Credential Leasing & Credits Ltd. vs Shruti Investments and Others

Vipin Sanghi, J.

Crl. M.A. No. 11070/2015

It is not considered necessary to call for the Trial Court Record. The application stands disposed of.

Crl. M.A. Nos. 11068-69/2015

These applications have been filed by the respondent/convict.

By the first application being Crl. M.A. No. 11068/2015, the applicant claims that he had not granted consent to the hearing of the appeal when arguments were addressed and judgment reserved. The submission is that the judgment had been reserved only on the leave petition, i.e. to consider whether, or not, to grant leave to appeal to the petitioner/appellant.

The next submission of learned counsel for the applicant is that the impugned judgment dated 26.05.2014 was premised only on the aspect that the cheque in question was a security cheque. He submits that the impugned judgment was not on merits of the case and, by deciding the entire case on merits, this Court had deprived the applicant of a right of appeal. It is submitted that even if this Court were of the view that the complaint was maintainable in respect of the cheque in question, despite its being a security cheque, this Court should have remanded back the matter to the learned Magistrate to decide the complaint on merits.

By the second application being Crl. M.A. No. 11069/2015, the applicant seeks stay of the judgment of this Court dated 29.06.2015 during the pendency of the first application being Crl. M.A. No. 11068/2015.

On 19.02.2015, when the matter was listed before this Court, after detailed arguments by counsel for both the parties, the orders were reserved. The submission that arguments were addressed only on the aspect of grant of leave, is only to be stated to be rejected. The issue whether, or not, to grant leave, is not an issue which would either require detailed submissions, or require this Court to reserve orders, Counsel for the parties had consciously addressed arguments on merit, as are reflected in the judgment dated 29.06.2015 itself.

The judgment of the Trial Court had been rendered after a full-fledged trial, wherein the respondent applicant had examined his witnesses, including himself as DW-2. Despite their being sufficient evidence against the respondent applicant, the learned Magistrate had acquitted the respondent on the premise that the cheque in question was a security cheque. In the judgment of this Court dated 29.06.2015, the said premise has been rejected. Therefore, the applicant/respondent cannot be heard to say that his entire defence has not been considered either by the Trial Court, or by this Court.

Accordingly, both the applications are rejected.

Crl. A. 729/2015

I have heard learned counsel on the aspect of sentence.

Learned counsel for the convict submits that the convict has already undergone one by-pass surgery and stents have been installed. He further submits that the convict has one unmarried daughter, who is 28 years old. The son of the convict is a student. The convict submits that he is doing some menial jobs.

On the other hand, the submission of learned counsel for the appellant is that the cheque in question was issued and became payable in the year 1996. Nearly 20 years have since passed. The appellant has remained out of pocket all through, since he had to make payment to the stock exchange in respect of the shares purchased by the convict.

Learned counsel further submits that the complaint had been dismissed earlier and litigation travelled up to the Supreme Court before it was restored in the year 2007.

The cheque in question was dated 29.06.1996 for Rs. 14 Lakhs, which was given as security by the convict to the appellant. On the basis of the said security cheque, the convict undertook sale & purchase of shares, and, ultimately, incurred a liability in excess of Rs. 14 Lakhs. The convict has enjoyed the fruits of the share transactions undertaken by him. It is not disclosed as to what he has done with the shares that he purchased through the appellant, for which he ran up a liability in excess of Rs. 14 Lakhs. Even if a nominal rate of return were to be applied on the amount of Rs. 14 Lakhs, the same would far exceed the maximum fine which could be imposed under Section 138 of the Negotiable Instruments Act, i.e. twice the cheque amount, considering that the cheque was issued and payable nearly two decades ago. Consequently, the convict is subjected to fine of Rs. 28 Lakhs. On the failure of the convict to deposit the said amount within three months, he shall stand punished with Simple Imprisonment for a period of four months. Out of the fine that the convict deposits, the appellant shall be entitled to compensation to the tune of Rs. 27 Lakhs.