NIHALI DEVI Vs STATE GOVT. OF NCT OF DELHI
Bench: AFTAB ALAM,H.L. GOKHALE
Case number: Crl.A. No.-001100-001100 / 2012
Diary number: 23607 / 2011
Advocates: R. C. KAUSHIK Vs
SUDHIR NAAGAR
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1100 OF 2012 (Arising out of SLP (Crl.) No.8941 of 2011)
NIHALI DEVI .....APPELLANT(S)
VERSUS
STATE GOVT. OF NCT OF DELHI & ANR. .....RESPONDENT(S)
JUDGMENT
Aftab Alam, J .
1. Delay condoned.
2. Leave granted.
3. The appellant is convicted under Section 138 of the
Negotiable Instruments Act, 1881. She was sentenced by the trial court to
two years’ simple imprisonment; in addition she was also directed to pay a
sum of Rs.1,20,000/- to the complainant as compensation. In appeal, the
conviction and sentence was maintained and her revision before the High
Court was dismissed as barred by limitation by 565 days.
4. According to the complainant, in August, 2003, he had
advanced a loan of Rs.1,00,000/- to the appellant for the repayment of
which she gave him two cheques dated March 25 and April 1, 2005 for
Rs.40,000/- each. Both the cheques, on presentation to the bank, were
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dishonoured for want of sufficient funds. When the appellant failed to make
payment after due notice, he filed a complaint (CC No.8382/2005) in the
Court of Metropolitan Magistrate, New Delhi. The appellant was put on trial
and by judgment and order dated November 14, 2007, she was convicted
and sentenced, as aforesaid.
5. She filed an appeal (CA no.24/2007) before Sessions
Court. During the pendency of the appeal the appellant, in small
installments, deposited a sum of Rs.49,000/- towards the amount of
compensation fixed by the trial court. The appeal was, however, dismissed
by the judgment and order dated November 15, 2008, passed by the
Additional Sessions Judge-02.
6. Against the appellate order, the appellant filed a
revision after a delay of 565 days which, as noted above, was dismissed on
grounds of limitation.
7. In the facts of this case, we are of the view that the
High Court ought to have condoned the delay in filing the revision and
examined her case on merits. We should have, therefore, set aside the
High Court order and remitted the case for disposal on merits, in
accordance with law. We, however, refrain from taking that course as that
would only prolong the suffering of the parties and add one more case to
the docket of the High Court. We, accordingly, proceed to dispose of the
matter.
8. It may be noted here that learned counsel for the
appellant confined his submissions only to the question of sentence. In this
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regard, the relevant facts are that the appellant is a woman and is over 66
years of age. Before the trial court she actually admitted her liability to pay
the amounts of the two cheques. It, however, appears that it was on
account of her highly strained financial condition that she was unable to
make the payment. Her two sons had died earlier. During the pendency of
the appeal her daughter who was suffering from cancer was undergoing
treatment and understandably the appellant was all through by her bed
side. The daughter finally passed away on April 15, 2011. Even in those
circumstances she was trying to pay the compensation amount to the
complainant, even though in small installments. In that position, it is not
difficult to imagine that she was unable to follow the proceedings in the
appeal and was not even aware when it was finally dismissed. That was
one of the reasons for the delay in filing the revision before the High Court
which the High Court, unfortunately, did not take into account.
9. At the time of filing the special leave petition she had
deposited a sum of Rs.50,000/- out of the compensation amount of
Rs.1,20,000/-. Hence, this Court directed her to deposit the remaining
amount of Rs.70,000/- as the condition to allow her prayer for exemption
from surrendering. She filed proof of deposit of the remaining amount on
October 18, 2011, and the full amount of compensation i.e. Rs.1,20,000/-
now remains deposited in the court below which the complainant -
respondent No.2 is free to withdraw.
10. In the aforesaid facts and circumstances, it appears to
us that the sentence of two years’ imprisonment given to the appellant is
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unduly harsh. It is clear to us that she is a victim of tragic circumstances
and she never intended not to repay the amounts for which she issued the
two cheques in favour of respondent No.2. We, accordingly, set aside the
sentence of imprisonment awarded to the appellant and substitute it by a
fine of Rs.25,000/- which, she must pay within four months from today,
failing which she will have to undergo simple imprisonment for 15 days.
Out of the amount of fine, if deposited, Rs.20,000/- will be paid to the
complainant, which he would be free to withdraw.
11. In the result, the appeal is disposed of with the
aforesaid modification and reduction in the appellant’s sentence.
………………………….J. (Aftab Alam)
………………………….J. (H.L. Gokhale)
New Delhi; July 25, 2012.
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