Ashok Chachra vs The State

Suresh Kait, J.

CRL. M.A. 8701/2011 (Exemption)

Allowed subject to all just exceptions.

CRL. M.C. 2387/2011

Admit. Issue notice. Ms. Rajdipa Behura, learned APP for State accepts notice on behalf of State.

It is submitted by learned Counsel for the Petitioner that a complaint u/s 138 of the Negotiable Instruments act was filed in respect of dishonor of cheque for a sum of Rs. .8,21,600/- against the accused Bharat Bhushan. The accused Bharat Bhushan was convicted by learned Metropolitan Magistrate vide order dated 24.11.2004 to undergo SI for 1 year and fine of Rs. 5000/- for the offence punishable u/s 138 of Negotiable Instruments Act, 1881.

Vide order dated 28.02,2011 in Criminal Revision No. 88/2010, the sentence was modified and the substantive sentence of one year awarded by the learned Trial court was done away with and the fine was enhanced to Rs. 16,40,000/-.

Further, it was directed that the Respondent shall deposit a fine of Rs. 16,40,000/- and the entire fine amount shall be given to the revisionist/Sh. Ashok Kumar Chachra as compensation. In default of payment of fine, Respondent shall undergo simple imprisonment for one year.

Respondent submitted before the Revisional Court that he may be allowed to pay fine/compensation in four installments for Rs. 4,10,000/- each.

Accordingly, it was further directed that the fine amount may be given by the Respondent directly to the revisionist and one week''s time was granted to Respondent to pay the first installment of compensation before the learned Trial court i.e on 07.03.2011.

Thereafter, Bharat Bhushan filed a Revision Petition (Crl.) No. 126/2011 before this Court, wherein the court granted stay on the operation of the impugned order dated 28.02.2001 passed by the learned Additional Sessions Judge till 19.05.2011 subject to the deposit of Rs. 10 Lacs with the Registrar General of this Court within four weeks.

Vide order dated 05.07.2011 in Crl. Rev. 126/2011 filed by Bharat Bhushan, the Crl. M.B. 509/2011 was dismissed and the order passed in the said Crl. M.B. for staying the operation of impugned order dated 28.02.2001 passed by the learned Additional Sessions Judge was vacated. A Dasti copy of the order was supplied to the parties.

On 06.07.2011, an application u/s 424 of Code of Criminal Procedure and another application u/s 421 Code of Criminal Procedure for sentence of imprisonment in default to be carried out and for issuance of warrants respectively were moved before the concerned Metropolitan Magistrate along with copy of the order passed in Crl. Rev. 126/2011 dated 28.02.2001 passed by the learned Additional Sessions Judge.

Learned Metropolitan Magistrate vide order dated 06.07.2011 directed a court notice to be issued to the convict Bharat Bhushan, returnable for 29.07.2011. The order is reproduced hereunder:

06.07.2011

Present: Sh. Sushil Kaushik Ld. Counsel for the complainant.

None for the accused.

Vakalatnama filed. It be taken o record. The accused was convicted by this Court vide order dated 22.11.2004. Against the said order of conviction accused moved the Sessions Court by way of appeal, which was dismissed vide order dated 28.02.2011 of the learned ASJ and dismissing the same the Sessions Court was pleased to modify the order on sentence from that of fine of Rs. 5,000/- and one year imprisonment to fine of Rs. 16,40,000/- and one year simple imprisonment, in case of default in payment of said fine.

The order of the Sessions court was challenged by the accused by moving a revision petition before the Hon''ble High Court of Delhi.

While admitting the said revision petition (Crl. Rev. P. 126/2011) was pleased to stay the operation of the order dated 28.02.2011 passed by Sh. Vinay Kumar Khanna, Ld. ASJ till the next date of hearing i.e 19.05.2011, this stay was conditional i.e it was subject to the Petitioner/accused depositing Rs. 10,00,000/- with the Registrar general of the High Court within four weeks from 19.05.2011.

The said stay was vacated by the Hon''ble High Court vide its order dated 05.07.2011.

Copy of the said order has been placed on record by the ld. Counsel for the complainant.

Issue court notice to the convict for 29.07.2011.

Court notice be given dasti.

(NIPUN AWASTHI)

MM(01) South, Negotiable Instruments Act

New Delhi 06.07.2011.

The learned Counsel for the applicant/Sh. Ashok Kumar Chachra further submits that the trial court has issued court notice to the convict instead of issuing non bailable warrants against the convicts.

In support of his contentions, the learned Counsel for the Petitioner has relied upon the judgment of Allahabad High court decided on 20.04.1960 in a case of Trilok Chand Vs. C.N. Srivastava and Others, wherein in para 2, the Court has observed as follows:

There is No. force in the applicant''s contention that Sri C.N. Srivastava had No. jurisdiction to pass the order of levy of fine and that he could not do so without issuing a notice to the applicant. Sri. C.N. Srivastava only executed the order passed by his predecessor, Sri K.C. Sinha. The order of Sri K.C. Sinha was bound to be executed and since Sri C.N. Srivastava took up all the work left by him he was competent to execute the order. No. question of any hearing or of issuing a notice to the applicant arises because there is No. law that requires that a notice should be given before a warrant of levy of fine is issued against ''the person'' sentenced to fine. The applicant was bound to pay the fine at the rate of Rs. 100/- per day during which the offence continued. If he disputed that the offence continued or that it was continued for so many days he "could object to the attachment of his property but the attachment does not become illegal'' because he was not heard before the warrant was issued.

I find force in the submissions made by learned Counsel for the Petitioner and in the interest of justice, I direct the trial court to ensure the arrest of convict/Sh. Bharat Bhushan in accordance with law.

Crl. M.C. 2387/2011 is disposed of accordingly.

Dasti under the signatures of Court Master.