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2018 Supreme(SC) 401
SUPREME COURT OF INDIA
DIPAK MISRA, CJI., A.M. KHANWILKAR, D.Y. CHANDRACHUD, JJ.
Ms. Priyanka Nagpal - Appellants
Versus
State (Govt. of NCT of Delhi) and Anr. - Respondents
Criminal Appeal No. 116 of 2018 (Arising out of SLP(Crl.) No. 4195 of 2017)
Decided On : 08-01-2018
For the Appellants :Seita Vaidyalingam, Advocate.
IMPORTANT POINT
While personal hardship should not be a mitigating circumstance for conviction, it is a factor for sentencing.
Headnote:Negotiable Instruments Act, 1881 – Section 138 – Appellant sentenced to fine and compensation as also imprisonment for 2 months – Appellant depositing fine and compensation – Appellant only earning member of her family with ailing and invalid father to look after – Likely to lose her job upon imprisonment – Sentence modified to a fine of 50,000 in lieu of imprisonment. (Para 6, 7)
Facts of the case:
The appellant has been convicted by the learned Metropolitan Magistrate, Karkardooma, Delhi for offence punishable under section 138 of the Negotiable Instruments Act, 1881, and sentenced her to undergo simple imprisonment for 2 months, to pay a fine of Rs.10,000/- and a compensation of Rs.6 lacs within one month and on failure thereof, to further undergo simple imprisonment for a period of 3 months.
Appellant’s appeal before the Additional Sessions Judge was dismissed.
Her criminal revision petition was withdrawn and the application for its restoration and exemption from surrendering was dismissed by the High Court.
Her petition u/s 482 CrPC assailing the orders of conviction and sentence has been dismissed.
Finding of the Court:
Courts below not considering situation of the appellant.
Result: Appeal partly allowed.
JUDGMENT :
A.M. KHANWILKAR, J.
1. This special leave petition stood dismissed for want of prosecution, in view of the conditional order dated 17th November, 2017 passed by this Court. For the reasons mentioned in the accompanying application, we restore this petition and proceed to hear the same forthwith.
2. Leave granted.
3. This appeal, by special leave, arises from an order dated 27th March, 2017 passed by the High Court of Delhi at New Delhi in Criminal M.C. No.1267/2017. The appellant has been convicted by the learned Metropolitan Magistrate, Karkardooma, Delhi for offence punishable under section 138 of the Negotiable Instruments Act, 1881, vide judgment dated 27th August, 2014 in CC No.429/2013 and vide order dated 1st September, 2014 sentenced her to undergo simple imprisonment for 2 months, to pay a fine of Rs.10,000/- and a compensation of Rs.6 lacs within one month and on failure thereof, to further undergo simple imprisonment for a period of 3 months. Assailing the judgment of conviction and order of sentence, the appellant filed an appeal before the learned Additional Sessions Judge, who in turn dismissed the appeal vide order dated 29th April, 2015. Feeling aggrieved, the appellant approached the High Court by way of criminal revision petition, being Crl. Rev. Petition No.284/2015. Initially, interim relief was granted in favour of the appellant which, however, was not extended further. The appellant finally withdrew the said revision petition on 28th April, 2016. Appellant then filed application for restoration and exemption from surrendering before the High Court, which was also dismissed on 9th May, 2016.
4. The appellant was then advised to file a petition under section 482 of the Code of Criminal Procedure, 1973 for assailing the orders of conviction and sentence. The appellant has already deposited the amount towards fine and compensation as ordered by the Trial Court. The appellant, upon being unsuccessful before the High Court in the petition under section 482 of Cr.P.C., 1973 has approached this Court by way of this special leave petition. Initially, the petition was dismissed for want of prosecution vide order dated 21st August, 2017. However, the same came to be restored on 17th November, 2017. This Court then issued notice to the respondents vide order dated 17th November, 2017 on the condition that the appellant shall deposit a sum of Rs.5 lacs before the Registry of this Court. The appellant has, however, filed an application on 14th December, 2017 praying for modification of the conditional order dated 17th November, 2017, inter alia, on the ground that the financial condition of the appellant is not good and that even after several attempts, the appellant was unable to arrange such huge amount from her close friends and relatives. For they refused to extend any further financial assistance to the appellant. Further, the appellant has already complied with the order passed by the Trial Court to deposit Rs.6 lacs towards compensation and is not in a position to pay any further amount. The appellant further submits that she has become a victim of circumstances, is just 24 years of age and is the only earning member in her family. Her father is unwell and physically incapable of doing any work. Moreover, the appellant is serving as a teacher and her monthly income is around Rs.4,000/-. She submits that if she is compelled to undergo the sentence period of 2 months, she would lose her job and as such her entire family would suffer penury situation.
5. After considering the submissions and going through the record of the case, we are of the opinion that it is not possible to interfere with the concurrent finding of fact regarding finding of guilt recorded against the appellant. Thus, no interference is warranted against the order of conviction. The only question that must receive our attention is about the sentence awarded to the appellant.
6. Having regard to the fact that the appellant has already deposited
