SHAILENDER SAXENA Vs. STATE AND ANR

JUDGEMENT

(1.) There are two Criminal Revision Petition under Section 397 read with 401 of the Code of Criminal Procedure against judgment dated 11th March, 2008 passed by the Additional Sessions Judge, Karkardooma Courts, Delhi in Crl. Appeal No. 33/2007 The Criminal Revision bearing No. 336/2008 has been filed by the accused challenging the judgment dated 11.03.2008 passed by ASJ, Patiala House Courts and the judgment of conviction dated 17th August, 2004 and the order of sentence dated 23rd August, 2004 passed by the learned Trial Court in a case bearing No. 1596/2003 convicting the petitioner for an offence under Section 138 of Negotiable Instruments Act and sentencing him for a period of one year simple imprisonment with a fine of Rs. 20.00 lakhs. In default of payment of fine, simple imprisonment for one year was imposed. The learned ASJ had converted the fine amount of Rs. 20 lacs into a compensation amount of Rs. 8 lacs to be recovered from the petitioner by resorting to Section 421 Cr.P.C. So far as second Revision bearing No. 388/2008 is concerned that has been filed by the complainant for enhancement of the compensation amount of Rs. 8 lacs.

(2.) Briefly stated, that facts of the case are that the respondent No. 2 was known to the present petitioner/accused since their fathers were friends. It was stated in the complaint that the petitioner was a proprietor of M/s Shail Steel Company located at Rishikesh and he asked the respondent No. 2 for a loan for a short period. The said loan was allegedly given by way of three drafts for a sum of Rs. 1.00 lakh each and a cheque for Rs. 40,000/- and Rs. 6.00 lakh. In all, a sum of Rs. 9.40 lakh is alleged to have given by the respondent No. 2 to the present petitioner. The petitioner in order to discharge the liability of said loan had issued a cheque No. 938538 dated 16th June, 1998 for a sum of Rs. 12,91,213/- drawn on Oriental bank of Commerce, Rishikesh Branch in favour of the respondent No. 2. It is alleged that the said amount was actually inclusive of the interest on the principal amount of Rs. 9.40 lakh and was paid to the respondent No. 2 towards the full and final settlement of his entire liability. It is this cheque which was dishonoured. After a prolonged trial, the learned Trial Court passed a judgment finding the petitioner guilty of the offence under Section 138 Negotiable Instruments Act and then sentenced him to one year of simple imprisonment apart from fine of Rs. 20.00 lakh. The judgment was passed on 17th August, 2004 and the order of sentence on 23rd August, 2004.

(3.) Petitioner feeling aggrieved by his conviction and the sentence chose to file a criminal appeal bearing No. 33/2007 against the order of the learned Magistrate. In the appeal, all the pleas, factual as well as legal, pertaining to vitiating the trial on account of non-service of notice, presumption and various other points were taken. The learned Appellate Court passed a detailed order rejecting all the contentions, both factual as well as legal, urged by the petitioner and upheld his conviction, however as the petitioner during the pendency of his appeal had actually paid the principal amount, the learned Appellate Judge taking into consideration this as a mitigating factor reduced the payment of fine from Rs. 20.00 lakh to Rs. 8.00 lakh converted the same into compensation. It is further observed that since the principal amount had been paid, therefore the custodial sentence would not serve any purpose and therefore, the additional amount of Rs. 8.00 lakh by way of fine be recovered by resorting to recovery process as envisaged under Section 421 of the Code of Criminal Procedure. With this modification of sentence, the conviction of the petitioner was upheld.