Delhi District Court
Cc No. 270/14 M/S Second Lucre ... vs . Resham Devi Surana. 1/21 on 23 July, 2015
IN THE COURT OF MS. SALONI SINGH, CIVIL JUDGE - 02,
PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW
DELHI.
Complaint Case no. 270/14
Unique Case ID No. 02403R0404192009
M/s. Second Lucre Partnership Co.,
18/56, East Park Area,
Karol Bagh,
New Delhi-110005.
Through Shri Raj Kumar Kashyap
...Complainant
Vs.
Mrs. Resham Devi Surana.,
Proprietor:- Reshma Products India,
Second Floor 2,West Sadar Thana Road,
Delhi-110006.
...Accused
Complaint under Section 138 of Negotiable Instruments Act, 1881
Date of institution : 08.12.2009
Date of reserving order : 03.06.2015
Date of Decision : 23.07.2015
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 1/21
Judgment:-
The present complaint has been filed under Section 138 of the Negotiable
Instruments Act, 1881 (for short, "N.I. Act"). The brief facts, as given in
the complaint, are as follows:-
1. The complainant is a registered partnership firm and the complaint
has been filed by Mr. Raj Kumar Kashyap, who has been duly
authorized, vide letter dated 03.12.2009, to commence, prosecute,
defend and continue all actions/legal proceedings in relation to the
accused on behalf of the complainant. The complainant advanced
loans to the accused for a sum of Rs. 100,00,000/- (Rupees One
Crore Only) and Rs. 1,60,00,000/- ( Rupees One Crore and Sixty
Lakh Only), vide two cheques, one bearing no. 000006 dated
14.10.2005 and the other bearing no. 000011 dated 20.12.2005,
both repayable at an interest rate of 12% per annum. In partial
repayment and/or discharge of the principal amount and the
interest accrued uptill 30.09.2009, the accused issued a cheque
bearing no. 352273, dated 30.09.2009, for a sum of Rs. 13,83,252/-
(Rupees Thirteen Lakh Eighty Three Thousand Two Hundred and
Fifty Two Only), drawn on Corporation Bank, M-41, Connaught
Circus, New Delhi (hereinafter referred to as, "cheque in
question"). The complainant bonafidely presented the said cheque
in question for encashment but the cheque was returned unpaid
with remarks, 'I/F' (insufficient funds), vide bank return memo
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 2/21
dated 08.10.2009. The complainant issued a legal notice dated
03.11.2009, through his Counsel, by way of registered post AD
and UPC, calling upon her to pay the said cheque amount within a
period of 15 days from receipt of the notice. The accused has not
paid the cheque amount within the said period. Hence, the present
complaint.
2. The complaint was filed on 08.12.2009. On cognizance of the
offence, the accused was summoned for 09.03.2010. The accused
appeared before the Court, through her Counsel, on 09.03.2010
and then appeared in person on 13.05.2010. The accused was
admitted to bail on furnishing bail bond in the sum of Rs.
1,00,000/- (Rupees One Lakh Only) with one surety of like
amount. Thereafter, notice of accusation under Section 251 of the
Code of Criminal Procedure, 1973 (for short, "CrPC") was served
upon the accused on 13.05.2010, to which she pleaded not guilty
and claimed trial. The complainant then led their evidence.
3. In order to substantiate their case, the complainant called upon and
examined Mr. Raj Kumar Kashyap, the authorized representative
of the complainant firm, as CW-1. CW-1 had tendered his
examination-in-chief, by way of an affidavit, with the following
documents:-
- Authority letter dated 03.12.2009, Exhibit CW-1/A;
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 3/21
- Correspondence dated 01.04.2009, Exhibit CW-1/B;
- Cheque in question, Exhibit CW-1/C;
- Bank intimation dated 08.10.2009, Exhibit CW-1/D;
- Legal notice dated 03.11.2009, Exhibit CW-1/E;
- Postal receipt and UPC, Exhibit CW-1/F and Exhibit CW-1/G
respectively and
- The registered post envelope returned with report, 'unclaimed',
Exhibit CW-1/H.
4. No other witness was called upon and examined by the
complainant. The complainant's evidence was closed and,
thereafter, the matter was listed for recording of statement of the
accused under Section 313 of CrPC.
5. In her statement under Section 313 of CrPC, all the incriminating
circumstances were put to the accused. The accused stated that
though the signatures on the cheque in question were hers, other
particulars in the cheque were not filled in by her. She further
denied having received the legal demand notice. Lastly, she stated
that she is not aware of the case, however, she was ready to pay the
reasonable amount to the complainant as and when she received
the amount from Jodhpur. After recording of the aforesaid
statement, the matter was then listed for defence evidence. The
accused called upon and examined only one witness, Mr Ravinder
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 4/21
Jain. No other witness was examined by the accused. The defence
evidence was closed by way of a separate statement on 06.08.2014.
The matter was then listed for final arguments.
6. Final arguments were advanced by the Learned Counsel for the
complainant and the accused, wherein they reiterated their
respective contentions/submissions.
7. The submissions made on behalf of the both the parties have been
considered and the record of the case has been thoroughly perused.
The findings of this Court are as follows:-
8. The only consideration before this Court is to determine as to
whether the accused is guilty of committing an offence under
Section 138 of the N.I. Act, for which the essential ingredients are
as follows:- (1) The cheque was drawn by a person on an account
maintained by him with a banker; (2) The cheque drawn was for
payment of money to another person from out of that account in
discharge, in whole or part, of any debt or other liability; (3) On
presentation of the cheque, it is returned by the bank unpaid, either
because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement
made with that bank; (4) The cheque was presented to the bank
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 5/21
within a period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier; (5) The payee
or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount within thirty
days of the receipt of information by him from the bank regarding
the return of the cheque as unpaid; and (6) The drawer of the
cheque fails to make the payment of the said amount of money to
the payee or, as the case may be, to the holder in due course,
within fifteen days of the receipt of said notice.
9. Firstly, it is pertinent to mention here that the accused does not
dispute that the cheque in question was issued by her and that it
bears her signatures, though it is alleged that the cheque in
question was issued in blank and the particulars therein were not
filled in by her. The admission that the cheque in question was
issued by her is the first step towards proof of the case of the
complainant. Next, the factum of dishonour of the cheque in
question has been shown with the aid of the bank intimation dated
08.10.2009, Exhibit CW-1/D, which clearly mentions that the
cheque in question was returned for reasons, "I/F".
10. The complainant contends that they sent a legal notice dated
03.11.2009, Exhibit CW-1/E, through their Counsel, to the
accused intimating the accused about the return of the cheque in
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 6/21
question by the bank unpaid and calling upon her to make payment
of the cheque amount within a period of 15 days from receipt of
the legal notice. The accused has denied receipt of any such legal
notice. The complainant on the other hand has relied upon the
receipts of the registered post AD and UPC, Exhibit CW-1/F and
Exhibit CW-1/G respectively, through which the legal notice was
sent to the accused. Further, the complainant has also placed on
record the registered post envelope, Exhibit CW-1/H, which was
received back with the endorsement, 'unclaimed'. From the above,
it has been shown that the said legal notice was sent by way of
registered post/UPC to the person at the address mentioned on the
postal receipts/envelope. Now, the question which arises is
whether the legal notice was duly served upon the accused. It is not
the case of the accused that the address mentioned on the legal
notice/postal receipts is incorrect or incomplete. In fact, DW-1
during his examination has admitted that the office of the
proprietorship concern of the accused i.e., M/s. Reshma Products
India, was at 2 West, Sadar Thana Road, Delhi-110006. DW-1
qualifies this statement of his by deposing that the proprietorship
concern of the accused had stopped running its business at the said
address. However, DW-1 has been unable to give the date/time
around which the accused stopped conducting her business from
the said premises. Further, DW-1 has stated that even though the
said premises were under lock and key, the accused continues to be
the tenant at the premises and keeps visting the premises. This
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 7/21
statement of DW-1 fortifies the stand of the complainant that the
legal notice was sent and served at the address of the accused at 2
West, Sadar Thana Road, Delhi-110006. DW-1 denies receipt of
the legal notice by the accused. He stated that around November
2009, a letter was pasted by the postal office, Kashmere Gate,
Delhi at the said premises and when DW-1 visited the post office,
he was informed that his letters had been returned. This statement
of DW-1 is contrary to the endorsement on the postal envelope,
Exhibit CW-1/H, as 'unclaimed', which goes on to show that the
post was refused. The accused has not called upon the concerned
official from the post office to contradict the documentary
evidence put forth by the complainant in this regard. Since the
accused has not been able to show that the endorsement on the
postal envelope is manipulated or false or that the legal notice for
any reason was not received by the accused, the presumption arises
that the legal notice was delivered to the addressee at the address
mentioned thereon. So, it can be presumed that the legal notice was
received by the accused. Since the accused received the legal
notice, wherein the complainant had demanded payment of the
cheque amount, it cannot be disputed that she was aware of her
liability and despite which she did not pay the cheque amount to
the complainant within the stipulated period therein of 15 days.
This now draws our attention to the legal presumptions under
Section 139 and Section 118 of the N.I. Act that, unless contrary is
proved, the holder of a cheque received the cheque of the nature
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 8/21
referred to in Section 138 of the said Act for the discharge, in
whole or in part, of any debt or other liability and the same was
made or drawn for a consideration.
11. In view of the above, the onus of proof now shifts on the accused
to rebut the said presumptions arisen in favour of the complainant
under Section 118 and Section 139 of the N.I. Act. The standard
to rebut these presumptions evidently is preponderance of
probabilities, which can be drawn on the basis of circumstances or
sufficient material on record or by leading of cogent evidence that
the cheque in question was not issued in discharge of a legally
enforceable debt or was without consideration.
12. Lets now consider the defence raised by the accused so as to rebut
the said presumptions. At the outset, it must be mentioned that the
accused has not disputed that she had taken a loan of Rs.
2,60,00,000/- (Rupees Two Crores and Sixty Lakh Only) from the
complainant @ 12 % per annum. Further, it is also not in
controversy that the accused has not repaid the principal amount to
the complainant. In her statement under Section 313 of CrPC, the
accused has expressed her willingness to repay the loan amount to
the complainant as and when she receives money from Jodhpur.
However, the accused denies her liability towards the complainant
in respect of the cheque in question. The defence of the accused is
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 9/21
that in the month of March/April of 2009, the officials of the
complainant had telephonically demanded blank and signed
cheques and letter pads and the seal of the proprietorship concern
of the accused. That the officials of the complainant had assured
the accused that they would return them after completion of the
inquiry, which had been initiated by the income tax department
against the complainant. Thereafter, despite repeated oral requests
made by the accused, the complainant did not return the said
documents. Here, it must be noted that this defence of the accused
was not put forth by the accused in her statement recorded under
Section 313 of CrPC.
13. Now, CW-1 during his examination has denied that the letter,
Mark 'X', (on the letter head of the proprietorship concern of the
accused) and the cheque in question, Exhibit CW-1/C, were
handed over by the accused in blank and signed to the officials of
the complainant firm at her residence for using it for the purposes
of any income tax inquiry being conducted by the department
against the complainant. Further, CW-1 has denied that the
particulars on the said letter and the cheque in question were filled
up by the complainant firm. CW-1 has relied upon the said letter,
Mark 'X', to show that the accused in the letter had acknowledged
her liability towards the complainant and that the cheque in
question had been handed over by the accused to the complainant
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 10/21
towards part payment/discharge of her existing legal liability
towards the complainant. The letter, Mark 'X', has been admitted
by the accused only to the extent of her signatures and the seal of
her proprietorship concern thereon. The letter, Mark 'X', mentions
that the accused had invested at a residential project at Jodhpur
Pali Road and that she would be receiving Rs. 5,50,00,000/-
(Rupees Five Crores and Fifty Lakh Only) from the Ashiana
Group. The contents of the said letter have been disputed by the
accused. DW-1 during his examination has stated that the accused
does not have any immovable properties at any place mentioned in
the letter, Mark 'X'. However, DW-1 was unable to explain the
statement of the accused made under Section 313 of CrPC,
wherein she has expressed her willing to repay the complainant
when she receives money from Jodhpur. The question which arises
next is to what extent the testimony of DW-1 can be relied upon in
proof of the defence put forth by the accused. It must be noted that
the accused has herself not stepped into the witness box and that
DW-1 is the only witness who was examined by the accused.
14.DW-1 during his examination has admitted that he did not look
after the work of the proprietorship concern of his mother/accused
and that it was being handled by her accountant, Mr. Mahender
Kumar. Also, it is not the case of the accused that DW-1 was privy
to the alleged transactions between the complainant and the
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 11/21
accused. So, the evidence of DW-1 is a weak piece of evidence.
Further, the accused has not produced any documentary evidence
to substantiate her defence that the complainant had misused the
blank and signed cheques and the letter pads given by her to them.
15. The next contention raised by the Learned Counsel for the accused
is that CW-1 has no locus standi or authority to file the present
complaint against the accused. Learned Counsel for the accused
argued that there is doubt as to the authenticity of the authority
letter, Exhibit CW-1/A, relied upon by CW-1 to show his
authority/competency to file the present complaint. On perusal, the
said authority letter seems to have been issued by one of the
partners of complainant, Ms. Rashmi Jain, who is stated to be the
authorized signatory of the complainant firm. As per the authority
letter, CW-1 has been authorized to commence, prosecute, defend
and continue all actions, suits, appeals and other legal proceedings
in relation to the accused on behalf of the complainant firm.
Admittedly, there is no power of attorney. No suggestion was put
to the witness that owing to the absence of the power of attorney,
his authority was defective or that he had no authority to represent
the complainant. The accused has been unable to show as to how
the authority of CW-1 is improper or defective. Absence of a
power of attorney would not make the authority letter issued in
favour of CW-1 as defective. It must be noted that CW-1 has not
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 12/21
produced any document to show that Ms. Rashmi Jain was one of
the partners of the complainant firm and/or that she was the
authorized signatory of the complainant firm. However, it is also
not the case of the accused that the complainant is not a
partnership firm. Further, it is also not the case of the accused that
Ms. Rashmi Jain is not a partner in the complainant firm and
therefore, the authority of CW-1 was defective. The accused has
not been able to cast any doubt on the authenticity or validity of
the authority letter, Exhibit CW-1/A, issued in favour of CW-1.
Further, with regard to the mode of proof of the authority letter, no
objection in this regard was raised by the accused at the time of
tendering of the evidence by CW-1 so it cannot be considered at
this stage. Further, CW-1 has testified on affidavit on the basis of
the records maintained by the complainant firm. So, any contention
raised by the accused that CW-1 was not personally aware of the
transactions between the accused and the complainant becomes
inconsequential. From the above, it is stated that the contention
that the CW-1 has no locus to institute the present complaint
against the accused is a very weak argument and is without any
merit. The accused has not been able to displace the evidence put
forth by the complainant.
16. Next, the contention raised by the Learned Counsel for the accused
is with regard to the authenticity of the address of the complainant
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 13/21
firm mentioned in the memorandum of parties to the complaint and
on the authority letter, Exhibit CW-1/A. Attention has been drawn
to the statement of CW-1, who has stated that he was not aware as
to whether this address of the complainant firm is correct or not.
The address of the complainant firm was stated by CW-1 to be as
E-3, South Extension, Part-I, New Delhi. Subsequently, in the
course of his examination, he was questioned as to the place from
which the complainant was running their business, to which CW-1
replied as 18/56, East Park Area, Karol Bagh, New Delhi. No
suggestion was put to CW-1 that the address of the complainant
firm as stated by him to be at E-3, South Extension, Part-I, New
Delhi was false. It is not the case of the accused that both the said
addresses of the complainant firm are either false or fabricated or
do not exist. It is also not the case of the accused that only one of
the addresses was the correct address of the complainant firm.
Further, the commercial relationship between the accused and the
complainant has not been disputed. The factum of the accused
having taken a loan of Rs. 2,60,000,000/- (Rupees Two Crores
Sixty Lakh Only) from the complainant is also not disputed. Any
doubt, which may have been created as to the actual or current
address of the complainant would not displace the presumption
arisen in favor of the accused that the cheque in question was
issued by the accused in discharge of part/whole of her legal
liability towards the complainant. Further, it does not raise any
doubt on the very existence of the complainant firm. It is also not
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 14/21
the case of the accused that the complainant firm is sham and does
not actually exist.
17. The next contention raised by the Learned Counsel for the accused
is that the legal notice, Exhibit PW-1/E, was not sent by the
complainant, which is evident from the statement of CW-1, who
was unable to give an answer as to who from the complainant firm
had authorized Mr. Anuj Aggarwal to send the legal notice to the
accused. Merely because CW-1 is unaware of the name of the
person from the complainant firm, who authorized Mr. Anuj
Aggarwal to send the legal notice, does not make the legal notice
defective or unreliable. Also, it has already been proved by the
complainant that the legal notice was duly served on the accused,
to which the accused had neither replied nor paid the cheque
amount within the given period.
18. The next contention raised by the Learned Counsel for the accused
is that the complainant is in the business of money lending and has
not produced the requisite documents to prove that the complainant
had the licence to run this business of money lending. In support
thereof, reliance has been placed on the decision of the Hon'ble
High Court of Andhra Pradesh of Hon'ble Justice C.V. Ramulu, in
M/s. Krishnan Raju Finance Hyderbad, Appellant v. Abida
Sultana, 2004 Cr.L.J 4019., wherein relying upon Section 9 (2)
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 15/21
read with Section 2 (4) of the Andhra Pradesh (Telangana Area)
Money Lenders Act, 1349, it was held that since the
complainant/appellant did not have a money lending business
licence, which is mandatory under the said Act, there was no
legally enforceable liability of the accused/respondent. Learned
Counsel for the accused drew attention of this Court to similar provisions of the Punjab Registration of Money Lender's Act, 1938, as applicable to Delhi (for short, "RML, Act"). Learned Counsel for the accused argued that the complainant had not filed any document to show that during the relevant period, when loan was advanced by the complainant to the accused, the complainant firm had a valid licence issued under the provisions of the said Act. He further submitted that in the absence of a valid licence of money lending of the complainant, the liability of the accused, if any, towards the complainant was not legally enforceable. He referred to Section 3 of the RML, Act, which reads as follows:- "
Notwithstanding anything contained in any other enactment for the time being in force, a suit by a money-lender for the recovery of a loan, or an application by a money-lender for the execution of a decree relating to a loan, shall after the commencement of this act, be dismissed, unless the money-lender-(a) at the time of the institution of the suit or presentation of the application for execution; or (b) at the time of decreeing the suit or deciding the application for execution (i) is registered; and (ii) holds a valid CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 16/21 licence, in such form and manner as may be prescribed; or (iii) holds a certificate from a Commissioner granted under section 11, specifying the loan in respect of which the suit is instituted, or the decree in respect of which the application for execution is presented; or (iv) if he is not a registered and licensed money- lender, satisfies the Court that he has applied to the Collector to be registered and licensed and that such application is pending; provided that in such a case, the suit or application shall not be finally disposed of until the application of the money-lender for registration and grant of license pending before the Collector is finally disposed of."
19. The question as to whether non-registration of the money lender or absence of a valid licence or a certificate issued under Section 11 of the said RML, Act, would debar the complainant/money lender from recovering the loan amount from the accused in proceedings under Section 138 of the N.I. Act, came up for consideration in a recent decision of the Hon'ble High Court of Delhi in Kajal v. Vikas Marwah, CRL.A. 870/2013, decided on 27.03. 2014. The findings of the Hon'ble High Court are reproduced below:- " 12. It is next contended by the learned counsel for the respondent that the appellant/complainant is a money lender since she had advanced loan not only to the respondent but also to other CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 17/21 persons, namely, Smt. Gomti Dutta and Ms. Keshvi Dutta. He has also pointed out that admittedly as many as 24 complaints under Section 138 of the Negotiable Instruments Act were filed by the appellant/complainant, besides a suit under Order 37 of the Code of Civil Procedure. In my view, even if the appellant/complainant was engaged in lending money, that would not debar her from filing a complaint under Section 138 of the Negotiable Instruments Act, if a cheque issued to her towards repayment of the loan advanced by her is dishonoured by the bank for want of funds and the drawer of the cheques fails to make payment within the prescribed time, after receipt of legal notice from the lender. Section 3 of the Punjab Registration of Money Lenders' Act, 1938, which applies to Delhi, to the extent it is relevant provides that notwithstanding anything contained in any other enactment for the time being in force, a suit by a money lender for the recovery of a loan shall, after the commencement of the Act, be dismissed unless the money lender at the time of institution of the suit is registered and holds a valid license or holds a certificate from the Commissioner granted under Section 11 of the Act, specifying the loan in respect of which the suit is instituted or if he is not already a registered or licensed money lender, he satisfies the court that he has applied for such registration or license but the application is pending. The aforesaid provision does not debar a money lender from instituting a complaint under Section 138 of the Negotiable Instruments Act, 1881, which is a remedy enforceable before a CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 18/21 criminal court, and totally independent of a civil suit. The criminal liability is incurred only in case a cheque is issued in discharge of a debt or other liability, the said cheque is dishonoured for want of funds and the borrower fails to make payment of the amount of the cheque even after receipt of a notice from the lender."
20. In light of the express provisions of Section 3 of the RML, Act and the decision of the Hon'ble High Court of Delhi in case of Kajal (supra), the bar under the section would not be applicable to criminal complaints under Section 138 of the N.I. Act. So, the contention raised by the Learned Counsel for the accused that complaint is liable to be dismissed on this count alone is not acceptable.
21. Coming back to the defence put forth by the accused, there are certain other glaring lacunae in the case of the accused, which must be pointed out. Now, assuming for the sake of arguments only that the accused had handed over blank letter pads, blank and signed cheques and the seal of her proprietorship concern to the complainant and the complainant had not returned them, it does not seem very plausible that the accused did not take any action against the complainant in this regard. It is not credible that any company/organization etc., would handover blank signed cheques, signed and sealed blank letter pads and its company seal to another CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 19/21 person with whom they had business dealings/transactions etc without any proper enquiry. Further, admittedly, the parties were engaged in business transactions involving crores of money, it is not understandable as to why the accused would take no action against the complainant. It is not even the case of the accused that the complainant was known to the accused over a fairly long period of time and that they trusted the complainant firm or that such an incident had happened on a previous occasion as well. Further, the contention that the blank cheques and letter pads and seal of the proprietorship concern of the accused were given to the complainant for purposes of income tax inquiry has not been elaborated and is very vague. What income tax inquiry did the complainant need these documents and the seal is not shown. It has been merely alleged that for an inquiry initiated by the income tax department, the accused agreed to handover these documents etc., to the complainant. The accused seems to have not done any verification or background check in this regard and merely handed them to the complainant without any proper enquiry, which is again not plausible.
22. In view of all the above findings, this Court is of the view that the accused has failed to rebut the presumptions arising under Section 139 and Section 118 of the N.I Act by way of any cogent evidence or by any such circumstances or material on record. The accused CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 20/21 has failed to discharge the onus on her to show that cheque in question was not issued in discharge of any liability or part thereof or was without consideration. The complainant on the other hand has been able to prove all the essential ingredients of Section 138 of the N.I. Act beyond all reasonable doubts against the accused with the aid of documentary and oral evidence. Accordingly, the accused is held guilty of the offence under Section 138 of the N.I. Act.
Pronounced in Open Court
today July 23, 2015 (SALONI SINGH)
Civil Judge-02/PHC/NEW DELHI
23.07.2015
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 21/21 In the Court of Ms. Saloni Singh, Civil Judge - 02, Patiala House Courts, New Delhi District, New Delhi.
CC No. 270/14
Second Lucre v Resham Devi Surana
28.07.2015 (At 2:00 pm)
Present:- AR of the complainant
Convict in person.
Order on sentence
In the present complaint case, the accused has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, "N.I. Act"), vide judgment dated 23.07.2015. The matter is pending consideration on the order on quantum of sentence and in respect thereof written submissions have been filed on behalf of both the parties.
It is submitted by the complainant that the convict is a habitual offender and has been convicted in three cases of cheque bouncing including the present one. Further, it is submitted that the complainant has suffered a substantial loss on account of dishonour of the cheques and that the convict has misappropriated the loan amount and unjustly enriched herself.
On the other hand, it is submitted by the convict that she is an old illiterate lady and is not engaged in any other criminal/civil cases except related to the commercial transactions of her proprietorship concern M/s. Reshma Product India. Further, it is submitted that she is suffering from various diseases and her hearing faculty is partially impaired. It is stated that being a lady, provisions of Section 56 of Code of Civil Procedure, 1908 will be applicable and no harsh punishment can be meted out to her.
...contd..2..
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 22/21
- 2 -
The submissions made on behalf of the parties have been considered. The finding of this Court are as follows:-
The mitigating circumstances, which have been put forth by the convict, is that she is an old ailing lady and that she is not engaged in any other civil/criminal cases. The convict is admittedly engaged in other cases involving her proprietorship concern. She has been convicted in other two cases of cheque bouncing and two-three criminal complaints are still pending against her. So, the plea that she is not engaged in other civil or criminal case cannot be a ground for leniency. Learned Counsel for the convict also submitted that the convict being a woman, the provisions of Code of Civil Procedure, 1908 will apply and no harsh punishment can be awarded. Section 143 of the N.I. Act makes it amply clear that the provisions of the Code of Criminal Procedure, 1973 (for short, "CrPC") would be applicable to the trial of the offences under Chapter XVII of the N.I. Act so the question of applicability of the provisions of Code of Civil Procedure does not arise. Further, considerations of old age and illness may have been borne in mind while awarding sentence if the convict was a first time offender or any other mitigating circumstances had been shown. Old age and illness cannot on their own be grounds for leniency while awarding sentence to the convict. Attention here is drawn to the very objective of enacting Section 138 of the N.I. Act, which is to ensure that the credibility and sanctity attached to these instruments of negotiability, i.e., cheques, commonly used in the day to day business transactions, trade and commerce does not get eroded or adversely affected. It is a penal provision and taking a very lenient view in terms of sentencing would defeat the very purpose/object of the said section. There is no ..contd..3..
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 23/21
- 3 -
additional plea raised that the convict does not have the capacity to pay and no other circumstances appear to exist from which it can be deduced that the convict does not have the capacity to pay.
Considering all the above circumstances, appearing against the convict, the convict is sentenced to undergo four months simple imprisonment and directed to pay compensation of Rs. 17,29,065/- (Rupees Seventeen Lakh Twenty Nine Thousand and Sixty Five Only) under Section 357 (3) of CrPC for the loss suffered by the complainant, and in default of payment of compensation, to undergo additional two months simple imprisonment.
(SALONI SINGH) Civil Judge-02/PHC/N.DELHI 28.07.2015 CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 24/21 In the Court of Ms. Saloni Singh, Civil Judge - 02, Patiala House Courts, New Delhi District, New Delhi.
CC No. 270/14
Second Lucre v Resham Devi Surana
28.07.2015 (At 2:15 pm)
Present:- AR of the complainant
Proxy advocate for the convict.
Convict in person.
Copy of the order on sentence dated 28.07.2015 supplied to the convict free of cost.
Advocate for the convict submitted that due to strike of lawyers, the application under Section 389 of the Code of Criminal Procedure has been prepared and signed, however, it could not be attested. Therefore, verbal submissions were made on behalf of the convict stating that the convict was on bail during the trial proceedings and did not misuse the liberty granted to her. Further, the convict did not ever try to tamper with the evidence or try to flee from justice. It is pleaded that the convict wishes to file an appeal against the judgment passed by this Court. The convict undertook that she would comply with any condition imposed by the Court while suspension of the sentence. It has been prayed that the convict be granted bail till the filing of the appeal before the proper Court.
Having considered the verbal submissions made by/on behalf of the convict, the convict is released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with surety of like amount. The surety Mr. Sandeep Sethia as security furnished his original registration certificate bearing no. DL6CM1559 of his car Skoda Rapid in respect of the present matter and CC No. 275/14. The bail bonds and surety bond are accepted till the next date of ...contd..2..
CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 25/21
- 2 -
hearing giving sufficient time to the convict to file an appeal before the Learned Appellate Court. Since, the Counsel for the convict was not available, the thumb impressions were put by the convict and the surety on their personal/surety bond in the presence of the Court.
To come up on 28.08.2015 for further proceedings.
(SALONI SINGH) Civil Judge-02/PHC/N.DELHI/28.07.2015 CC No. 270/14 M/s Second Lucre partnership vs. Resham Devi Surana. 26/21