Delhi District Court
Asad Raza vs U.S. Handicrafts on 25 August, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CNR No. DLET01-002716-2021
CR No.39/2021
In the matter of
Asad Raza
S/o Mohd. Raza
R/o H.No. 6, Second Floor,
Gali no. 5, West Laxmi Nagar Market,
Delhi-110051
............... Revisionist
Vs.
1. U.S. Handicrafts
Through its Proprietor & Authorized Signatory,
At 1817, Gali No. 9, Govind Puri Extension, New Delhi.
2. Mohd. Umar
S/o Sh. Syed
Proprietor & Authorized Signatory
At 1817, Gali no. 9, Govind Puri, Kalkaji, New Delhi.
Also at:-
Village Bhaisa, Tehsil Mawana,
District Meerut, UP.
................. Respondents
Date of institution : 31.03.2021
Final arguments : 25.08.2022
Date of order : 25.08.2022
CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 1 of 7
ORDER
1. The respondent Mohd. Umar, Proprietor of M/s U.S. Handicrafts was convicted by the Ld. Trial Court for the offence under section 138 of the Negotiable Instruments Act, 1881 (NI Act) on a complaint filed by the petitioner / original complainant Asad Raza. By subsequent order on sentence dated 08.02.2021, the respondent was sentenced to undergo simple imprisonment for a term of two months and directed to pay compensation of Rs. 1,50,00,000/- (rupees One crore and fifty lakhs) to the complainant. In default of payment of compensation, the respondent was directed to undergo simple imprisonment for a period of one month.
2. This revision petition has been filed by the complainant challenging the order dated 08.02.2021 of the Ld. Trial Court by which the respondent was sentenced on the ground of inadequacy.
3. Before proceeding further, I may note that this revision petition was filed by the complainant on 30.03.2021. Notice was issued on the revision petition to the respondent by order dated 05.04.2021 to the addresses mentioned in the revision petition. As the notices came back unserved, by order dated 16.03.2022 notice was issued to the person who stood surety for the respondent before the Ld. Trial Court for 21.04.2022. On 21.04.2022, the respondent Mohd. Umar appeared before this Court along with his Ld. Counsel Sh. V.K. Singh. That day the Court was informed by Sh. V.K. Singh, Ld. Counsel that the respondent Mohd. Umar had not filed any appeal against the judgment dated 23.12.2020 of the Ld. Trial Court by which he was convicted for the offence under section 138 of the NI Act. It was further disclosed that although the respondent was sentenced by the impugned CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 2 of 7 order dated 08.02.2021 and was also granted bail by the Ld. Trial Court under section 389 (3) of the Cr.P.C. for a period of 30 days to enable him to file an appeal, no appeal was filed by the respondent Mohd. Umar. Further, despite not filing any appeal, the respondent Mohd. Umar did not surrender before the Ld. Trial Court to serve his sentence which was imposed upon him by the impugned order dated 08.02.2021. This Court therefore by order dated 21.04.2022 took the respondent Mohd. Umar in custody with direction to produce him before the Ld. Trial Court. As per the Ld. Trial Court record, the respondent Mohd. Umar was remanded to judicial custody by the Ld. Trial Court in execution of the order on sentence dated 08.02.2021.
4. Now coming back to the present revision petition, Sh. Jitender Bakshi, Ld. Counsel for the petitioner has argued that the cheque amount in the present matter was Rs. 90,80,000/- (one cheque for Rs. 62,00,000/- and another for Rs. 28,80,000/-). He submitted that the Ld. Trial Court convicted the respondent for the offence under section 138 of the NI Act by judgment dated 23.12.2020 holding that the respondent was unable to rebut the presumptions arising against him under section 139 of the NI Act. He submitted that although the cheque amount was Rs. 90,80,000/- the Ld. Trial Court by the impugned order dated 08.02.2021 imposed a rather lenient sentence upon the respondent. He submitted that although compensation awarded to the complainant was Rs.1,50,00,000/-, the substantive sentence imposed was imprisonment only for a period of two months. Further, the sentence in default of payment of compensation was only one month. He submitted that the cheques in question were of the year 2013, the complaint was filed in June, 2013, the complaint was decided on 23.12.2020 and sentence was imposed on 08.02.2021. He submitted that no amount of compensation as awarded by the Ld. Trial Court has been paid by the respondent to the complainant. He submitted that CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 3 of 7 the complainant even after securing conviction of the respondent did not gain anything as no amount, much less the cheque amount, was received by him after conclusion of the proceedings. He therefore submitted that the substantive jail sentence imposed upon the respondent be enhanced.
5. On the other hand, Sh. V.K. Singh, Ld. Counsel for the respondent has submitted that the respondent had a good case on merits but was unable to file any appeal against the judgment dated 23.12.2020 by which he was convicted and the order on sentence 08.02.2021. He submitted that at that time the country was facing severe crisis on account of lockdown imposed due to the prevalence of the pandemic of Covid -19. He submitted that respondent is a poor person and on account of lack of resources and also restrictions imposed due to lockdown went back to his village after the conclusion of the trial. He submitted that as and when the respondent became aware of the revision petition, he appeared before this Court. He was taken into custody and remanded to judicial custody to serve his sentence imposed upon him by order dated 08.02.2021 including default sentence upon not depositing or paying the compensation amount. He submitted that now the respondent has served his substantive sentence of two months of simple imprisonment and one month default sentence. This Court may not enhance the sentence imposed upon the respondent.
6. I have heard the Ld. Counsels for the parties and have perused the record of the Ld. Trial Court. This is a revision petition filed under sections 397/401 of the Cr.P.C. challenging the order on sentence dated 08.02.2021 on the ground of its inadequacy. Sections 397 of the Cr.P.C. empowers the Sessions Court to call for and examine the record of any proceedings before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any fine, sentence or order recorded or passed. Thus, this Court under section CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 4 of 7 397 (1) of the Cr.P.C. has the jurisdiction to consider a challenge to an order of sentence in revisional jurisdiction.
7. The facts are not in dispute. The respondent was convicted for the offence under section 138 of the NI Act on account of dishonor of two cheques given by him to the petitioner, aggregate value of which was Rs. 90,80,000/-. The amount as such is not small. Substantive sentence imposed upon the respondent is simple imprisonment for a term of two months. While imposing sentence, the Ld. Trial Court had taken note of the submission made on behalf of the respondent that the was only bread earner of his family and had responsibility of six children. The Ld. Trial Court has directed the respondent to pay Rs. 1,50,00,000/- to the petitioner towards compensation and directed that the respondent would undergo simple imprisonment for a period of one month in default of payment of compensation.
8. Admittedly, the respondent has not paid any compensation to the petitioner. No appeal has been preferred by the respondent against the orders of conviction and sentence.
9. In the case of Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the Hon'ble Supreme Court was considering a challenge by the original complainant to the sentence awarded to the respondent for the offence under section 138 of the NI Act. In that case, the cheque amount was Rs. 4,50,000/- and sentence imposed upon the convict was imprisonment till rising of the Court and fine of Rs. 5,000/-. The Hon'ble Supreme Court was pleased to set aside the order on sentence with the observations that where the amount covered by the cheque remained unpaid, sentence for the offence under section 138 of the NI Act should of such a nature so as to give proper effect to the object of the legislation. It was held that no drawer of a cheque can be allowed to take dishonour of a cheque CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 5 of 7 issued by him light heartedly. It was held that sentence of such nature defeats the object of section 138 of the NI Act. It was also observed that it would be a different matter if the convict had paid the amount atleast during the pendency of the case. The judgment of the Hon'ble Supreme Court in the case of Suganthi Suresh Kumar v. Jagdeeshan (supra) was also followed by the Hon'ble Supreme Court in the case of H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368.
10. This extract is taken from Bir Singh v. Mukesh Kumar, reported in (2019) 4 SCC 197 the Hon'ble Supreme Court was pleased to observe that the object of Section 138 of the Negotiable Instruments Act is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same.
11. Keeping in view the object of the legislation as explained by the Hon'ble Supreme Court in the case of Bir Singh Vs Mukesh Kumar (supra), the observations of the Hon'ble Supreme Court regarding imposition of adequate sentence for such offences in the cases of Suganthi Suresh Kumar v. Jagdeeshan and H. Pukhraj v. D. Parasmal (supra) as well as the fact that the cheque amount in the present case is Rs. 90,80,000/-, the sentence imposed by the Ld. Trial Court including the default sentence on account of failure to make payment of the compensation amount, in the opinion of this Court, is inadequate. The impugned order dated 08.02.2021 on sentence is therefore set aside and the following sentence is imposed upon the respondent:-
CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 6 of 7(i) For the offence under section 138 of the NI Act, the respondent is sentenced to undergo simple imprisonment for a term of one year;
(ii) The respondent is directed to pay compensation of Rs. 1,50,00,000/-
to the petitioner / complainant within 30 days from today failing which the respondent shall undergo further simple imprisonment for a period of six months.
12. The revision petition is allowed in the above terms.
Digitally signed by REETESH SINGHREETESH SINGH Location:
Karkardooma Court (Reetesh Singh)
Date: 2022.08.25
16:09:28 +0530 ASJ-2/KKD/East/25.08.2022
Announced in open
court on 25.08.2022
CR No. 39/2021 Asad Raza Vs U.S. Handicrafts & Ors. Page 7 of 7