Final Order 16

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CR. REV No. 348/2023 CNR No. : DLST01-008888-2023
CR. REV No. 349/2023 CNR No. : DLST01-008887-2023
DATE OF INSTITUTION : 16.09.2023
CR. REV No. 380/2023 CNR No. : DLST01-010191-2023
CR. REV No. 381/2023 CNR No. : DLST01-010190-2023
CR. REV No. 382/2023 CNR No. : DLST01-010192-2023
CR. REV No. 383/2023 CNR No. : DLST01-010195-2023
CR. REV No. 384/2023 CNR No. : DLST01-010196-2023
DATE OF INSTITUTION : 04.10.2023
Leo Infracapital Pvt. Ltd.
Through its CEO,
Mr. Devi Dayal Garg,
Office At: Y-126, 1st Floor, Loha Mandi,
Naraina, New Delhi-110028 …….......... REVISIONIST
VERSUS
1. M/s Radlay Metal Products Pvt. Ltd.
Registered Office at: K-44, Udyog Nagar,
Near Peeragarhi, New Delhi-110041
2. Mr. Naresh Kumar Kakkar,
Director,
Also At: House No. 106, 1st Floor,
State Bank Nagar, Pachim Vihar,
New Delhi-110063
3. Ms. Vimmi Kakkar,
Director,
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At: K-44, Udyog Nagar,
Near Peeragarhi, New Delhi-110041
………….. RESPONDENTS
AND
Leo Ispat Ltd.
Through its Director,
Mr. Devi Dayal Garg,
Address: 12/19, Second Floor,
Punjabi Bagh (East), New Delhi,
Also at: Y-126, 1st Floor, Loha Mandi,
Naraina, New Delhi. …………… REVISIONIST
Vs.
1. M/s Radlay Metal Products Pvt. Ltd.
Registered Office at: K-44, Udyog Nagar,
Near Peeragarhi, New Delhi-110041
2. Mr. Naresh Kumar Kakkar,
Director,
Also At: House No. 106, 1st Floor,
State Bank Nagar, Pachim Vihar,
New Delhi-110063
3. Ms. Vimmi Kakkar,
Director,
At: K-44, Udyog Nagar,
Near Peeragarhi,
New Delhi-110041
………….. RESPONDENTS
ARGUMENTS HEARD ON : 30.09.2024
DATE OF JUDGMENT : 13.11.2024
Cr Rev No. 348/2023, 349/2023, 380/2023, 381/2023, 382/2023, 383/2023, 384/2023
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J U D G M E N T
1. Vide this common judgment, I shall decide seven
criminal revisions, which have been preferred by
complainant against orders on sentence, all dated
01.02.2018, passed by trial court in seven separate
complaint cases all titled as “Leo Infra Capital Pvt Ltd Vs
Radlay Metal Products Pvt Ltd” & “Leo Ispat Ltd
Vs M/S. Radlay Metal Products Pvt Ltd. And Anr.”
bearing Criminal Revision Nos. 348/2023, 349/2023,
380/2023, 381/2023, 382/2023, 383/2023 and 384/2023,
all under Section 138 Negotiable Instruments Act
(hereinafter referred to as the Act).
2. Briefly stated, the relevant facts giving rise to these
revisions are that seven complaint cases were filed against
respondents M/s Radlay Metal Products Pvt. Ltd. and its
directors namely Naresh Kumar and Vimmi Kakkar, for
offence under Section 138 NI Act. These separate seven
complaint cases pertained to dishonour of cheques in
question arising out of a common transaction. In discharge
of their liability, several cheques were alleged to be issued
on behalf of M/s Radlay Metal Products Pvt. Ltd. in favour
of M/s Nakshatra Steel Sales & Services Ltd., pertaining to
seven different complaint cases which were on
presentation got dishonored. Thereafter, legal notice was
issued and when accused persons failed to pay the cheques
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amount, the complaint under section 138 NI Act was filed.
3. After registration of complaint, pre-summoning
evidence was led by the complainant and summons were
issued to the accused persons. On their appearance, notice
under Section 251 Cr.P.C was framed against accused
persons on 21.12.2012 in all seven cases, to which they
pleaded not guilty and claimed trial.
4. Thereafter, accused were allowed to cross examine the
complainant u/s 145(2) NI Act. After closing of complainant
evidence, the matter was fixed for recoding the statement of
the accused under Section 313 Cr.P.C. After that the matter
was fixed for defence evidence. Defence evidence was
closed on 19.01.2015 and the matter was fixed for final
arguments.
5. Final arguments were heard on 11.12.2017 and after
passing the judgment, the orders on sentence were passed
against convicts vide impugned orders dated 01.02.2018,
in all seven complaint cases.
6. Vide impugned orders on sentence dated
01.02.2018, Ld. Trial Court sentenced the convicts as
under:
i. In CIS No.476590/2016 (Criminal Revision No.
349/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
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Rs.10,000/, to be payable to the Govt. and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.33,39,410/- in the
ratio of 50:50 with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same, the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
ii. In CIS No.47658/2016 (Criminal Revision No.
348/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.31,23,599/- in the
ratio of 50:50 with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
iii. In CIS NO. 476588/16 (Criminal Revision No.
384/2023), convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.42,65,867/- in the
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ratio of 50:50, with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same, the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
iv. In CIS No. 476589/2016 (Criminal Revision No.
380/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs. 42,20,634/- in the
ratio of 50:50, with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
v. In CIS No. 476586/2016 (Criminal Revision No.
381/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.57,77,936/- in the
ratio of 50:50, with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same the
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respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
vi. In CIS No. 476584/16 (Criminal Revision No.
382/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.26,26,028/- in the
ratio of 50:50, with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
vii. In CIS no. 476585/16 (Criminal Revision No.
383/2023) convict No.1 (i.e. the company, Radlay
Metal Products Pvt. Ltd.) was sentenced to pay fine of
Rs.10,000/, to be payable to the Govt and convict Nos.
2 & 3 (i.e. Mr. Naresh Kakkar and Mrs. Vimmi Kakkar)
were sentenced to pay fine of Rs.31,23,599/- in the
ratio of 50:50, with interest at the rate of 9% per annum
from the date of cheques in question, to be paid as
compensation, in default of payment of same the
respondents No.2 & 3 to undergo sentence of three
months simple imprisonment.
7. Being aggrieved by the impugned orders on
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sentence, revisionist has preferred this revision on
following grounds:-
i. that the Ld. MM has erred in passing the impugned
order and has awarded very less compensation in
favour of the petitioner, which is a mere 9% interest on
the amount of the cheques, instead of double the
amount of cheques, hence, the impugned order dated
01.02.2018 is perverse, arbitrary and outcome of non-
application of mind.
ii. that the Ld. MM has failed to impose the substantive
sentence of imprisonment upon the respondents/
convicts in complete ignorance of provisions of Section
138 NI Act and the objective behind the enactment of
the act.
iii. that the Ld. Trial Court has erred in passing the
order by concluding that the respondents/ convicts have
been willing and ready to make the payment of the
cheques from the very beginning, although, purported
offer of payment was always made by the respondents/
convicts with numerous conditions and even the Ld.
Trial Court vide its order dated 31.08.2012 had
dismissed the application filed by respondents/ convicts
for payment.
iv. that the Ld. MM has overlooked some crucial
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factors that ought to have been accounted for while
sentencing the convicts and in light of such aggravating
circumstances, a more stringent sentence ought to have
been imposed.
v. that the Ld. MM has failed to appreciate that the
Hon’ble Supreme Court vide its order dated
18.04.2015, has directed the respondents / convicts to
deposit the amount of cheques in question along with
15% interest as a condition to hear the special leave
petition, therefore, awarding 9% interest by trial Court
is abnormally less.
8. I have heard arguments advanced by Ld. counsels
for both the parties and also perused the trial court record.
9. Ld. Counsel for revisionist in addition to above
grounds argued that the impugned order dated 01.02.2018
is liable to be dismissed as the same has been pronounced
in gross ignorance of various pronouncements of the
Hon’ble Supreme Court and various other courts of the
country governing the subject matter at hand. He prayed
that this revision may be allowed and the sentence be
modified, enhancing the compensation awarded by Ld.
Trial Court.
10. On the other hand, Ld counsel for the respondents
has contended that the respondents were ready and willing
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to make the payment of cheque amount since the time of
their first appearance and the Ld. Trial court has rightly
considered this aspect while awarding sentence. He also
argued that respondents have already made the payment of
fine/compensation amount and the complainant has
challenged the impugned order almost after 5 years, which
is highly time barred. Further, he supported the impugned
order on sentence and prayed for dismissal of this revision.
11. Respondents have been convicted u/s 138 of NI Act.
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 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
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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.
12. Perusal of the above said section makes 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.
13. The contention of revisionist is that a mere 9%
interest on the amount of the cheques, instead of double
the amount of cheques is not sufficient enough to meet the
liability of the cheques issued by respondents.
14. Before coming to the contentions of revisionist, it is
pertinent to mention here that the convicts/respondents
preferred seven criminal appeals against the judgments of
conviction and orders on sentence, which were decided by
Ld. Session court vide order dated 15.05.2023, and all the
seven appeals were dismissed. The conviction was upheld
against accused no. 1 and 2 and accused no. 3 was
acquitted. In view of the acquittal of accused no 3 Vimmi
Kakkar, Ld. Session court also modified the order on
sentence in following manner:-
“So far as the sentence is concerned, it seems that fine was imposed
by the Ld. Trial Court. Apparently, the fine was not only paid by the
accused persons but has also been released in favour of the
complainant. The only modification which is required in the order of
sentence is that the liability indicated against accused no. 3 Vimmi
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Kakkar shall not exist independently and the fine amount shall be
deemed to have been imposed on the accused no.1 company and
accused no. 2 Naresh Kumar.
With the aforesaid modification and clarification, the appeals are
partly allowed. Accused Vimmi Kakkar shall furnish bail bond and
suretly bond to the tune of Rs. 10,000/- each for the purpose of
Section 437-A Cr.P.C.”
15. As is apparent from the above order that while
deciding the appeal, the Ld. Session court also considered
the order on sentence and observing that the fine has
already been paid and released in favour of complainant,
did not made any change in the sentence awarded, except
the modification in regard to accused Vimmi Kakkar, who
was acquitted.
16. From the face of record, it is an admitted position
that the revisionist has already received the fine amount. It
is also admitted that the order dated 15.05.2023, has not
been challenged by either of the parties and has attain
finality. Now the question arises as to whether this court in
exercise of revisional jurisdiction can enhance the sentence
and compensation amount as prayed by the revisionist.
17. In the matter of Taron Mohan v. State & Anr 2021
SCC OnLine Del 312 Hon'ble Delhi High Court has
observed as under:-
“9. The scope of interference in a revision petition is extremely
narrow. It is well settled that Section 397 CrPC gives the High
Courts or the Sessions Courts jurisdiction to consider the
correctness, legality or propriety of any finding inter se an order and
as to the regularity of the proceedings of any inferior court. It is also
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well settled that while considering the legality, propriety or
correctness of a finding or a conclusion, normally the revising court
does not dwell at length upon the facts and evidence of the case. A
court in revision considers the material only to satisfy itself about
the legality and propriety of the findings, sentence and order and
refrains from substituting its own conclusion on an elaborate
consideration of evidence.”
18. Further, Hon’ble Apex Court in Sanjaysinh Ramrao
Chavan vs. Dattatray Gulabrao Phalke and others, 2015
(3) SCC 123 observed as under :
“14.....Unless the order passed by the Magistrate is perverse or the
view taken by the court is wholly unreasonable or there is non-
consideration of any relevant material or there is palpable
misreading of records, the Revisional Court is not justified in setting
aside the order, merely because another view is possible. The
Revisional Court is not meant to act as an appellate court. The
whole purpose of the revisional jurisdiction is to preserve the power
in the court to do justice in accordance with the principles of
criminal jurisprudence. The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated with that of an
appeal. Unless the finding of the court, whose decision is sought to
be revised, is shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the decision is based
on no material or where the material facts are wholly ignored or
where the judicial discretion is exercised arbitrarily or capriciously,
the courts may not interfere with decision in exercise of their
revisional jurisdiction.”
14. In the above case also conviction of the accused was recorded,
the High Court set aside the order of conviction by substituting its
own view. This Court set aside the High Court’s order holding that
the High Court exceeded its jurisdiction in substituting its views and
that too without any legal basis.”
19. Therefore, in view of the settled position of law, this
court in its revisional jurisdiction, is not expected to
substitute its own view with that of court below unless the
order passed by Ld. Trial Court suffers from jurisdictional
error or patent infirmity/illegality.
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20. The sentence awarded to the convict is not to be
enhanced merely to satisfy the sense of vengeance of the
complainant. The Ld. MM has not only imposed the fine
with 9% interest from the date of cheques in question but
has also passed default sentence of non payment of fine.
Further, the revisionist has already received the fine
amount.
21. It may be further noted that order on sentence was
passed on 01.02.2018 and the present revisions were filed
on 16.09.2023 and 04.10.2023. The same was clearly
beyond the limitation period. The reason given in
condonation application is that the revisionist under
bonafide mistake has preferred appeals against the order
instead of revision. The complainant had challenged the
order on sentence dated 01.02.2018 vide seven appeals,
which were instituted on 02.04.2018 and decided on
15.05.2023 with following relevant observations:
“I am of view that every person should get a chance to project his
claim before the court in an appropriate manner and even if he has
inadvertently taken a wrong procedural step, he should not be made
to suffer. If the law permits exclusion of time period in prosecuting
the present appeal or condonation of delay, the complainant shall be
at liberty to approach the appropriate forum for enhancement of
sentence through preferring a revision.”
22. Even if the delay for the said period of appeal is
condoned then also the present revision petitions have not
been filed within the limitation period. I am unable to find
any justification for condonation of delay. The application
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moved under section 5 of Limitation Act is therefore
rejected.
23. Ld. Counsel for revisionist has failed to point out
any patent illegality/ infirmity or jurisdictional error in the
impugned order and therefore, present revision petitions
are liable to be dismissed.
24. In view of the above observation, the revision
petition petitions bearing Cr Rev No. 348/2023, 349/2023,
380/2023, 381/2023, 382/2023, 383/2023 and 384/2023
are accordingly dismissed.
25. All the revision files be consigned to record room
after due compliance. One copy of judgment under
signature of undersigned be placed in Cr Rev No.
348/2023 and digitally signed copies be placed in the other
revision petitions.
26. Copy of this judgment along with TCRs be sent to
the Trial Court.
ANNOUNCED IN THE OPEN COURT
TODAY ON THIS 13th DAY OF NOVEMBER, 2024
(PURSHOTAM PATHAK)
ADDITIONAL SESSIONS JUDGE (SOUTH)
SAKET COURTS : NEW DELHI
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