Delhi District Court
Lalit Kumar vs The State And Ors on 25 January, 2024
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
EAST: KARKARDOOMA COURTS, DELHI.
CRIMINAL REVISION NO.91/2023
Sh. Lalit Kumar
S/o Sh. Bhagwan Das Nasa
R/o 2-A/58, Geeta Colony,
Delhi-110031. ... Revisionist
VERSUS
1. The State
(Govt. of NCT of Delhi).
2. Sanjay Dua
S/o Sh. Ram Lal
R/o H. No. 3/28, 1st Floor,
Geeta Colony, Delhi-110031. ...Respondents
Date of Institution : 06.04.2023
Date of Decision : 25.01.2024
JUDGMENT
1. Revisionist (complainant) has filed present revision against impugned order of sentence dated 04.01.2023 vide which accused/respondent no.2 Sanjay Dua has been sentenced to undergo SI for a period of 3 (three) months and to pay a fine of Rs.8,00,000/- (Rupees Eight Lakhs) i.e. the amount of cheque in question along with simple interest @ 9% per annum from the date of filing of complaint (i.e. 07.01.2015) till date of judgment (i.e. 25.05.2022). The compensation amount was directed to be paid within 30 days from the date of order of sentence i.e. 04.01.2023, CR No. 91/23 Lalit Kumar Vs. State & Anr. Page 1 of 6 failing which convict/respondent no.2 herein was to undergo SI for 2 months in default. It was further ordered that if the compensation amount was not paid in time, it shall be recoverable under the provisions of Section 431 r/w section 421 Cr.P.C.
2. Notice of appeal was issued to the respondent. Reply has been filed on behalf of respondent no.2 reiterating therein his case that he had taken loan of Rs.50,000/-, which stood repaid and in view of material available on record, sufficient sentence was awarded. There is no substance in revision and same is liable to be dismissed Trial court record was also requisitioned.
3. Facts leading to filing of present revision petition are that the revisionist/complainant had filed a complaint under Section 138 of Negotiable Instruments Act (NI Act) against Sh. Sanjay Dua, accused/respondent no.2 herein, alleging that complainant had given Rs.8,00,000/- to respondent no.2, as a friendly loan vide cheque dated 27.05.2013. Respondent no.2 in discharge of his liability, issued a post dated cheque of Rs.8,00,000/-, which on presentation got dishonoured. Therefore, a legal notice was issued to the respondent no.2 but no payment was made by respondent no.2, hence, complaint was filed under section 138 NI Act. Accused was summoned, notice under Section 251 Cr.P.C. was served on the accused. Complainant led his evidence, statement of accused was recorded. Thereafter, accused also led his defence evidence. Final arguments were advanced on behalf of parties and after considering the material available on record, respondent no.2 was convicted under section 138 NI Act vide judgment dated 25.05.2022. After hearing Ld. Counsels for both the parties, CR No. 91/23 Lalit Kumar Vs. State & Anr. Page 2 of 6 impugned order on sentence was passed against respondent no.2, as mentioned above. Being aggrieved with impugned order on sentence, the complainant has filed present revision.
4. Ld. Counsel for the revisionist/complainant has submitted that Ld. Trial Court had not considered conduct of accused/respondent no.2 while passing sentence, as he absented several times during trial and warrants were issued against him; the accused tried his level best to delay the disposal of the case. It is submitted that accused has admitted during cross-examination that he had taken a loan of Rs.8,00,000/- from the revisionist and had issued cheque for aforesaid sum towards his loan liability and that said cheque was dishonoured. Even accused has admitted his thumb impression on the loan agreement during cross-examination. It is submitted that a lesser sentence has been awarded to the accused. It is argued that sentence of SI of 3 months may be enhanced to RI for 2 years and compensation amount may also be doubled. Ld. Counsel for the revisionist has placed reliance on the following judgments:-
(1) Suganthi Suresh Kumar vs. Jagdeeshan 2002 AIR (SC) 681; (2) S.R.Sunil vs. D. Srinivasavaradan, 2014(16) SCC 32; & (3) M/s Kalamani Tex & Anr. vs. P.Balasubramanian 2021(5) SCC 283.
5. On the other hand, Ld. Counsel for the respondent no.2 has submitted that sufficient sentence has been given to the accused in the given facts and circumstances. It is further submitted that respondent no.2 had surrendered and undergone the imprisonment CR No. 91/23 Lalit Kumar Vs. State & Anr. Page 3 of 6 including default sentence and no ground for enhancement of sentence is made out.
6. I have heard Ld. Counsels for both the parties and considered their submissions and perused the record.
7. Present revision has been filed by the revisionist by challenging the order passed by Ld. Trial Court and has prayed that lesser punishment has been awarded by ld. Trial Court to the accused. It is also submitted by Ld. Counsel for revisionist that considering the amount of cheque involved and delay caused by accused, maximum sentence of imprisonment and maximum amount of fine should have been awarded to the accused.
8. In order to press the relief claimed, revisionist has relied upon three judgments. Since, it is established law that when a range of sentence is given i.e. upto two years of sentence can be granted to the accused/convict, it is prerogative of Ld. Trial Court to consider what is most suitable sentence to be awarded to the convict. First judgment relied upon by the revisionist is Suganthi Suresh Kumar vs. Jagdeeshan (supra). In this case, before Hon'ble Supreme Court of India, amount of both the cheques was Rs.4,50,000/- and Ld. Magistrate while convicting the accused had sentenced him to undergo imprisonment till rising of the Court and pay a fine of Rs.5,000/-. This was found to be insufficient by Hon'ble Supreme Court of India. Hon'ble Supreme Court of India remitted the matter to Ld. Trial Court for considering proper sentence to be passed. Therefore, in that case, Hon'ble Supreme Court has not awarded any sentence to the convict but has observed in para 11 as follows:
CR No. 91/23 Lalit Kumar Vs. State & Anr. Page 4 of 6"11. 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 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 complainant there perhaps would have been justification for imposing a flee-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 look out 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 accused paid the amount atleast during the pendency of the case."
9. From perusal of this, it is clear that Hon'ble Supreme Court has observed that in its opinion the sentence for offence under Section 138 N.I. Act should be of such nature as to give proper effect to the object of legislation. The purpose for the same being that dishonour of cheque issued by drawer of cheque should not be taken light heartedly.
10. In the present case, Ld. Trial Court has convicted accused under Section 138 NI Act and had sentenced him to undergo simple imprisonment for 3 months and has also directed to pay fine of Rs.8,00,000/- with simple interest @ 9% per annum from the date of filing of complaint till date of judgment. Therefore, for the period for which accused has allegedly delayed the matter, he has been burdened to pay interest @ 9% per annum. Further, it has been directed by Ld. Trial Court that in case, the accused fails to pay fine within 30 days, the convict/accused shall undergo simple imprisonment for two months. Therefore, I am of the opinion that CR No. 91/23 Lalit Kumar Vs. State & Anr. Page 5 of 6 relying upon the judgment of "Suganthi Suresh Kumar vs. Jagdeeshan (supra), Ld. Trial Court has passed appropriate sentence.
11. Similarly, in S.R.Sunil vs. D. Srinivasavaradan, (supra), the accused was sentenced to imprisonment till rising of Court and pay a fine of Rs.5,000/-, hence, as per this judgment also, Ld. Trial Court had sentenced the convict/respondent as per law.
12. Facts of M/s Kalamani Tex & Anr. vs. P. Balasubramanian(supra) can also be differentiated from the present case. Though, in this case, Hon'ble Supreme Court has also held that considering the amount of the cheque, double the amount of cheque can be awarded. But this rule has not been made a general rule. In that case, only a fine of Rs.5,000/-was imposed on the convict by Ld. Trial Court, whereas in the present case, fine of Rs.8,00,000/- along with simple interest @ 9% per annum has been imposed on the accused to be paid to the complainant as compensation.
13. In view of above discussion, I am of the opinion that there is no discrepancy or illegality in the impugned order of sentence awarded to the convict. Revision petition thus has no merits and same is accordingly dismissed. TCR be sent back along with copy of the order.
File be consigned to Record Room.
Digitally signedSHAIL by SHAIL JAIN Date:
Announced in the open court JAIN 2024.01.25
16:46:59 +0530
today on 25thJanuary, 2024 (MS. SHAIL JAIN)
Principal District & Sessions Judge,
East, Karkardooma Courts, Delhi
CR No. 91/23
Lalit Kumar Vs. State & Anr. Page 6 of 6