Delhi District Court
Poonam Mishra vs Dharmender Raghav on 31 March, 2022
IN THE COURT OF MANOJ JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST DISTRICT: DWARKA COURTS: NEW
DELHI
CA No. 174/2020
CNR No. DLSW010061212020
POONAM MISHRA
Wife of Sh. Tungnath Roy,
Resident of House No. A-58, Street No. 10,
Nagli Vihar, Monday Market Road,
Najafgarh, New Delhi-110043
.............Appellant
Versus
1. DHARMENDER RAGHAV
Son of Sh. Surender Singh,
Resident of A-77, Street No. 11,
Nagli Vihar, Ghasipura, Najafgarh,
New Delhi-110043
2. STATE (NCT OF DELHI)
..........Respondents
Date of Institution : 18.09.2020
Date of conclusion of arguments : 30.03.2022
Date of Pronouncement of Decision : 31.03.2022
JUDGMENT:
1. Appellant Ms. Poonam Mishra had filed a complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as NI Act) against respondent Mr. Dharmender Raghav. The matter CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 1 of 7 was finally disposed of and vide judgment dated 25.01.2020, passed Sh. Animesh Bhaskar Mani Tripathi, learned Metropolitan Magistrate, South-West District, Dwarka Courts, New Delhi, it was held that she had successfully proved all the essential ingredients of Section 138 NI Act and accordingly, accused/respondent No.1 Mr. Dharmender Raghav was held guilty thereunder.
2. Learned trial court, after hearing arguments on sentence, directed the convict to undergo simple imprisonment of three months. He was also, simultaneously, saddled with fine of Rs. 6,50,000/- which was directed to be paid to the complainant as compensation under Section 357 Cr.P.C. Learned trial court also directed that in case convict failed to pay such fine, he would further undergo simple imprisonment for three months.
3. Feeling aggrieved by the inadequacy of the sentence, the present appeal has been filed by complainant Ms. Poonam Mishra.
4. I have heard Sh. Bhawan Singh, learned Legal Aid Counsel for appellant/complainant as well as Sh. Manjeet Chaudhary, learned counsel for respondent No.1.
5. Sh. Balwan Singh has contended that sentence is inadequate. It has been contended that a friendly loan of Rs. 5,50,000/- had been taken by the respondent in the year 2015 which remained unpaid and complainant had to knock the doors of the court to recover such amount. It has been argued that respondent kept on delaying the CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 2 of 7 inevitable before the learned trial court on one pretext or the other. Highlighting that the maximum punishment, which can be meted out to any such convict held guilty under Section 138 NI Act, can extend upto two years or fine amount upto double of the cheque amount or both, the sentence awarded to the respondent is highly inadequate. It has, therefore, been prayed that convict should be sentenced to the maximum substantive period of imprisonment and should also be directed to pay double the amount of the cheque in question.
6. I am also told by the Learned counsel for appellant that she had also filed a civil suit against the convict for the same subject matter/cheque and that she has already obtained a decree from the Court on 19.12.2019. Execution petition is, however, reportedly pending.
7. Sh. Manjeet Chaudhary, Learned counsel for respondent No.1 has, on the other hand, contended that the sentence has been awarded by the learned trial court after keeping in mind, all the facts and circumstances of the case and there is no requirement of making any alteration in the same. During course of the arguments, on the basis of query made by the Court, it was also apprised that the convict had already suffered the requisite incarceration as he has already undergone substantive imprisonment of three months and has also remained behind the bars for another period of three months in default of payment of fine. Report received from concerned Jail Superintendent also indicates that respondent No.1 CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 3 of 7 has remained in jail, in relation to impugned sentence, from 03.03.2021 to 02.09.2021 and that he was eventually released from the bail on completion of sentence, including in default sentence of period of three months.
8. Sh. Chaudhary has also submitted that respondent has no further paying capacity and in case, fine amount is increased, he would again have to go behind the bars. It is also argued that convict is victim of circumstances and the cheque had been given as security which was misused by the appellant. He, however, does not wish to reopen the merits of the case and supplements that convict has already undergone agony of trial for last more than five years and that the order on sentence was passed by the learned trial court after appreciating all the facts in the most appropriate manner. It has also been reiterated that convict is sole bread earner of the family and since he has already undergone the sentence, as awarded by learned trial court, the appeal in question deserves to be dismissed.
9. I have given my thoughtful consideration to the rival contentions. Undoubtedly, as per Section 138 NI Act, the fine amount can be upto double of the cheque amount but at the same time, the period of imprisonment and/or fine are required to be decided while keeping in mind the overall facts and circumstances of the case and taking stock of all aggravating and mitigating factors. There would be occasions when convicts can be let off with simple fine only and there would be occasions where even the CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 4 of 7 maximum dosage may seem highly insufficient. Thus, there is no straightjacket formula and court has to weigh every aspect and facet in a very judicious and balanced manner. I cannot lose sight of the fact that for the same subject matter/cheque, appellant has already obtained a money decree against the respondent and her execution petition is pending adjudication.
10. I may, however, refer to sections 421 and 431 of Cr.P.C. Section 421 (1) Cr.P.C. stipulates that when an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
11. It is also mentioned in the proviso attached to sec 421(1) Cr.P.C. that if the sentence directs that in default of payment of fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such unless, for special reasons to be recoded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. The CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 5 of 7 purpose of incorporating the aforesaid exceptions seems to be that a person shall not be able to frustrate the attempt of the law to recover the fine amount by merely opting to undergo sentence in default.
12. As per sec 431 Cr.P.C., any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. In Kumaran v. State of Kerala, (2017) 7 SCC 471, it has been held that if default sentence, in lieu of payment of compensation, is served, compensation shall still be recoverable. It is also held that even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1) supplementing that the same would, however, be without the necessity of recording any special reasons.
13. In the present case, the fine amount has been directed to be paid as compensation and, therefore, the Learned Trial Court shall take recourse to sec 421 Cr.P.C. irrespective of convict having undergone default sentence.
14. Keeping in mind the overall facts and circumstances and after careful perusal of the entire material paced before me, I, however, do not find that the sentence was insufficient or fleabite. Consequently, the appeal stands dismissed but with the observations as made in the preceding paragraph.
CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 6 of 715. A copy of this judgment be sent to learned trial court along with trial court record.
16. File pertaining to appeal be consigned to Record Room.
Digitally signedMANOJ by MANOJ JAIN Date: Announced in the open Court on this 31 day of March, 2022 JAIN st 2022.03.31 16:39:47 +0530 (MANOJ JAIN) Principal District & Sessions Judge South West District: Dwarka Courts: New Delhi CA No. 174/2020 Poonam Mishra Vs. Dharmender Raghav Page 7 of 7