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 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
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 thatthe sentence of two years’ imprisonment given to the appellant is
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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