Full Text
HIGH COURT OF DELHI
Order reserved on :07.09.2022
Order pronounced on : 09.12.2022
M/S SAFETY ENERGY SOLUTIONS PVT. LTD. & ANR. ..... Petitioners
Through: Mr. V. N. Jha and Ms. Kamakshi Gupta, Advs.
HOLDER SH. JAGMAL SINGH YADAV ..... Respondents
Through: Ms. Namita Roy, Mr. Abhijit Acharya & Ms. Gopa Biwas, Advs.
1.0 Vide this petition, the petitioner is assailing orders dated 07.12.2021 and 11.05.2022 (“impugned orders” in short) passed by the Ld. ASJ - 04, (South-West District), in Criminal Appeal No. 445/2019 under Section 148 of the Negotiable Instruments Act, 1881 (“NI Act” in short) and is seeking the following reliefs:
(a) quash the impugned orders dated 07.12.2021 and 11.05.2022 passed by the Ld. ASJ - 04, (South West District), Dwarka Courts, New Delhi in Criminal Appeal no. 44/2019 titled as M/s Safety
Energy Solutions Pvt. Ltd. & another vs. Shri Gopi Ram; and
(b) direct that the land in question which is in· possession of the respondent may be treated as sufficient security in place of deposit of an amount of Rs. 1,90,00,000/- in the form of FDR; and
(c) Pass any other· or further orders which this Hon'ble Court deems fit and proper in the circumstances of the case, in favour of the petitioner.”
2.0 Briefly put, the facts relevant for disposal of the instant petition are that: i. the respondent/complainant had filed a complaint bearing CC NO. 4990027/16 under Section 138 NI Act against the petitioners herein and Ms IOCL Officer‟s Welfare Society (“IOCL” in short) and Bijoy
Kumar Sharma, Secretary & Authorized Signatory of Ms IOCL; ii. as per the complaint, the petitioners/accused persons had purchased agricultural land in Revenue Estate of village Hassnpur, Tehsil
Kapashera, New Delhi from the complainant for a total sum of Rs.
24,33,72,800/- vide registered sale deed dated 07.11.2014. The consideration amount was paid by the accused/petitioners by way of cheques of Rs 22 lakhs (two cheques of Rs. 11 lakh each) and three cheques bearing nos. 000906, 000905 and 000904, all dated
07.11.2014 for Rs. 4,38,00,000/-, Rs. 7,00,00,000/-, and Rs.
10,50,00,000/- respectively. Except two cheques of Rs. 11 lakh each, other cheques were dishonoured and were returned by the bank with remarks “Funds insufficient” and “drawers signature differ” vide return memos dated 02.01.2015, 03.01.2015 and 06.01.2015. As the said amount remained unpaid despite notice, the respondent had filed the aforesaid complaint; iii. in the said complaint, the petitioner no. 1 herein (accused no. 2) i.e.
M/s. Safety Energy Solutions Private Limited („M/s. Safety Energy‟ in short) being the drawer of the cheques and the petitioner no. 2 herein i.e. U.P. Singh, director of petitioner no. 1 (accused no. 4) being the signatory of the cheques in question, were convicted by Ld.
M.M. (N.I.Act-07), South-West, Dwarka, Delhi vide
JUDGMENT
17.07.2019. Vide order dated 05.08.2019, the Ld. M.M. sentenced the petitioners, as under :
“Convict no. 1 M/s Safety Energy is a company which is represented by Sh.U.P. Singh (convict No. 2). It is pertinent to mention that the convict no. 2 has settled the matter before the court on 10.05.2016 for a sum of Rs.17 crores 50 lakhs. The convicts did not comply with the terms and conditions of the settlement.
Considering the totality of circumstances, convict no. 2
(Sh. U.P. Singh) is sentenced to simple imprisonment for six months and is further ordered to pay compensation to son/LR of the complainant for an amount of Rs.10.0 crores (Rs. Ten crores only) under Section 357 Cr.P.C. Convict no. 1 (M/s
Safety Energy) is directed to pay the compensation of Rs.10.0 crores to son/LR of the complainant. In default of payment of compensation, convict no. 2 (Sh. U.P. Singh) shall undergo further simple imprisonment for a period of 6 months.
It is hereby clarified that the compensation is granted after taking into account the payment of rs.4 crores 38 lakhs already made to the complainant by the convicts.” iv. aggrieved by the aforesaid judgement and order on sentence, the petitioners herein preferred an appeal before the Ld. ASJ vide
Criminal Appeal no. 445/2019 and also prayed for suspension of sentence; v. Vide order dated 25.10.2019, the Ld. Appellate Court/Learned
ASJ-02 (South-West), Dwarka Courts, suspended the sentence awarded to the petitioner observing as under:
“In view of the above and having regard to the facts and circumstances of the present case and in view of the provisions of Section 389 CrPC, the sentence awarded by the Ld. Trial Court is suspended and the appellant is granted bail during the pendency of this appeal on his furnishing a personal bond in the sum of Rs. 5,00,000/- with one surety in the like amount. Bail bond furnished and accepted.
Appellant is directed to deposit an FDR in the sum of Rs.
2crore before this court on the NDOH”;
(vi) subsequently, an application dated 19.02.2021 was filed by the petitioners seeking waiver of the condition of deposit of Rs. 2 crores /- imposed vide order dated 25.10.2019 pleading that instead of FDR for Rs. 2 crores, the petitioners be allowed to deposit a security in the form of the undivided half share in the land in question which is valued at much more than Rs. 2 crores. Said application was dismissed by Ld. ASJ vide order dated 07.12.2021 observing as under:
“The court has considered the record of the present appeal. It is seen that after effecting token compliance of the order dated
25.10.2019 through deposit of Rs. 10 lakhs by FDR on
13.12.2019, the appellant kept seeking time to deposit the remainder amount of rupees one crore ninety lakhs, only to completely withdraw even from the said commitment. Instead, the present application was moved for deposit of a security instead of the FDR.
The court finds that the appellant has wantonly abused the grace offered to him by the court in the form of extension of time for compliance of order dated 25.10.2019.
The application is thus liable to be dismissed.
The deposit of the FDR being a condition for the suspension of the sentence and grant of bail, the prayer of the appellant is also a plea for review of the order dated 25.10.2019 passed by the Ld. Predecessor of this court. This court does not possess the power to review either.
The application is dismissed.
In the interest of fairness, the appellant is granted a final opportunity for compliance of order dated 25.10.2019 by the next date of hearing.
List on 08.01.2022”
(vii) As the aforesaid order was not complied with, on 11.05.2022, Learned ASJ passed the following order:
“11.05.2022
Present: Mr. Yogondra Adari, Ld. APP for the State.
Sh. B.K. Singh, Ld. Counsel for appellant.
Ms Namita Roy, Ld. Counsel for respondent.
Exemption application filed on behalf of appellant no. 2 on the ground that he is appearing before Tiz Hazari
Court.
The application contains no details of the case in which appellant is appearing before Tiz Hazari Courts, Delhi. Further, perusal fo file shows that appellant is not appearing in the court for the last many dates.
Vide order dated 25.10.2019 sentence passed by the Ld. Trial Court was suspended and bail was granted to the appellant on the ground that he will deposit the 20% of the compensation amount. As per the Section 148 of NI Act, 20% of the compensation amount is to be deposited by the appellant within 60 days and such period can only be extended to 30 days i.e total 90 days, if sufficient cause is shown by the appellant.
More than two and half years have gone by but till date appellant has not deposited the compensation amount as directed by this court and further no sufficient reason has been shown by him for not depositing the compensation amount under Section 148 NI Act.
Considering the above mentioned facts and the conduct of the accused and that no reason has been stated in the application, therefore, application is hereby dismissed.
The bail granted to the accused vider order dated
25.10.2019 is hereby cancelled.
NBWs issued against the appellant with notice to his/her surety.
Put up for further proceedings on 04.06.2022.”
(viii) it is the above orders dated 07.12.2021 and 11.05.2022 of Learned
ASJ, which are under challenge in the present petition.
3.0 The petitioners have challenged the impugned orders pleading that vide order dated 07.12.2021 bail was granted to the petitioner no. 2 without imposing any condition. Condition of pre-deposit of Rs. 2 crores in the form of FDR was imposed for the entertainment of the petitioner‟s appeal u/s 148 of the N.I. Act. Therefore, learned ASJ could not have cancelled the petitioner no.2‟s bail on account of non deposit of Rs. 2 crores. Learned counsel also argued that by imposing an unreasonable pre condition of deposit of Rs. 2 crores for entertainment of appeal, in effect, Learned ASJ has scuttled the petitioners‟ right to appeal. Therefore, the order dated
07.12.2021 imposing the aforesaid condition of deposit of Rs. 2 crores and order dated 11.05.2022 cancelling the petitioner no. 2‟s bail are illegal, arbitrary and not sustainable.
3.1 Ld. Counsel for the petitioners also argued that there was no privity of contract between the petitioners and the respondent; the petitioner no. 1 was only an agent who assisted/facilitated in identification of the land owners and purchase of the land for M/s IOCL, in consideration of which, the petitioner was to keep only 1% consultancy fee of the total value of the land.
Acting on behalf of the IOCL, the petitioners had entered into an oral agreement for purchase of agricultural land. Merely because, the petitioner no. 2 signed the impugned cheques in absence of any debt, much less legally recoverable debt from the petitioners, the petitioners could not have been fastened with any liability under Section 138 NI Act.
4.0 Per contra, Learned counsel for the respondent sought dismissal of this petition with heavy cost submitting that it is an abuse of process of law.
Learned counsel submitted that the direction for deposit of Rs. 2 crores by the learned Trial Court is in terms of the statutory mandate under Section
148 NI Act, which requires the Appellate court to order the convict to make minimum deposit of 20 per cent of the fine or compensation awarded by the Trial Court, before the appeal is entertained. 4.1 Learned counsel for the respondent also submitted that it were the petitioners who made the payment by way of cheques in question towards purchase of the respondent‟s land. Therefore, they cannot now turn around and plead that they were simply agents. 4.2 Learned counsel for the respondent further argued that the respondent has already executed the Sale Deed in favour of IOCL and therefore, the petitioners‟ prayer that half of sold land be taken as security, is misplaced. 5.0 In rebuttal, learned Senior Counsel for the petitioners argued that this court has power to reduce the amount of deposit. She also argued that one cheque bearing no. 000906 of Rs. 4.38 crore has already been en-cashed by the respondent and the same can be taken into account while considering reduction of deposit as contemplated under Section 148(1) NI Act. In support, she placed reliance upon the judgments of Punjab and Haryana High Court dated 09.08.2022 in CRM-M No. 35351/2022 titled as “Surinder Kumar vs Jaswinder Kumar” and dated 18.07.2019 in CRM-M- 29187-2019 (O&M) and CRM-M-29188-2019 (O&M) titled as “Vivek Sahni and Another vs Kotak Mahindra Bank Ltd.” 6.0 I have duly considered the submissions made by both the sides. 7.0 At outset, let me refer to relevant provisions of law i.e., Section 138 NI Act and Section 148 NI Act before appreciating the rival contentions. Sections 138 and 148 of NI Act read as under:
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 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.”
(3)The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.” 7.[1] From bare perusal of Section 148 of N.I. Act, it is evident that while entertaining an appeal, the Appellate Court may order the appellant to deposit an amount, which shall not be less than 20 % of the compensation awarded by the trial court.
8.0 As noted above, the petitioners were convicted under Section 138 NI Act by the Learned Magistrate vide judgment dated 17.07.2019 and were sentenced vide order dated 05.08.2019 directing them inter alia, to pay compensation of Rs. 10 crores each to the son/LR of the complainant/ respondent herein and in default, the petitioner no. 2 herein to undergo simple imprisonment for a period of six months. The said judgment and order on sentence was challenged by the petitioners by way of appeal. The Appellate Court, while suspending the sentence and granting bail to the petitioner no. 2 herein, vide order dated 25.10.2019 directed the appellant/s to deposit in court, a sum of Rs. 2 Crores by way of FDR by the next date of hearing, adjourning the matter to 13.12.2019. The petitioner no. 2 did not challenge the said order and rather, deposited a part amount of Rs.10 lakhs by way of FDR on 13.12.2019 and sought time to deposit the remaining amount of Rs.1,90,00,000/-. Even subsequently, the petitioners kept seeking time for depositing the balance amount. Thus, it does not lie in the mouth of the appellants to now contend that the Ld. ASJ imposed an unreasonable condition, thus effectively scuttling the appellant‟s right to appeal. 8.[1] It is significant to note that after repeatedly seeking time for depositing the remaining amount of Rs.1,90,00,000/-, instead of depositing the said amount, subsequently after a lapse of more than one year, an application on behalf of the petitioners was filed; vide said application it was prayed that the petitioner no. 2 instead be allowed to deposit a security in the form of the undivided half share in the land in question pleading that the same is worth more than two crores. Even thereafter, Ld. ASJ, while dismissing the said application vide order dated 07.12.2021, still granted to the petitioners, one more/final opportunity in the interest of justice, to deposit the said amount and listed the matter on 08.01.2022. Admittedly, the remaining amount of Rs. 1,90,00,000/- was not deposited either by 08.01.2022 or thereafter till 11.05.2022. 8.[2] It is noted that on 11.05.2022 the petitioner no. 2, who was on bail, was not even present before the Learned ASJ. The Ld. ASJ observing that the petitioner no. 2 had not been appearing for last many dates; and his nonappearance even on that date i.e. 11.05.2022 was not satisfactorily explained; and also taking into account the conduct of the petitioners i.e. non-compliance of directions of deposit of part of compensation amount despite lapse of more than 2½ years, revoked suspension of sentence/cancelled bail granted to the petitioner no. 2. vide the impugned order dated 11.05.2022. In view of these facts, judgment of Punjab & Haryana High Court decided on 06.07.2022 in Amit Kumar (Deceased) through his LR’s mother Smt. Sushila Devi vs. State of Haryana and another, bearing CRM-M No. 4244 of 2022, is of no assistance to the petitioners.
9.0 Learned Senior Counsel for the petitioners argued that this court has power to reduce the amount of deposit; Rs.10 lakhs already deposited be treated as compliance of Section 148 N.I. Act. She further argued that admittedly, cheque of Rs. 4.38 crore has been en-cashed by the respondent/complainant; the said payment should be taken into account and requirement of any further deposit should be dispensed with. Reliance in this regard was placed on the judgments of High Court of Punjab & Haryana in Surender Kumar’s case and Vivek Sahni and Another’s case (supra). 9.[1] On the other hand, learned counsel for the respondent submitted that the directions of the Learned ASJ for deposit of Rs.[2] crores are in line with the mandate of Section 148. In support, the Ld. counsel relied upon the judgment of the Hon‟ble Supreme Court dated 08.01.2020 in Criminal Appeal Nos. 1936-1963/2019 titled as „Surender Singh Deswal’s @ Col. S.S. Deswal & Ors. vs. Virender Gandhi & Anr.’. 9.[2] It would be worthwhile to mention here that Section 148 N.I. Act contemplates deposit of such amount within 60 days which may be extended by 30 days on sufficient cause being shown. Whereas the petitioners were granted time by Ld. ASJ much beyond the period so prescribed. In Surender Singh Deswal’s case (supra) (relied upon by counsel for the respondent), the Hon‟ble Supreme Court observed that deposit of 20% of the compensation amount while entertaining appeal is a rule and only in exceptional cases for special reasons to be assigned, the appellate court may not so direct. The observations made in this regard by the Apex Court in para 9 read as under:
10.0 Learned Senior Counsel for the petitioner also argued that the possession of the land is still with the respondent. The same may be treated as sufficient security in lieu of the balance amount of Rs. 1.90 Crores in the form of FDR. Learned counsel for the respondent strongly contested the same submitting that the respondent has already executed sale deed of the property in question in favour of the IOCL and the cheques issued towards sale consideration have been dishonoured. The respondent has already filed the Suit for Cancellation of the said sale deed. 10.[1] Ld. Counsel for the respondent further argued that the petitioners paid only an amount of Rs. 10 Lakh as against the amount of Rs.[2] crores each as directed by the learned Additional Sessions Judge. They kept on seeking time for depositing the balance amount. They even stopped appearing and only after the NBWs were issued against the petitioner no. 2, they moved an application for modification of the said condition of deposit of Rs. 2 Crores. Thus, their conduct is also not above board. 10.[2] The petitioners have not disputed that the respondent has already executed the sale deed of the property in question in favour of the IOCL and in view of non-receipt of consideration/dishonour of cheque in question, the respondent has already filed the Suit for Cancellation of the said sale deed. 10.[3] In view of the above, there is hardly any merit in the proposition made by the petitioners that the land in question which is in possession of the respondent may be treated as sufficient security in place of deposit of an amount of Rs. 1,90,00,000/- in the form of FDR.
11.0 It would also not be out of place to mention here that even during the course of these proceedings, the petitioners were called upon to indicate the amount they are ready to deposit and the time within which they shall do so. The petitioners reluctantly offered to deposit a further sum of Rs. 10 lakhs for which also they sought more time.
12.0 In view the above facts and circumstances, the petitioners have failed to demonstrate any illegality or irregularity in the impugned orders dated 07.12.2021 and 11.05.2022, passed by the Ld. ASJ.
13.0 Petition is accordingly dismissed.
14.0 Pending applications, if any, stand closed.
JUDGE DECEMBER 09, 2022/g.joshi