Punjab-Haryana High Court
Sonia Verma vs M/S Hydra International on 7 September, 2022
CRR-3009-2016 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Sr. No.230 CRR-3009-2016 (O&M)
Date of decision : 7.9.2022
Sonia Verma
.....Petitioner(s)
VERSUS
M/s Hdra International
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: Mr.KC Bhatia, Advocate for the petitioner
Mr.KS Godara, Advocate for the respondent
AMAN CHAUDHARY, J.
The present revision petition has been filed by the petitioner, challenging the judgment dated 9.8.2016, passed by the learned Additional Sessions Judge, Chandigarh, dismissing the appeal filed by the petitioner against the judgment of conviction and order of sentence dated 11.8.2015, rendered by the learned Judicial Magistrate, 1st Class, Chandigarh, vide which the accused-petitioner had been convicted and sentenced as under:
Offence Imprisonment Fine In default of u/s payment of fine 138 NI RI for 1 year Rs.2,32,977/- - Act u/s 357(3) Cr.P.C. as compensation
Succinctly, the facts of case are that complainant-respondent- firm was dealing in the business of sanitary material from whom petitioner being the proprietor of M/s Vishwas Ceramics had purchased the sanitary material for which three cheques bearing Nos. 763895 of Rs.1,25,072, 1 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 2 Cheque No. 763894 of Rs.69,478/- and cheque No. 763896 of Rs.38,427, all dated 25.8.2020 drawn on Karnataka Bank Ltd, Faridabad in were issued in favour of the complainant-Firm. On presentation of the said cheques for clearance by the respondent-complainant- firm, the same were returned unpaid by the bank on 17.2.2011 and 19.2.2011 with the remarks "payment stopped by drawer". Thereafter, the complainant- respondent sent a legal notice to the petitioner. When no response was received, the complainant- respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') before the learned JMIC. In pre-summoning evidence, complainant -respondent examined himself as CW1, tender his affidavit alongwith documents as Ex.CA, C1 to C7.
On finding sufficient grounds, the learned trial Court summoned the petitioner under Section 138 NI Act to face the trial, to which she did not pleaded guilty and claimed trial.
To prove the case, respondent- complainant's proprietor Krishan Kumar Dhaka, as CW1 and Arun Kumar as CW2 and by placing on record other documentary evidence in support of his case, closed the evidence.
On closing of the complainant's evidence, statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating material appearing in the complaint was put to the accused. However, she denied the allegations, alleged as incorrect, false implication and claimed herself to be innocence. She stated that the cheques in question were issued as security and payment against the cheques were made through RTGS. In her defence, the accused examined herself as DW1, Mohinder 2 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 3 Kumar as DW2.
After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that the complainant has successfully proved the case, bringing home guilt against the accused. Accordingly, the accused- petitioner was convicted and sentenced as mentioned above in para no.1.
Feeling aggrieved, the convict-petitioner had filed an appeal, which was dismissed by the learned Additional Sessions Judge, Chandigarh vide impugned judgment dated 9.8.2016.
Hence, the present revision petition.
Learned counsel for the petitioner submits that there is no minimum sentence prescribed under Section 138 of NI Act. He makes a reference to order dated 17.12.2016 to submits that the petitioner had already undergone 2 months and 29 days till 7.11.2016; when this court suspended his sentence. He further submits that by relying on the aforesaid order that the petitioner had already handed over a draft amounting to Rs.2,33,000/- as compensation being cheque amount as awarded by the courts below to the learned counsel for the respondent in the present case. He further submits that the respondent in this case had filed CRM-M- 23391-2017 under Section 482 Cr.P.C. for enhancement of compensation before this Court, which was dismissed by this Court vide order dated 16.8.2017.
Learned counsel for the respondent has affirmed the aforesaid facts including the dismissal of his petition and receipt of the 3 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 4 compensation amount in terms of the judgment by learned trial Court.
He has also submitted that a complaint under Section 138 NI Act was initiated regarding 3 cheques issued by the petitioner on 25.8.2010, which were returned with endorsement from the bank on 17.2.2011 and 19.2.2011 with the remarks "payment stopped by drawer". He has submitted that the trial Court had convicted and sentenced the petitioner vide judgment /order dated 11.8.2015, against which the appeal preferred by him was dismissed by learned Additional Sessions Judge, Chandigarh on 9.8.2016, a such the present revision petition was filed by him on 22.8.2016.
Learned counsel for the petitioner has submitted that the petitioner has faced a prolonged trial; has already paid the compensation amount as awarded by the learned trial Court and out of 1 year sentence awarded by the learned trial Court, he has already undergone 2 months and 29 days till 7.11.2016, on which date his sentence was suspended by this Court. As such, his prayer is that the sentence of the petitioner may be reduced while upholding the conviction.
Heard the learned counsel for the parties.
Perusal of the record case file shows that the complainant - proprietor had stepping into the witness box as CW1 and deposed the factum of issuance of 3 cheques Ex.C1 to C3 in favour of the firm, which were returned unpaid by the Bank with memo Ex.C4 to C6, he withstood his deposition in cross examination also specifically denied the fact that the complainant firm had received the payment of cheques through RTGS in relation to the item supplied to the accused- petitioner. The defence of the 4 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 5 accused being the cheques have been issued as security for the material having been supplied and the payments against the cheques in question made through RTGS, based on the judgment of Hon'ble Bombay High Court and this Court, the first point of determination was answered in favour of the complainant. It is on account of the dishonour of the chequs issued to discharge the liability and the notice having been issued within the statutory period and the accused being the sole proprietor of the firm was held guilty for the the commission of offence punishable under Section 138 NI Act, as such the second point of determination was also answered in favour of the complainant.
The appellate court also after scrutinizing the pleadings of the parties, affirmed the judgment and order of conviction passed by the trial Court. This Court has also gone through the concurrent findings recorded by the courts below and finding no infirmity and illegality in the judgment of conviction, affirms the same.
In so far as the prayer of the petitioner is concerned inasmuch as that the sentence of the petitioner may be reduced to the period already undergone, in view of the submissions made on behalf of the petitioner, it is apposite to refer to the judgments of the Hon'ble Supreme Court in the case of "R. Soundarajan v. Seed Inspector, Coimbatore and another"
reported as 2006(4) R.C.R. (Criminal) 645; "Umrao Singh v. State of Haryana', 1981 AIR (SC) 1723. and the judgment of his Court in "Sahab Singh vs. State of Haryana" 2019(3) RCR (Crl.) 727.
The relevant observations made by the Hon'ble Supreme Court in the case of R. Soundarajan (supra) are as under:-
5 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 6 "26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment."
Similarly in the case of Umrao Singh (supra) the Apex Court has observed as under:-
"After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16(1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/ petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.
2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith.
3.The appeal is disposed of accordingly."
In the case of Sahab Singh (supra) by following the judgment of the Hon'ble Supreme Court in "State of Punjab vs. Saurabh Bakshi"
2015 (2) RCR (Criminal) 495, this Court while upholding the conviction of 6 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 7 the petitioner therein has reduced the sentence of the petitioner by observing as under:-
"However, the prayer of the learned counsel for reduction of the substantive sentence of the petitioner to six months in view of the Hon'ble Supreme Court's judgment in Saurabh Bakshi's case, merits acceptance. It may be noticed that as per the custody certificate produced on record, the petitioner has already undergone 7 months and 9 days out of the total sentence of two years imposed upon him.
The Hon'ble Supreme Court in Saurabh Bakshi's case (supra), while setting aside the order of the High Court, thereby reducing the sentence imposed upon the accused i.e. one year to the period already undergone by him i.e. 24, days, awarded the sentence of six months to the accused- respondent therein. It was held as under:- "17. In the instant case the factum of rash and negligent driving has been established. This court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage. The protagonists, as we perceive, have lost all respect for law. A man with the means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse than death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High 7 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 8 Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months."
Reverting to the facts of the present case that the parties are ad idem on the fact of receipt of the compensation as awarded by the learned trial court as also the dismissal of the petition filed by the complainant- respondent for enhancement of the compensation by this Court vide judgment dated 16.8.2017, this Court cannot loose sight of the fact that the petitioner had actually faced a protracted trial right from the year 2011, when the complaint had been instituted under Section 138 NI Act by the respondent against the petitioner till date; as also the fact that the petitioner has undergone 2 months and 29 days out of the total sentence of 1 year warded to him by the trial Court.
Keeping in view the mitigating circumstances noted above, this Court is of the considered view and has no hesitation to conclude that the ends of justice would be adequately be met if the sentence of the petitioner is ordered to be reduced to the period already undergone by him i.e. 2 months and 29 days till today 7.11.2016 as mentioned in the order dated 17.12.2016, vide which the sentence of the petitioner was suspended.
In view of the peculiar facts and circumstances of the present 8 of 9 ::: Downloaded on - 29-12-2022 22:56:59 ::: CRR-3009-2016 9 case noted above, coupled with the reasons aforementioned, the conviction of the petitioner in the criminal revision petition is upheld. However, the sentence is ordered to be reduced to the period already undergone by petitioner. As regards, the fine, it shall remain intact.
With the modification in the order of sentence dated 11.8.2015 passed by learned trial Court, as noted above, the criminal revision petition is partly allowed.
7.9.2022 (AMAN CHAUDHARY)
gsv JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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