Delhi District Court
Deepak Nagar vs Sanjay Kumar on 18 July, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI. CR No. 51/2022 U/s: 138 of NI Act PS Karawal Nagar Deepak Nagar S/o Late Sh. Karamveer Nagar R/o Village Sadat Nagar, Ikla, Distt. Ghaziabad, UP. ...Revisionist Versus 1. Sanjay Kumar S/o Sh. Narayan Singh R/o C-131, Chaman Vihar, Loni, Distt. Ghaziabad, Uttar Pradesh Presently at : In Central Jail Tihar / Mandoli, New Delhi. 2.The State Govt. of NCT of Delhi ...Respondents Date of assignment : 23.03.2022 Date of Arguments : 16.07.2022 Date of Pronouncement : 18.07.2022 CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 1/12 JUDGMENT:
1. Vide this judgment I shall disposed off a Revision Petition preferred by the Revisionist / Complainant against impugned order of sentence dated 10/09/2020 passed by Ld. the then CMM/NE.
2. Arguments heard.
3. Ld. Counsel for the Revisionist has argued that the Ld. Trial Court has convicted the Respondent No. 1 / accused vide judgment dated 13/08/2020 and sentenced him by impugned order for TRC (Till rising of the court) and to pay fine of Rs. 11,00,000/- payable to the Complainant within a period of 30 Days, in default of such payment, convict shall suffer further simple imprisonment for 6 months. A sum of Rs. 50,000/- is also awarded to the complainant as litigation charges in terms of section 359 CrPC to be paid by the convict within 30 days and in default he shall further suffer simple imprisonment for fifteen days. It is clarified that fine amount will be released to the complainant only after expiration of limitation period for filing of appeal by the convict.
4. Ld. Counsel for the Revisionist has argued that the order on sentence passed by Ld. Trial court is bearing illegality and infirmity as Section 138 of NI Act prescribes a punishment of 2 years and fine of double of cheque amount, which may be awarded as compensation to the complainant, but Ld. Trial Court has sentenced the Respondent No. 1 / accused only for TRC which cannot be considered an adequate punishment in any manner. It is further argued that even the compensation of just Rs. 11 Lacs against the cheque amount of Rs. 10 Lacs and that too CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 2/12 without any interest was also definitely inadequate in every aspect. It is further submitted that the punishment awarded by the Ld. Trial Court is in violation of the law laid down by Hon'ble Supreme Court in case titled Suganthi Suresh Kumar v. Jagdeeshan, 2002 CrLJ 1003.
5. Ld. Counsel for the Revisionist has further argued that the Ld. Trial Court has not considered the law laid down by the Hon'ble Supreme Court in case titled R. Vijayan v. Baby, 2012 AIR SCW 438, as per which, an interest @ 9% P.A. ought to be awarded against compensation due to this sentence order is also liable to be modified. It is further argued that the Revisionist has suffered a mental agony of trial for about 7 years but has got nothing as Respondent No. 1 has also failed to comply with the sentence order of payment of compensation despite having his financial capacity and has preferred to serve default sentence for payment of compensation, which suggests that he has no regards of law. It is argued that sentence order passed by Ld. Trial Court is liable to be modified and more stringent punishment is required to be passed against the accused / Respondent No. 1 and sentence order awarded to the respondent No. 1 be enhanced in terms of section 138 of NI Act and this revision petition may be allowed.
6. On the other hand, Ld. Counsel for the Respondent No. 1/ accused has argued that the Revisionist No. 1 had a weak case on merit and even failed to prove that Respondent No. 1 owed his amount of Rs.10 Lacs for which he allegedly issued cheque in dispute, but still Ld. Trial Court convicted him. It is further submitted that section 138 of NI Act does not prescribe that sentence of 2 years should be awarded mandatorily and discretion is vested with the trial court as to what punishment should be CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 3/12 awarded to an accused after his conviction, which may be upto 2 years, as no minimum punishment has been prescribed by the section 138 of NI Act. It is further argued that the punishment of TRC was sufficient in view of the facts of this case, which cannot be faulted and does not require any interference or enhancement by this court. It is further argued that Complainant had misused the cheque in question and thereafter, he filed a false Criminal Complaint against the Respondent No. 1 and complaint with such facts was definitely liable to be dismissed, but Respondent No. 1 is a poor man and could not challenge his conviction, due to this Revision Petition is liable to be dismissed.
7. Ld. Addl. PP for State has argued that though this case pertains to a private complaint, yet the judgment as well as sentence order passed by the Ld. Trial Court bears no illegality or infirmity and this Revision Petition is liable to be dismissed.
8. I have heard the arguments and perused the record. Admittedly, Respondent No. 1 has been convicted u/s 138 of NI Act, but has not challenged his conviction and has accepted it. If accused /Respondent No.1 has not challenged his conviction, then merit of conviction of a judgment cannot be considered in a Revision Petition preferred by opposite party. As such, this Revision Petition has to be confined only on the legality of sentence order announced against the Revisionist. Respondent No.1 has been convicted u/s 138 of NI Act and this section prescribes a severe punishment than awarded. Section 138 of NI Act is as under:
Section - 138 Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 4/12 any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. -- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Perusal of the above said section made it clear that any convict u/s 138 NI Act may be punished for 2 years imprisonment and double of the fine amount of the cheque amount in dispute. However, Ld. Trial Court has awarded just a sentence of TRC (Till rising of the Court) and fine of Rs. 11 Lacs, which has been directed to be released to the complainant as compensation against the cheque amount of Rs. 10 Lacs, in default, 6 months SI, with Rs. 50,000/- litigation charges, in default, 15 days SI.
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9. Before appreciating this sentence awarded to the Respondent no.1, it is necessary to go through the law proposition regarding adequacy of sentence. The Hon'ble Supreme Court has considered the necessity of inflicting adequate punishment upon an accused after his conviction in case titled Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420:
2002 CrLJ 1003 and relevant observation is as under:
12.The total amount covered by the cheques involved in the present two cases was Rs 4,50,000. There is no case for the respondent no.2 that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the revisionist there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the respondent no.2 paid the amount at least during the pendency of the case.
10. Similarly, in case titled H. Pukhraj v. D. Parasmal, (2015) 17 SCC 368, it is held that punishment awarded to the accused under section 138 of NI Act must be adequate and relevant observation is as under:
9. In the light of the above judgments, we are of the opinion that the impugned order needs to be modified. Hence, we sentence the respondent-respondent no.2 to undergo simple imprisonment for a period of six months for the offence under Section 138 of the NI Act. Considering the fact that the cheque amount is Rs 6,19,488 (Rupees six lakhs nineteen thousand four hundred eighty-eight only), we direct the respondent-respondent no.2 to pay compensation of Rs 10,00,000 (Rupees ten lakhs only) to the CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 6/12 appellant. In default of payment of compensation, the respondent-respondent no.2 will have to undergo simple imprisonment for a period of six months.
In view of the abovesaid case law, it stands proved that the sentence likely to be awarded to any accused must be adequate and in consonance of crime committed by him.
11. Admittedly, the compensation likely to be awarded to a victim also must be adequate and in consonance of loss suffered by him. The quantum of compensation must be determined by taking into account of the factors like nature of crime, justness of claim of the victim and ability of the accused to pay such compensation. The observation of the Hon'ble Apex Court in case titled Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551 is relevant as under:
10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but courts have seldom invoked it.
Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the respondent no.2to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.
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11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of respondent no.2 to pay. If there are more than one respondent no.2 they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default.
In view of the above said case law, it stands proved that adequate compensation must be awarded to the complainant under section 138 of NI Act r/w Section 357 of CrPC.
12. Even the Ld. Trial Court must consider the aspect of awarding interest against the amount of cheque in dispute and if period of limitation for filing civil claim against the dishonoured cheque has lapsed, then interest against compensation / cheque amount has to be awarded in terms of section 80 of NI Act. Even the guidelines laid down by the Hon'ble Apex Court in case titled R. Vijayan v. Baby, (2012) 1 SCC 260 have to be followed. The relevant observation of the case is as under:
18. Having reached that stage, if some Magistrates go by the traditional view that the criminal proceedings are for imposing punishment on the accused, either imprisonment or fine or both, and there is no need to compensate the complainant, particularly if the revisionist is not a "victim" in the real sense, but is a well-to-do financier or financing institution, difficulties and complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 8/12 exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice.
19. We are conscious of the fact that proceedings under Section 138 of the Act cannot be treated as civil suits for recovery of the cheque amount with interest. We are also conscious of the fact that compensation awarded under Section 357(1)(b) is not intended to be an elaborate exercise taking note of interest, etc. Our observations are necessitated due to the need to have uniformity and consistency in decision making. In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of the law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts. Citizens will not be able to arrange or regulate their affairs in a proper manner as they will not know whether they should simultaneously file a civil suit or not. The problem is aggravated having regard to the fact that in spite of Section 143(3) of the Act requiring the complaints in regard to cheque dishonour cases under Section 138 of the Act to be concluded within six months from the date of the filing of the complaint, such cases seldom reach finality before three or four years let alone six months. These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases. While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency with other courts dealing with similar cases.
20. One other solution is a further amendment to the provisions of Chapter XVII so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 9/12 uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the Act, which is to increase the credibility of the instrument. This is however a matter for the Law Commission of India to consider.
In view of the above said case law, it is clear that usually compensation amount should be awarded with interest to avoid the financial losses to the complainant.
13. Further, the default sentence against compensation or fine cannot be a solution for the complainant and accused may escape of his financial liability by serving the default sentence. The solution of such difficulty lies under section 421/431 of CrPC, under which compensation / fine amount may be made recoverable. The law to this effect has laid down in case titled Kumaran v. State of Kerala, (2017) 7 SCC 471, as per which, compensation/ fine is recoverable u/s 421/431 CrPC. The relevant observation of the case is as under:
27. These two judgments make it clear that the deeming fiction of Section 431 CrPC extends not only to Section 421, but also to Section 64 of the Penal Code. This being the case, Section 70 IPC, which is the last in the group of sections dealing with sentence of imprisonment for non-payment of fine must also be included as applying directly to compensation under Section 357(3) as well. The position in law now becomes clear. The deeming provision in Section 431 will apply to Section 421(1) as well, despite the fact that the last part of the proviso to Section 421(1) makes a reference only to an order for payment of expenses or compensation out of a fine, which would necessarily refer only to Section 357(1) and not Section 357(3).
Despite this being so, so long as compensation has been directed to be paid, albeit under Section 357(3), Section 431, Section 70 IPC and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1). This would, however, be without the CR No.51/2022 Deepak Nagar Vs. Sanjay Kumar & Anr. 10/12 necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357(3).
As such, default of payment of compensation/fine is recoverable.
14. Now the merit of this Revision Petition has to be dealt. Ld. Trial Court has awarded a sentence / punishment of TRC against a punishment of 2 years prescribed by section 138 of NI Act and such punishment cannot be considered adequate in any manner. The purpose of awarding punishment to an accused is not only to save the society from his wrongdoings but also to make him realize that he has committed a wrong, but inadequacy of punishment/ sentence encourages a guilty to commit a similar crime / offence again and also erode the faith of the victim as well as society in legal process. In the present case, Revisionist contested the trial of this case for about 7 years, but Ld. Trial Court has awarded just a TRC, which cannot be said adequate from any angle. In fact, such sentence of TRC is not in consonance of crime committed by accused and has to be enhanced. As such, in view of the facts and to meet out justice, the sentence of TRC awarded to the Respondent No.1/ accused is hereby enhanced to 6 months SI.
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15. However, the compensation amount of Rs. 11 Lacs awarded against the cheque amount of Rs. 10 Lacs is sufficient, but the Revisionist shall be entitled for an interest against the above said compensation amount @ 9% per annum from the date of filing of the Criminal Complaint and upto the date of its payment / realization, in terms of guidelines in case titled R. Vijayan v. Baby (Supra) payable in 30 days from this judgment. The default sentence of this compensation shall remain same, but the compensation amount shall be recoverable in terms of section 421/431 CrPC as laid down by Kumaran case (Supra). However, the litigation charges as well as default sentence against such charges shall also remain same. Default sentence shall run after main sentence u/s 138 of NI Act. With these observations this Revision Petition disposed off.
16. Copy of the judgment be sent to Ld. Trial Court with TCR.
17. Copy of judgment also be sent to Jail Authorities for necessary information and compliance.
18. Revision file be consigned to Record Room.
Digitally signed by DEVENDRA DEVENDRA KUMAR
KUMAR Date:
2022.07.18
14:21:16 +0530
Announced in open court (Devender Kumar)
today on 18.07.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
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