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TMI Blog2021 (3) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... months. 2. On 01.11.2019, the counsel for the petitioner on instructions from the petitioner, who was present in person, submitted that the petitioner is ready and willing to settle the disputes with respondent No.2. It was agreed that the petitioner will make the payment of Rs. 1,70,000/- to respondent No.2 in four monthly instalments. The first three instalments of Rs. 50,000/- each were to be paid on or before 01.12.2019, 01.01.2020 and 01.02.2020 respectively. The fourth and final instalment of Rs. 20,000/- was to be paid on or before 01.03.2020. The petitioner also undertook to deposit fine of Rs. 5,000/- with the Delhi High Court Legal Services Committee within four weeks. The petitioner further undertook to deposit 15% of the compensation amount with the Delhi High Court Legal Services Committee in view of the decision of Supreme Court in Damodar S.Prabhu vs. Saved Babalal H., (2010) 5 SCC 663 within four weeks thereafter. The said amount has not been paid. 3. On 07.02.2020 the counsel for the petitioner submitted that the petitioner is willing to pay the amount, provided some more time is given to him and prayed that six months time be granted and he also stated that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque in question for the first time in court. g) The Metropolitan Magistrate also found that the Notice was sent to the address C-13, Ground Floor, DLF Colony, Dilshad Extension-2, Shahibabad, Ghaziabad and was returned back with endorsement "house found lock after repeated visits". The Metropolitan Magistrate found that the accused who was examined as DW-1 never deposed that the said address was not in his possession. The Metropolitan Magistrate noted that in his cross-examination the petitioner/accused has stated that he had shifted to Hari Nagar in 2012, but interestingly in the personal bond furnished by the petitioner, after receiving the summons on 20.02.2014, he has mentioned his address as C-13, Ground Floor, DLF Colony, Dilshad Extension-2, Shahibabad, Ghaziabad, U.P., to which address the notice was sent. The Metropolitan Magistrate therefore held that the legal notice had been duly served on the accused/petitioner herein. The petitioner was therefore held guilty of an offence under Section 138 N.I. Act. h) By a separate order dated 17.10.2017, the Metropolitan Magistrate sentenced the petitioner to pay a compensation of Rs. 1,75,000/- in default the petitioner was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held that the petitioner is guilty for an offence under Section 138 NI Act. Mr. Divyakant Lahoti, learned counsel for the respondent No.2 has taken this Court through various documents to substantiate that the address to which the Notice was sent was the address of the petitioner. He would also states that the cheque bearing No. 795471 dated 25.07.2013, has been signed by the petitioner, the cheque is in the name of the complainant and is for a sum of Rs. 1,00,000/-. Mr. Divyakant Lahoti, learned counsel for the respondent No.2 submits that the respondent No.2 has filed his Bank Statement to substantiate his contention that a sum of Rs. 1,00,000/- had been given to the accused. In the Bank Statement there are three transactions which are as follows: i. The first transaction dated 27.12.2010, is a cheque withdrawal for an amount of Rs. 49,500/-. ii. The second transaction dated 28.01.2011, is a cheque withdrawal for an amount of Rs. 30,000/-. iii. The third transaction dated 18.04.2011, is a cheque transaction in favour of Prahalad for an amount of Rs. 50,000/-. Mr. Divyakant Lahoti, learned counsel for the respondent No.2 states that out of the sum of Rs. 49,500/- which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Lahoti, learned counsel for the respondent No.2. 12. The submission of the petitioner is that he did not receive Rs. 1,00,000/- and the Bank Statement shows that only Rs. 79,500/- has been received. Nothing has been shown by the petitioner to substantiate that Rs. 79,500/- has been repaid. The cheque has been signed by the petitioner and there is nothing to show that the sum of Rs. 79,500/- has been repaid and it cannot be said that the cheque was not given to the respondent No.2 to repay the loan amount. The presumption under Section 139 cannot be said to have been rebutted. 13. The Notice under Section 138 NI Act was sent to C-13, Ground Floor, DLF Colony, Dilshad Garden, Extension-2, Sahibabad, Ghaziabad. In the petition it is stated that the petitioner is residing at 48A, DA-Block, Type - III, Hari Nagar. The Metropolitan Magistrate found that the address given by the petitioner in his personal bond shows that the address of the petitioner is C-13, Ground Floor, DLF Colony, Dilshad Garden, Extension-2, Sahibabad, Ghaziabad to which the Notice was sent. What is interesting is that even in the vakalatnama which was filed before the Metropolitan Magistrate (Annexure-R2/4) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "24. With the Code of 1973 came an interesting change. Sub-section (3) was added to Section 357, which was an entirely new provision making it clear that the court may, when passing judgment, order the accused to pay by way of compensation such amount as may be specified in the order to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. This is provided that the court imposes a sentence of which fine does not form a part. Another important change was made in Section 421(1). The proviso to the said sub-section was altered because the 41st Law Commission Report, in recommending amendments to the old Section 386 stated, after noticing the Bombay High Court judgment in Digambar case [Digambar Kashinath Bhawarthi v. Emperor, 1934 SCC OnLine Bom 56 : ILR (1935) 59 Bom 350 : AIR 1935 Bom 160 : 1935 Cri LJ 1034] as follows: "28.10. Fine should be recoverable when compensation has been ordered.-We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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