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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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