Final Order 18

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. APARNA SWAMI, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
CNR No.DLND01-000039-2023
Criminal Appeal No. 02/2023
IN THE MATTER OF :
Pradeep Kumar Sharma
S/o Sh. K. C. Sharma
R/o A-394, Kaushalya Bhawan,
Gali No.8, Mahipalpur Extension,
New Delhi-110037.
.....Appellant
Versus
Punit Kalra
S/o Sh. Surender Kalra
R/o H.No.370, Ward No.4,
Mehrauli, New Delhi-110030. …...Respondent.
Date of institution of appeal : 04.01.2023
Date on which order reserved : 10.09.2024
Date of order : 30.09.2024
Final decision : Appeal is disposed off.
JUDGMENT
1. This judgment will dispose of the appeal filed by the
appellant/ complainant Pradeep Kumar Sharma against the order
on sentence dated 29.10.2022, passed by the court of the learned
Senior Civil Judge-cum- Rent Controller, Patiala House Courts,
New Delhi.
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Pradeep Kumar Sharma Vs. Punit Kalra Page 1 of 9
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2. By the impugned order dated 29.10.2022, the learned Trial
Court directed the convict i.e. the respondent herein, namely
Punit Kalra to pay compensation of Rs.10,00,000/- (Rupees Ten
Lakhs Only) within 90 days to the complainant (herein the
appellant). In case of default in payment of the compensation, the
convict is further directed to undergo simple imprisonment for
six months.
BRIEF FACTS OF THE CASE:
3. The complainant Pradeep Kumar Sharma had filed a
complaint under Section 138 of NI Act against the accused Punit
Kalra. It is alleged in the complaint that the accused had
approached the complainant for financial help. On this,
complainant agreed to give Rs.10,00,000/-. In lieu of return of
this amount, in turn, the accused had issued a cheque bearing
no.877339 dated 22.08.2019 in sum of Rs.10,00,000/- drawn on
State Bank of India-Main Market Branch, Mehrauli, New Delhi,
in favour of the complainant Mr. Pradeep Kumar Sharma. The
accused assured the complainant that the cheque would be
encashed on its presentation. It is alleged that when the
complainant presented the said cheque to his banker Vijaya Bank,
Mahipalpur, Delhi, the cheque was returned with the remark
“Funds Insufficient”.
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4. The complainant also submitted that the information
regarding dishonour of the aforesaid cheque was provided to him
by its cheque return memo dated 28.08.2017. Upon receiving this
information, the complainant, on 06.09.2017, served a legal
notice to the accused, which was duly served upon the accused,
but the accused refused to accept the legal notice and did not give
any response to this demand notice. Due to the failure of the
accused to fulfill his commitment, a complaint case bearing
no.716/2017 under Section 138 of NI Act was filed in the court
of learned Senior Civil Judge-cum-Rent Controller, Patiala
House Courts, New Delhi.
5. The pre-summoning evidence was led by the complainant
and the accused was summoned. On appearance before the court
on 23.02.2019, notice under Section 251 of Code of Criminal
Procedure,
(in short ‘CrPC’) was served upon the accused. The
accused pleaded not guilty and claimed trial. Upon receiving the
notice, the accused admitted his signatures on the cheque, but
denied filling the contents on it. Further, the accused refused to
lead any evidence in his defence.
6. The perusal of the trial court record further reveals that on
30.05.2022, an application under Section 145(2) of NI Act, was
moved by the accused, seeking permission to cross-examine the
complainant. The perusal of the order sheet reveals that as the
application under Section 145(2) of NI Act was filed on a belated
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stage, it has been observed by the Ld. Trial Court that at the stage
of framing of notice, the accused submitted that he do not wish to
lead any evidence in his defence, and this application was found
to be gross abuse of process of law and was dismissed by the Ld.
Trial Court. On the same date i.e. 30.05.2022, the statement of
the accused under Section 313 of CrPC was recorded and matter
was fixed for final arguments. It is submitted by the accused that
he issued a blank cheque to the complainant, which bears his
signatures. The accused denied taking any loan from the
complainant. The accused also submitted that he had no
knowledge regarding dishonour of the cheque, and that he had
not received any legal notice. The accused admitted that the
address on the legal notice is the same, as where he resides.
Further, the accused submitted that the cheque in question has
been misused by the complainant as they were partners in their
business transaction. The accused refused to lead any evidence in
his defence.
7. After hearing the final arguments, the learned Senior Civil
Judge-cum-Rent Controller, passed the order convicting the
accused for the offence punishable under Section 138 NI Act and
passed order on the sentence. The order on sentence reads as
under:
XXXXX
“……………….Court is of the opinion that in the matters of
present nature which are business transactions between the
parties, the Court is required to balance the interests of
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complainant having suffered a monetary loss as well as the
interest of justice by awarding an appropriate sentence to the
convict who had also suffered loss in his business due to
which default took place.
Taking note of all these circumstances, convict is sentenced
to pay compensation of Rs.10,00,000/- within ninety days
from today. In case of default in payment of compensation,
the convict shall undergo SI for six months.”
8. Aggrieved by the order on sentence, the
appellant/complainant Pradeep Kumar Sharma has preferred an
appeal before this court.
9. Upon admitting the appeal, notice was issued to the
opposite party, and arguments have been heard.
APPELLANT’S GROUNDS OF APPEAL:
10. The appellant has filed this appeal with a prayer to set
aside the order on sentence of learned Senior Civil Judge-cum-
Rent Controller, Patiala House Courts dated 29.10.2022, which
sentenced the convict to pay compensation of Rs.10,00,000/-
within 90 days from the order and in case of default in payment
of compensation; the convict is directed to undergo simple
imprisonment for a period of six months. It is contended by the
appellant that the compensation amount is inadequate and does
not fully compensate for the financial loss and inconvenience
caused to the complainant (herein the appellant). It has been
further contended that after having spent almost five years from
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the date of the institution of the complaint, the complainant
(herein the appellant) has been inadequately compensated by the
impugned order.
11. It has been further submitted that the learned Trial Court
lost sight of the fact that appellant had not filed any civil suit for
recovery of cheque amount. Therefore, appellant is unable to
recover the interest accrued during the pendency of the
proceedings from a civil court.
12. The appellant also submits that the learned Trial Court
failed to take into consideration the observation of Hon’ble
Supreme Court of India in the matter of
R. Vijayan Vs. Baby &
Anr., AIR 2012 SUPREME COURT 528, wherein it was held
that:
“
…… the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercises
the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as reasonable quantum of loss) and
direct the payment of such amount as compensation.
ARGUMENTS BY THE RESPONDENT:
13. The Ld. Counsel for the respondent/ convict opposed the
appeal on the ground that it is not maintainable. The respondent
further contended that any challenge to the adequacy of the
compensation amount should be filed before the Hon’ble High
Court of Delhi and not before the Sessions Court.
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OBSERVATIONS OF THE COURT:
14. This court has given thoughtful consideration to the
submissions made by both the sides and has perused the trial
court record.
15. An appeal bearing No. 22/2023 was filed in this court by
the accused Punit Kalra (i.e. the respondent herein) challenging
the judgment dated 10.10.2022 and the order of sentence dated
29.10.2022, passed by the court of the learned Senior Civil
Judge-cum- Rent Controller, Patiala House Courts, New Delhi, in
the complaint case bearing No. 716/17, filed under Section 138
of the Negotiable Instruments Act, 1881.
16. The order on sentence dated 29.10.2022 passed by the
court of the learned Senior Civil Judge-cum- Rent Controller,
Patiala House Courts, New Delhi reads as under:
“Taking note of all these circumstances, convict is sentenced
to pay compensation of Rs.10,00,000/- within ninety days
from today. In case of default in payment of compensation,
the convict shall undergo SI for six months.”
17. This court have dismissed the appeal bearing No. 22/2023
of convict/ accused/ appellant Punit Kalra and have amended the
order on sentence to the effect that:
“the fine imposed upon the appellant/accused for a sum of
Rs.10,00,000/-, which is to be paid as compensation to the
complainant under Section 357 CrPC on 09.10.2024 before
the Learned Trial Court. Further, in default of payment of
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fine as compensation to the complainant, the convict is
entitled to undergo simple imprisonment for six months.”
18. This court after carefully considering the record have
modified the order on sentence, by including fine and clubbing
the compensation awarded by the Learned Trial Court in the fine
amount. As the Appellate Court has already exercised its
discretion in determining both the fine and compensation, further
enhancement of compensation through an appeal becomes
restricted.
19. In the present case, the compensation has been made part
of the fine by this court in the amended sentence. As such, the
current appeal for enhancement of compensation amount is found
to be without any merits.
20. The amended sentence order in Appeal bearing No.
22/2023 passed by this court shall remain in effect and no further
enhancement of compensation is warranted.
21. In light of the same, as the order on sentence has itself
being amended by this court, and fine has been imposed of
Rs.10,00,000/- (Rupees ten lakhs), therefore, present appeal with
regard to enhancement of compensation amount is not
maintainable and thus disposed off.
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22. Copy of this judgment along with Trial Court record be
sent back to the concerned trial court.
23. Appeal file be consigned to Record Room.
Dictated & Announced in the open court
on 30.09.2024
(Aparna Swami)
Additional Sessions Judge-07
Patiala House Courts/New Delhi
30.09.2024
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