CRL.REV.P./745/2015 of SHREE SAINATH WIRES PVT. LTS. & ANR Vs PEC LIMITED & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of hearing & Order: 17[th]March 2016

+CRL.REV.P. 745/2015SHREE SAINATH WIRES PVT. LTS. & ANR

..... Petitioner

Through:Mr. Manoj Ohri, Senior Advocatewith Ms. Heena Sharma, Mr. ManasGaur, Mr. Kuldeep Singh, Advocates

versus

PEC LIMITED & ANR

..... RespondentThrough:Mr. Sanjeev Narula, Mr. Ajay Kalra,Ms. Dipika, Advocates for respondentNo. 1.Mr. Izhar Ahmad, Additional PublicProsecutor for the State

CORAM:HON'BLE MR. JUSTICE P.S.TEJIO R R%17.03.2016P.S. TEJI, J. (ORAL)

Crl.M.A.No.3904/2016(Disposalofapplicationseekingsuspension of sentence) & Crl. M.A. No.3903/2016 (Disposal ofapplication seeking interim bail)

By these two applications, the petitioners seeks disposal of theirapplications for suspension of sentence and for seeking interim bail onmedical grounds during pendency of the revision petition.

Since this Court has been inclined to hear the application of thepetitioners seeking suspension of sentence during pendency of therevision petition as well as application for seeking interim bail duringpendency of the revision petition, therefore, the present applicationsare disposed of.

Crl. M.(Bail) No.8179/2015 (suspension of sentence)

By this application filed under Section 397(1) of Cr. P.C., thepetitioner seeks suspension of sentence passed by learned ACMM,Delhi for the offence punishable under Section 138/141 of NegotiableInstruments Act, 1881, which was upheld by learned AdditionalSession Judge vide order dated 03.11.2015.

In this revision petition, the petitioners have challenged theorder passed in criminal complaint being CC No.894/2011. Apartfrom the present complaint, there were 17 other criminal complaintsagainst the petitioners being Nos. 902/2011 , 903/2011, 906/2011,898/2011,157/2013,905/2011,912/2011,910/2011,911/2011,901/2011, 909/2011, 899/2011, 900/2011,907/2011, 897/2011,908/2011, 904/2011 filed by respondents against the petitioners underSection138/141ofNegotiableInstrumentsAct,1881.Afterconsidering the evidence on record, the Trial Court vide order dated30.05.2014 held the petitioners guilty for the offence punishable underSection 138/141 of Negotiable Instruments Act, 1881 and sentencedpetitioner No.2 to undergo simple imprisonment for period of oneyear with fine of Rs.51 lacs in each of the complaints. Petitioner No.2

Crl. Rev. P. No.745.2015

Page 2 of 10

was further directed to undergo simple imprisonment for period ofsix months in default of payment of fine of Rs.51 lacs within periodof 30 days in each case.

Against the aforesaid order passed by the learned MetropolitanMagistrate, the petitioners had preferred separate appeals before thelearned Additional Session Judge, Patiala House Courts, New Delhi.The said appeals filed by the petitioners were dismissed by commonorder dated 03.11.2015 while upholding the order passed by learnedMetropolitan Magistrate. The petitioner No.2 was taken into custodyon the same day, i.e., 3[rd]November 2015.

Aggrieved by the aforesaid orders passed by the learnedMetropolitan Magistrate as well learned Additional Session Judge, thepetitioners have preferred the present revision petition challenging theorder of the conviction and awarding of the sentence to undergosimple imprisonment for period of one year with fine of Rs.51 lacspayable as compensation to the complainant within period of 30days.

Mr. Manoj Ohri, learned Senior Counsel for the petitioners hasadvanced his argument on the present application, i.e.,seekingsuspension of sentence and on the question of quantum of sentence.

Apart from the above, learned Senior Counsel for the petitionersfurther argued on merits of the case that all the cheques were given forthe purposes of security and the judgments relied upon by theappellate Court while deciding the appeals, were not applicable to the

Crl. Rev. P. No.745.2015Page 3 of 10

facts of the present case. In support of his submission, learned SeniorCounsel for the petitioners relied upon judgment in Collage Culture &Ors vs. Apparel Export Promotion Council, 2007 (99) DRJ 251; andIcon Buildcon Pvt. Ltd. vs. Aggarwal Developers Pvt. Ltd. & Ors.,2014 (143) DRJ 136.

The rival contention of Mr. Sanjeev Narula, learned counsel forrespondent No. 1 is that the present matter is listed today forconsidering the applications of the petitioners for seeking suspensionof sentence during pendency of the main petition and the merits of thecase cannot be the subject matter for the purpose of hearing theapplications. Learned counsel for the respondent No.1 contended thatwhether the cheques in questions were given for the purpose ofsecurity or not, is matter for appreciation on the evidence and boththe Courts below have given their concurrent findings on the facts ofthe case, which cannot be looked into at this stage.

I have heard the submissions made by learned Senior Counselfor the petitioners as well as learned counsel for the respondent No.1at length.

After considering the contents of the application for suspensionof sentence and the arguments advanced by both the sides, this Courtobserves that the petitioner No.2 /accused has been convicted in 17other cases apart from the present case and has been awarded simpleimprisonment for term of one year with fine of Rs.51 lacs in eachcase and in default of payment of fine of Rs.51 lacs in each case, the

Crl. Rev. P. No.745.2015

petitioner No.2 /accused is directed to undergo simple imprisonmentfor period of six months, in each case. The Court also observed thatthe petitioner No.2 has sought directions from this Court in respect ofthe sentences awarded in all the 18 separate cases to run concurrently.

This Court is of the considered opinion that even if thearguments advanced be learned Senior Counsel for the petitioners ispresumed to be correct for the sake of argument, it may only be withregard to the substantive sentence of imprisonment of one year in eachcase, which may be treated to be run concurrently. But the questionremains that the sentence running concurrently with regard to thesentence imposed upon the petitioner No.2 in default of payment offine of Rs.51 lacs in each case, which is six months in each case, willbe the main subject matter of the case. Even if the same is calculated,it shall go up to 9 years simple imprisonment, as it is the admitted factthat the petitioner No.2 has not deposited fine/ paid the compensationof Rs.51 lacs within period of 30 days, as awarded by the Courtsbelow. Therefore, this Court is of the opinion that the facts of thepresent case and the question as to whether the sentence imposed uponthe petitioner No.2 in all the 18 cases shall run concurrently or not,need not to be touched at this stage, which shall of course be thesubject matter for determination at the time of final disposal of therevision petition.

The fact which need to be considered at this stage is thatwhether the petitioner No.2 has been able to make out prima facie

case for suspension of sentence during the pendency of the mainpetition.

Learned Senior Counsel for the petitioners contended that thepetitioner No.2 has already undergone period of four and halfmonths out of the total substantive sentence of one year as awarded tohim and since the hearing of the main petition may take time,therefore, the sentence of the petitioner No.2 may be suspended duringpendency of the revision petition. It is further contended on behalf ofthe petitioner No.2 that in case of suspension of substantive sentenceof one year as awarded by the Court below, out of which the period offour and half months has already undergone by the petitioner No.2,shall tantamount to accept the plea of the petitioner No.2 to the effectthat the sentence of fine imposed upon the petitioner No.2 to pay fineof Rs.51 lacs in each case within 30 days, as well as the sentence indefault of payment of fine, in each case, shall also run concurrently, atthis stage.

This Court further observes that the petitioner No.2 hasdefaulted in payment of fine of Rs.51 lacs within period of 30 daysin all the 18 cases, meaning thereby, the petitioner No.2 shall have toundergo at least 9 years of simple imprisonment on account of hisdefault in payment of fine as imposed by the Court below. In any case,he shall have to pay the amount of fine @ Rs.51 lacs in 18 cases, i.e.,9,18,00,000 (Rupees nine crore eighteen lacs only).

After considering the aforesaid facts and circumstances of thecase, this Court is of the considered opinion that the petitioner No.2 isnot entitled to suspension of substantive sentence, as imposed by theCourts below, at this stage. However, interest of justice would besecured if the final hearing of revision petition is expedited.

Accordingly, the application seeking suspension of sentencefiled by the petitioners is hereby dismissed.

Crl. M.(Bail) No. 8180/2015 (interim bail on medical grounds)

By this application, petitioner seeks interim bail on the medicalgrounds. Learned Senior Counsel for the petitioners argued that thepetitioner No.2 has been awarded the imprisonment for period of oneyear and he has already undergone the period of four and half monthsand apart from the same, his condition in jail is being deteriorated. Themedical record in respect of treatment of the petitioner No.2 has alsobeen placed on record for the period 2013 and 2014 and it is informedthat he is now being treated by the Jail Authorities.

This Court has also gone through the contents of the applicationfiled by the petitioners for seeking interim bail on debilitating medicalgrounds. It is contended that the petitioner No.2 is an old, aged andinfirm person and is in precarious condition of health due to cervicalencolysingspondolysis,acutediabetes,HighBloodPressure,Digestive issues due to removal of gall bladder, open heart by-passsurgery (CABG), and HLB 27 positive (acute arthritis) due to whichthe petitioner No.2 is having great difficulty in even getting up or

Crl. Rev. P. No.745.2015Page 7 of 10

laying down on floor and has to continually sit up, has very high BPand blood sugar and is undergoing great mental depression and iscomplaining of mild angina pain while in jail.

report of Medical Officer I/C, Central Jail No.5 is on record,in which it is submitted that the petitioner No.2 is under regular followup by medicine S/R and all prescribed medicines are given from CJ-05dispensary. The petitioner No.2 was also sent to DDU Hospital inOrtho Department for further management where ortho specialistadvised certain medications and hot water fomentation.

It is an admitted case of the petitioner No.2 that the petitionerNo.2 is behind bars for four and half months and is being treated bythe Jail Authorities. There is no averment in the application that thepetitioner No.2 is not being treated properly in jail or any specifictreatment is declined to the petitioner No.2.

In the facts and circumstances of the present case, this Court isnot inclined to grant interim bail to the petitioner No.2, at this stage.However, considering the medical condition of the petitioner No.2 andin the interest of justice, this Court is of the opinion that the purpose ofpetitioner No.2 would be served if the Jail Superintendent is directedto ensure the appropriate and proper treatment of the petitioner No.2.It is ordered accordingly. Petitioner No.2 shall also be at liberty to takethe treatment from doctor of his own choice and after taking priorappointment of the doctor of his choice, the Jail Superintendant shall

ensure that the petitioner No.2 is taken to such doctor in custody, incivil cloths, for his treatment.

Withaforesaiddirections,thepresentapplicationstandsdisposed of.

Crl. M.A. No. 3905/2016 (for directions)

By this application filed under Section 427 of Cr. P.C., thepetitioner seeks directions with regard to the sentence imposed uponpetitioner No.2 in 18 separate criminal complaints to undergo simpleimprisonment for period of one year, in each case, may be ordered torun concurrently.

The argument advanced by the learned Senior Counsel for thepetitioners is that though the petitioner No.2 has been convicted in 18separate cases but all the orders sentencing him to undergo simpleimprisonment for term of one year be directed to run concurrently.In support of his submission, learned Senior Counsel for thepetitioners relied upon the judgment in Pankaj Kumar vs. SunilKumar Vaid, 2011 (125) DRJ 343.

I have heard the submissions made by learned Senior Counselfor the petitioners and gone through the contents of the presentapplication and this Court is of the opinion that the petitioner No.2may raise his contentions with regard to the present application, at thetime of final hearing of the revision petition.

With aforesaid directions, the application stands disposed of.

Crl. Rev. P. No.745.2015Page 9 of 10

Crl. Rev. P. No. 745/2015

The facts and circumstances of the case culminated into notentitling the petitioner for suspension of sentence as discussed above,at this stage. However, the interest of justice would be secured, if thefinal hearing of the matter is expedited.

In view of the discussions made above, the case is ordered to belisted for final hearing on 5[th]May 2016, to secure the ends of justice.

List all other 17 revision petitions and the present revisionpetition for final disposal on 5[th]May 2016.

copy of this order be given dasti.

MARCH 17, 2016pkb

P.S.TEJI, J