Court can award penalty along with compensation for not responding to summons: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 882 2018 & CRL.M.(BAIL) 1612 2018 CRL.M.A. 11794 2019 & CRL.M.A. 2798 2020 IN THE MATTER OF: Date of decision: 8th March 2021 PRAHALD SINGH ..... Petitioner Through Mr. Yash Karan Jain Advocate THE STATE & ANR ..... Respondents Through Ms. Kusum Dhalla APP for the State. Mr. Parikshit Ahuja Advocates with CORAM: HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This revision petition under Section 397 Cr.P.C is directed against the judgment and order dated 09.03.2018 passed by the Additional Session Judge Karkardooma Courts New Delhi in CRL. Appeal No.194 2017. The Additional Session Judge by the impugned judgment affirmed the order dated 29.06.2017 passed by the Additional Chief Metropolitan Magistrate East Karkardooma Court Delhi convicting the petitioner for an offence under Section 138 of Negotiable Instruments Act 1881and the Order on sentence dated 17.10.2017 directing the petitioner to pay a compensation of Rs.1 75 000 and in default the petitioner herein has to undergo simple imprisonment for three months. On 01.11.2019 the counsel for the petitioner on instructions from the petitioner who was present in person submitted that the petitioner is ready CRL.REV.P. 882 2018 and willing to settle the disputes with respondent No.2. It was agreed that the petitioner will make the payment of Rs.1 70 000 to respondent No.2 in four monthly instalments. The first three instalments of Rs.50 000 each were to be paid on or before 01.12.2019 01.01.2020 and 01.02.2020 respectively. The fourth and final instalment of Rs.20 000 was to be paid on or before 01.03.2020. The petitioner also undertook to deposit fine of Rs.5 000 with the Delhi High Court Legal Services Committee within four weeks. The petitioner further undertook to deposit 15% of the compensation amount with the Delhi High Court Legal Services Committee in view of the decision of Supreme Court in Damodar S.Prabhu vs. Saved Babalal H. 2010) 5 SCC 663 within four weeks thereafter. The said amount has not been paid. On 07.02.2020 the counsel for the petitioner submitted that the petitioner is willing to pay the amount provided some more time is given to him and prayed that six months time be granted and he also stated that an undertaking in this regard will be filed by him within one week. Even though time was granted the amount has not been paid. A perusal of the above orders would show that the petitioner is only using dilatory tactics to postpone the matter and is not willing to pay the amount which the petitioner had undertaken to pay vide Order dated 01.11.2019. This Court is therefore inclined to hear and dispose of the revision petition on merit. Shorn of details the facts leading to this revision petition are: The respondent No.2 instituted a complaint under Section 138 of NI Act stating that he had lent a sum of Rs.1 00 000 to the petitioner as friendly CRL.REV.P. 882 2018 loan. For the repayment of the said loan the petitioner had issued a cheque bearing No. 795471 dated 25.07.2013 drawn on State Bank of India in favour of the respondent No.2. The cheque was returned as dishonoured with the remarks “funds insufficient”. A Legal notice as contemplated under Section 138 of NI Act was sent to the petitioner on 20.08.2013 which returned back with the report "left without A complaint being C.C. No. 934 13 15 under Section 138 N.I. Act was instituted against the petitioner on 04.10.2013 in the Court of Chief Metropolitan Magistrate Karkardooma Courts address". Delhi. The petitioner took a defence that he did not take any loan of Rs.1 00 000 from the respondent No.2. He also stated that a blank cheque had been given by him to one Mahesh from whom the petitioner had taken loan. It is stated that the said Mahesh has given the cheque to the complainant which has been misused. d) Mahesh was examined as DW 2 and in his cross examination he stated that the cheque in question had never been given to him by the accused petitioner herein. The petitioner stated that he did not receive the notice under Section 138 NI Act and therefore the complaint ought to be dismissed. The learned Metropolitan Magistrate by the judgement dated 29.06.2017 held that the petitioner accused had not been able to rebut the presumption under Section 139 NI Act. The Metropolitan Magistrate noted that the petitioner accused had miserably failed to prove his defence as DW 2 Mahesh Kumar examined by him in CRL.REV.P. 882 2018 support of his defence has not supported his case. Rather DW 2 specifically stated that he had seen the cheque in question for the first time in court. The Metropolitan Magistrate also found that the Notice was sent to the address C 13 Ground Floor DLF Colony Dilshad Extension 2 Shahibabad Ghaziabad and was returned back with endorsement "house lock after repeated visits". The Metropolitan Magistrate found that the accused who was examined as DW 1 never deposed that the said address was not in his possession. The Metropolitan Magistrate noted that in his cross examination the petitioner accused has stated that he had shifted to Hari Nagar in 2012 but interestingly in the personal bond furnished by the petitioner after receiving the summons on 20.02.2014 he has mentioned his address as C 13 Ground Floor DLF Colony Dilshad Extension 2 Shahibabad Ghaziabad U.P. to which address the notice was sent. The Metropolitan Magistrate therefore held that the legal notice had been duly served on the accused petitioner herein. The petitioner was therefore held guilty of an offence under Section 138 N.I. Act. By a separate order dated 17.10.2017 the Metropolitan Magistrate sentenced the petitioner to pay a compensation of Rs. 1 75 000 in default the petitioner was to undergo SI for 3 months. Out of the compensation of Rs.1 75 000 Rs. 1 70 000 was to be paid as compensation to the complainant and Rs. 5 000 was to be deposited with State. Aggrieved by the said order the petitioner filed an appeal being CRL.REV.P. 882 2018 CRL. Appeal No.194 2017 before the Additional Session Judge Karkardooma Courts. The Additional Session Judge by the impugned judgement dismissed the Appeal. The Additional Session Judge after going through the material on record held that the petitioner has not been able to prove his defence inasmuch as Mahesh Kumar to whom the petitioner had alleged to have given the cheque stated that the cheque in question was not handed over to him by the petitioner. The Additional Session Judge relied on a judgement of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed 6 SCC 555 and held that even assuming that the legal notice was not served on the petitioner herein the service of the summons of the complaint can be treated as service of notice to the appellant petitioner herein and the accused ought to have made the payment in time as stipulated under the N.I. Act. The Additional Session Judge upheld the compensation and sentence imposed on the petitioner. It is this order which is under challenge in the present petition. 7. Mr. Yash Karan Jain learned counsel for the petitioner contends that the petitioner had not given the cheque to the complainant respondent No.2 herein and the cheque has been misused to frame him. He states that a perusal of the bank statement would show that the complainant has shown only two transaction in his bank statement the first transaction dated 27.12.2010 is for an amount of Rs.49 500 and the second transaction dated 28.01.2011 is for an amount of Rs.30 000 and the total amount comes to Rs.79 500 then how is it possible that the petitioner has given a cheque of Rs.1 00 000 to the complainant. He states that this shows that the version of the complainant respondent No.2 that a cheque was given for repayment CRL.REV.P. 882 2018 of loan is incorrect and the complainant has misused a blank cheque which came to his possession. He would also contend that the petitioner did not reside on the address to which the notice was sent. Per Contra Mr. Divyakant Lahoti learned counsel for the respondent No.2 would contend that two Courts after going through the entire records have held that the petitioner is guilty for an offence under Section 138 NI Act. Mr. Divyakant Lahoti learned counsel for the respondent No.2 has taken this Court through various documents to substantiate that the address to which the Notice was sent was the address of the petitioner. He would also states that the cheque bearing No. 795471 dated 25.07.2013 has been signed by the petitioner the cheque is in the name of the complainant and is for a sum of Rs.1 00 000 . Mr. Divyakant Lahoti learned counsel for the respondent No.2 submits that the respondent No.2 has filed his Bank Statement to substantiate his contention that a sum of Rs.1 00 000 had been given to the accused. In the Bank Statement there are three transactions which are as follows: The first transaction dated 27.12.2010 is a cheque withdrawal The second transaction dated 28.01.2011 is a cheque withdrawal for an amount of Rs.49 500 . for an amount of Rs.30 000 . The third transaction dated 18.04.2011 is a cheque transaction in favour of Prahalad for an amount of Rs.50 000 . Mr. Divyakant Lahoti learned counsel for the respondent No.2 states that out of the sum of Rs.49 500 which was withdrawn on 27.12.2010 Rs.20 000 was given to the petitioner in cash Rs.30 000 withdrawn on 28.01.2011 was also given to the petitioner in cash and a cheque for a sum CRL.REV.P. 882 2018 of Rs.50 000 was also given to the petitioner which was encashed on 18.04.2011 by the petitioner. He would therefore state that Rs.1 00 000 was given to the petitioner by the respondent No.2. Section 139 of the N.I. Act raises a presumption in favour of the holder. Section 139 of the N.I. Act reads as under: “The Negotiable Instruments Act 1881 139. Presumption in favour of holder.—It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge in whole or in part of any debt or other 10. No doubt the presumption is rebuttable. To rebut the presumption the petitioner has raised two fold contentions. The first contention he has raised is that he gave a cheque to one Mahesh Kumar and that the said Mahesh Kumar has misused the cheque by giving it to the complainant who filled the cheque. The contention that the cheque has been given to Mahesh Kumar who was examined as DW 2 is not acceptable as he deposed against the petitioner. Mahesh Kumar in his cross examination has stated as “It is correct that the cheque in question had never been handed over to me by Sh. Prahlad Singh” The first contention therefore cannot be accepted. 11. The second contention raised by the petitioner to rebut the presumption is that the bank statement given by the complainant does not substantiate the case of the complainant that Rs.1 00 000 has been given by him to the accused as loan. A perusal of the judgements of two courts below CRL.REV.P. 882 2018 does not indicate that this issue was ever raised by the petitioner before the subordinate Courts. Mr. Divyakant Lahoti learned counsel for the respondent No.2 complainant states that the onus is on the petitioner to rebut the presumption by leading evidence. The fact that the cheque has been signed by the petitioner raises a presumption unless the contrary is proved that the holder of the cheque has received the cheque for the discharge in whole or in part of a debt or other liability. Mr. Divyakant Lahoti states that the petitioner has not led any evidence to rebut the same. This Court is inclined to accept the contention of Mr. Divyakant Lahoti learned counsel for the respondent No.2. 12. The submission of the petitioner is that he did not receive Rs.1 00 000 and the Bank Statement shows that only Rs.79 500 has been received. Nothing has been shown by the petitioner to substantiate that Rs.79 500 has been repaid. The cheque has been signed by the petitioner and there is nothing to show that the sum of Rs.79 500 has been repaid and it cannot be said that the cheque was not given to the respondent No.2 to repay the loan amount. The presumption under Section 139 cannot be said to have been rebutted. 13. The Notice under Section 138 NI Act was sent to C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad. In the petition it is stated that the petitioner is residing at 48A DA Block Type III Hari Nagar. The Metropolitan Magistrate found that the address given by the petitioner in his personal bond shows that the address of the petitioner is C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad to which the Notice was sent. What is interesting is that even in the vakalatnama which was filed before the Metropolitan Magistrate CRL.REV.P. 882 2018 Annexure R2 4) the address of the petitioner is mentioned as C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad. As noted by the Additional Session Judge the petitioner has received the summons and he appeared in the Court in response to summons. 14. The Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed 2007) 6 SCC 555 observed as under: “17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post can within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summonsand therefore the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act cannot obviously contend that there was no proper service of notice as required under Section 138 by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Therefore the finding of the Court below that the Notice has been sent to the correct address cannot be found fault with. 15. The Supreme Court has time and again examined the scope of Section 397 401 of Cr.P.C and the ground for exercising the revisional jurisdiction by the High Courts. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri 2 SCC 452 the Supreme Court observed as under: “5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned CRL.REV.P. 882 2018 counsel for the parties we have no hesitation to come to the conclusion that in the case in hand the High Court has jurisdiction the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order. In other words the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily therefore it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge while confirming the conviction of the respondent. In this view of the matter the impugned judgment of the High Court is wholly unsustainable in law and we accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.” Similarly in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke 2015) 3 SCC 123 the Supreme Court observed as under: “14. In the case before us the learned Magistrate went through the entire records of the case not limiting to the report filed by CRL.REV.P. 882 2018 the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. 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.” 17. There is no perversity in the orders of the Courts below warranting interference by this Court under Section 397 401 Cr.P.C. 18. Power to grant compensation has been provided under Section 357(3) Cr.P.C. Section 357(3) Cr.P.C reads as under: “The Code Of Criminal Procedure 1973 Section 357 …..(3) When a Court imposes a sentence of which fine does not form a part the Court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.” CRL.REV.P. 882 2018 The Supreme Court in Kumaran v. State of Kerala 7 SCC 471 observed as under: “24. With the Code of 1973 came an interesting change. Sub section was added to Section 357 which was an entirely new provision making it clear that the court may when passing judgment order the accused to pay by way of compensation such amount as may be specified in the order to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. This is provided that the court imposes a sentence of which fine does not form a part. Another important change was made in Section 421(1). The proviso to the said sub section was altered because the 41st Law Commission Report amendments to the old Section 386 stated after noticing the Bombay High Court judgment in Digambar case59 Bom 350 : AIR 1935 Bom 160 : 1935 Cri LJ 1034] as follows: “28.10. Fine recoverable when compensation has been ordered.—We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not in our opinion be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under Section 545 has been passed for payment of expenses or compensation out of the fine recovery of the fine should be pursued and in such cases the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to Section 386(1) should make this clear.” CRL.REV.P. 882 2018 In view of the above this Court does not find any infirmity in the amount of compensation imposed on the petitioner. The petitioner has abused the indulgence granted by this Court. On 01.11.2019 the petitioner undertook to pay the amount of compensation in 4 instalments. He has gone back on the undertaking given to this Court which amounts to contempt. The petitioner is therefore not entitled to any indulgence from this Court. 21. Accordingly the revision petition is dismissed along with the pending SUBRAMONIUM PRASAD J. applications. MARCH 08 2021 CRL.REV.P. 882 2018 

Summary: When an accused does not respond to court summons or an undertaking which was filed and not obeyed to, the court can award penalty along with the chosen form of punishment to the accused. This was held In the case of Prahald Singh vs. State &amp; Anr. [CRL.REV.P. 882/2018 &amp; CRL.M.(BAIL) 1612/2018] in the High Court of Delhi by the Hon’ble Justice Subramonium Prasad. This petition was filed to challenge the order of the Additional Judge wherein compensation of Rs. 1,75,000 along with simple imprisonment for three month was awarded to him. This judgement was made in response to a check bounce case filed against him. The facts were that the respondent had lent 1 lakh rupees to the petitioner and when the loan was repaid by cheque had ‘insufficient funds’. Initially, in the year 2019, the petitioner had sought to settle the matter by agreeing to pay the said amount to the respondent by way of four installments.  In addition to this, the petitioner also undertook to pay fine to the legal Services Authority within four weeks. However, even after an extension of 6 months, the petitioner has failed to pay the same. The contention of the petitioner is that as per Section 138, of Negotiable Instruments Act, a legal notice was to be sent to his address. Even though a notice was sent, it was not received at his address and this should be enough to take away the liability from him. The lower court believed that the petitioner failed miserably to prove its defense and he was awarded compensation. In this revision appeal, the counsel for the respondent states that Section 139 of N.I Act raises a presumption in favor of the holder and to rebut this presumption, both the contentions put forth by the petitioner are inadmissible. The first contention was that the cheque was given to another man and he had given it to respondent whereas the documents prove otherwise.  Another contention was that the bank statement of the petitioner does not display the loan of Rs. 1,00,000. However there is no evidence produced by the petitioner to lead this claim. The court highlighted the point that the petitioner claims to not receiving the notice, but at the same time had received the summons and even appeared before the court when both the summons as wel as the notice was sent to the same address.  It referred to the case of C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 where it was held “A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act…”