are catena of authorities which lay down
that if a party has preferred an appeal and still feels
aggrieved, then the revision cannot be filed by him so as to
invite the High Court to go into the question of merit or
question of fact meaning thereby that the High Court in
exercise of its revisional powers will interfere with the
finding of the Trial Court and the first Appellate Court
which will amount to re-examination of the entire evidence
so as to upset the concurrent finding of the Trial Court and
the first Appellate Court. A reliance in this regard can be
placed on only one of the number of authorities which is
titled State of Maharashtra Vs. Jagmohan Singh
Kuldeep Singh Anand & Ors 2004 (7) SCC 659.
6. In the light of this parameter which has been set by the
Apex Court on the exercise of powers of revision by the
Crl.Rev.P. Nos.336/08 & 388/08 Page 5 of 9
High Court, I feel all points which have been raised in the
petition of petitioner with regard to the vitiating of the trial
on account of non-service of notice, procedure for
investigation not properly being followed or the
complainant/respondent No.2 having violated Section 3(b)
(ii) of the Punjab Registration of Money Lenders Act, 1938
are not at all relevant at the stage of revision. These are all
factual points which are urged or ought to have been urged
before the learned Trial Court or at best before the first
Appellate Court. The learned counsel for the petitioner has
failed to show that there is any jurisdictional error or lack
of exercise of jurisdiction or exercise of excess jurisdiction
or material irregularity of the decision of the learned
Appellate Court. On the contrary, the very fact that the
finding of the Trial Court has not only been confirmed by
the Appellate Court but also the fact that the petitioner has
actually paid the amount of Rs.12.00 lakh being the
principal amount to the respondent No.2 is in fact
admission of his guilt that he had committed an offence
and this forecloses the right of the petitioner to raise all
these factual points now in the present petition. A perusal
of the operative portion of the learned Sessions Court's
order shows that a very lenient view has been taken and it
has reduced the amount of fine from Rs.20.00 lakh to
compensation of Rs.8.00 lakh and dispensed with the
custodial sentence in default of payment of the same which
Crl.Rev.P. Nos.336/08 & 388/08 Page 6 of 9
is sufficient enough to have made the present petitioner
satisfied the operative portion of the learned Sessions
Judge's order is quoted as under :
"Appellant submits that during pendency of this
appeal, he has made payment of cheque amount
to the complainant. He further presents that his
house has been sold, when money was arranged
to make payment of the cheque amount. He
projects that he has suffered agony of trial for a
period of 10 years. According to him, all these
mitigating factors may be taken into account,
while awarding sentence to him. Admittedly,
appellant has made payment of the cheque
amount during pendency of this appeal. It was
impressed upon the appellant as well as to
complainant to withdraw litigations pending
between them, so that they may revive their
relations. Efforts made by the Court proved
futile. However, mitigating circumstances,
referred above, persuade me to think that it is
not a fit case, where custodial sentence should
be awarded to the appellant. Since he has
utilized the cheque amount for a period of ten
years, his pocket should be taxed to make a
balance between factors of crime and
circumstances surrounding the appellant.
Taking into account all these situations, it is
ordered that appellant shall make payment of
Rs.8,00,000/- as compensation to the
complainant, besides the cheque amount already
paid. In case amount of compensation is not
paid, it would be recovered by the Trial Court in
view of provisions of Section 421 of the Code.
With this modification of sentence, appeal stands
disposed of. Trial Court record be sent back."
7. In the light of the fact that the learned Sessions Judge has
already given a considerable relief to the petitioner by
reducing the fine amount from Rs.20.00 lakh to Rs.8.00
lakh, one cannot lose sight of the fact that the present
petitioner had paid this amount of Rs.12.00 lakhs to the
complainant/respondent No.2 almost after enjoying the
said amount for a decade and even if the rate of interest is
Crl.Rev.P. Nos.336/08 & 388/08 Page 7 of 9
taken to be 6% on the principal amount would have
doubled. Therefore, in the light of this, to give any further
relief to the present petitioner by reducing the amount of
compensation from Rs.8.00 lakh to any lesser amount
would be only showing a misplaced sympathy to the
present petitioner. This is more so in the light of the fact
that there are lakhs of cases which are pending under
Section 138 of the Negotiable Instruments Act in different
forums of Delhi and it is in a very minuscule percentage
that the conviction is recorded. Therefore, even such cases
where an order of conviction is obtained by a party after a
considerable length of time to show a sympathy to the
convict, would be only showing a misplaced sympathy
which will not be proper.
8. In the light of the aforesaid facts, I feel that there is no
jurisdictional error or material irregularity which may
warrant interference by this Court. Accordingly, the
revision petition bearing Crl.Rev. P.No.336/2008 is
dismissed and the order of conviction and sentence
imposed by the learned Magistrate has been upheld, I find
no justification for allowing the Crl.Rev.P. No.388/2008
and thereby set aside the judgment dated 11th March, 2008
passed by the learned ADJ so far as the payment of
compensation amount is concerned. Normally, payment of
compensation is a matter of discretion and once that
discretion has been judicially exercised by the forum on
Crl.Rev.P. Nos.336/08 & 388/08 Page 8 of 9
which it has been conferred, unless and until a material
irregularity or gross illegality is shown, the said discretion
should not be tampered with by the superior court merely
because it feels or comes to a different conclusion keeping
in view the facts and circumstances. Accordingly, the
Crl.Rev.P. No.388/2008 is disallowed.
V.K. SHALI, J.
July 30, 2010 skw Crl.Rev.P. Nos.336/08 & 388/08 Page 9 of 9