Delhi District Court
Jafar Ali vs (I) The State on 19 May, 2015
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CASE ID No. 02406R0071412014 & 02406R0071402014
CA NO. 5/14 & 17/14
Jafar Ali
S/o Late Sh. Nazeer Ahmad
R/o House No. K50, Batla House,
Jamia Nagar, Okhla, New Delhi110025
.......................Appellant
Versus
(i) The State
(ii) Dr. Abdul Quaiyoom
R/o House No. I41, 3rd Floor,
Abul Fazal Enclave, PartI, Jamia Nagar,
Okhla, New Delhi110025
...........................Respondents
CA NO. 5/14 & 17/14 Page No. 1/11
DATE OF INSTITUTION:25.03.2014 DATE OF RESERVING ORDER:15.05.2015 DATE OF PRONOUNCEMENT: 19.05.2015 Vide this Order, I shall dispose off two separate Appeals bearing CA NO. 5/14 & 17/14 preferred by the appellant assailing the common Judgement and two orders on sentence dated 26.02.2014 passed by Sh. Gagandeep Jindal, Ld. MM wherein the Ld. MM convicted the appellant in two complaints U/s 138 NI Act bearing CC No. 1915/1/2007 & 1916/1/2007 and sentenced him to undergo simple imprisonment for six months and also directed him to pay a compensation of Rs. 7 Lakhs to complainant in complaint case no. 1916/1/2007 and Rs. 3.40 Lakhs in the complaint case no. 1915/1/2007.
The brief facts necessary for disposal of both the present appeals as enumerated in the abovesaid complaints are that the appellant/accused approached the complainant for financial help to complete his construction work and in consequence to the same, one investment deed was executed on 20.05.2006. In pursuance to the said agreement, the appellant/accused received Rs. 10,90,000/ through the cheque's bearing no. 087427, 2396526, 087429, 235037 & 396527, 306423 and an amount of Rs. 1,10,000/ in cash from the respondent. It was also agreed between parties that the appellant/accused would pay an amount of Rs. 2,000/ per day as CA NO. 5/14 & 17/14 Page No. 2/11 penalty after 15.08.2006 to the complainant in case the accused failed to return agreed amount of Rs. 14 Lakhs to the complainant.
The appellant/accused has also undertaken to return the envisage amount by 15.08.2006 and had issued three cheques bearing no. 365404 and 365406 both dated 15.08.2006 each for an amount of Rs. 6 Lakhs and cheque bearing no. 365407 dated 15.08.2006 for Rs. 2 Lakhs (3 cheques in dispute). The abovesaid cheques were dishonoured on presentation with remarks Insufficient Funds for which, legal notice was issued and thereafter, the said two complaints U/s 138 NI Act were filed. During trial, the applicant/accused had partly cross examined the complainant, however, thereafter, despite numerous opportunities being given the complainant was not cross examined further and as such his opportunity to cross examine the complainant was closed on 27.07.2011. In his statement U/s 313 Cr. PC, he admitted the execution of investment deed as well as issuance of cheques in question.
The Ld. MM in impugned Order has observed:
"Ld. Counsel for the accused has argued that the investment deed Ex. CW 1/1 has no legal sanctity because the same is hit by the provisions of 74 of Indian Contract Act. The accused has admitted the execution of the investment deed. The complainant has filed the present CA NO. 5/14 & 17/14 Page No. 3/11 complaint on the basis of the cheques which include the principal amount and the interest. Complainant has not claimed penalty as mentioned in the investment deed Ex. CW 1/1. Therefore, this contention of Ld. Counsel for accused holds no ground.
The contention raised by the Ld. Counsel for accused is that the accused has made the payment of the cheques in question during the pendency of the civil suit filed by the complainant against him. Therefore, accused is not liable to be convicted. Perusal of the Judgement dated 14.05.2012 passed in a civil suit filed by the complainant against the accused reveals that accused started to make the payment from 15.09.2009. The abovementioned payments were made by the accused after expiry of 15 days of the service of legal notice which will not absolve the accused from his liability U/s 138 NI Act."
The Ld. MM has further observed that the accused has failed to raise any probable defence to rebut the presumption U/s 139 of NI Act and accordingly convicted him in both the complaint cases.
Counsel for the appellant however argued that the principal amount in the present case was Rs. 10,90,000/ and till date, the appellant has already paid an amount of Rs. 20,32,000/ and as such, the entire CA NO. 5/14 & 17/14 Page No. 4/11 amount towards the compensation already stands paid. He further contended that even otherwise the complainant was never allowed to be cross examined. There was not even a court question asked. There was no fault on part of the appellant and it was on the part of the earlier Counsel who had not cross examined the complainant and had not properly represented the accused in the said complaints. He contended that the appellant may be given atleast one opportunity to cross examine the complainant. He further advanced his arguments on the point of sentence also. He stated that the sentence may be modified and only fine/compensation amount may be imposed as the appellant/accused has been making payments to the complainant/respondent.
Counsel for appellant has relied upon one Judgment passed by the Hon'ble High Court of Delhi in Crl. M.C. No. 1110/11 wherein it has been observed that the amount paid by the appellant in the Civil Decree has to be adjusted in the Criminal Judgement U/s 138 NI Act and vice versa.
Another ground raised by the appellant is that the Ld. MM has passed the impugned order without appreciating that the appellant (herein) had already made most of the payments towards the cheque amount before the Civil Court and the same amount has not been ordered to be adjusted by the Ld. Trial Court.
Ld. Counsel for the appellant has referred to the following CA NO. 5/14 & 17/14 Page No. 5/11 Judgments in support of his contentions:
(i) Nitinbhai Saevatilal Shah & Another Vs Manubhai Manjibhai Panchal & Anr., Criminal Appeal No. 1703 of 2011 passed by the Hon'ble Supreme Court of India.
(ii) Somnath Sarkar Vs Utpal Basu Mallick & Anr. Criminal Appeal No. 1651 of 2013 passed by the Hon'ble Supreme Court of India.
(iii) M.M. Abdul Hameed Vs N.V. Somasundaram, Crl. R.P. No. 1138 of 2014 passed by the Hon'ble High Court of Kerala at Ernakulam.
(iv) Jagdamba Prasad Badoni Vs The State (NCT of Delhi) & Anr. 2004 I AD (Cr.) DHC 539 passed by the Hon'ble High Court of Delhi.
Per contra, Counsel for the respondent has contested the appeals by filing his replies therein submitting that the Ld. Trial Court has passed the impugned judgment after considering all the aspects, contentions and defences raised by the appellant. The appellant has raised unnecessary and unwarranted issues in his appeals. The respondent has denied that the appellant in the very first hearing in the Civil proceedings has offered for a settlement. That after prolonged trials, two decree's were passed by the Civil Courts and the Ld. ADJ in favour of the respondent, however, despite the same, appellant did not bother to make the payment towards the decretal amount and even avoided and tried to frustrate the execution of warrants of attachment in the execution proceedings.
CA NO. 5/14 & 17/14 Page No. 6/11
I have gone through the record and also perused the impugned order.
From the record itself, it is clear that the appellant has duly admitted his liability during the proceedings. He also admitted the issuance of the cheques and the service of the mandatory notice U/s 138 NI Act. Despite ample opportunities being given, the appellant had failed to cross examine the complainant. The Ld. MM has afforded one last and final opportunity also to the appellant to cross examine the complainant, subject to cost's, which also the appellant failed to avail. Accordingly, his opportunity to cross examine was closed. However, on perusal of record, it is revealed that in his statement U/s 313 Cr. PC recorded before Ld. MM, the appellant has not only admitted the investment deed but also the entire case of the complainant. He admitted that the complainant had approached him for investment in his project for his own benefit. He admitted issuance of all the three cheques and also the dishonour. In his statement, he has not disputed the case of the respondent and has only stated that he has returned the entire amount alongwith benefits in the civil proceedings. Even in his own examination u/s 315 Cr. PC, he stated that the complainant has filed recovery suit against him and in that on the very first date, he made a proposal for making the payments however the complainant has refused to settle the dispute. He admitted that he had entered into an investment deed with the complainant CA NO. 5/14 & 17/14 Page No. 7/11 on 20.05.2006. He stated that in lieu of the cheque of Rs. 2 Lakhs, he has paid the complainant Rs. 2.46 Lakhs. In the other case involving Rs. 12 Lakhs, he had paid the complainant Rs. 9.86 Lakhs in the court.
From the abovesaid, it is clear that the appellant has never disputed the liability towards the complainant. He admitted the entire case of the complainant in his statement U/s 313 Cr. PC and also in his deposition U/s 315 Cr. PC. In view of his clear admission in his own evidence, the contention raised by the appellant that his opportunity to cross examine the complainant was closed, hence, is unworthy of consideration as even, he has not preferred any application before the Ld. MM seeking permission to cross examine the complainant again. The said order was never challenged. After considering the material facts, documents, evidence available on record, the Ld. Trial Court has passed the impugned judgment. In these circumstances, I do not find any illegality or infirmity in the Judgment dated 26.02.2014 passed by Ld. MM in both the cases bearing CC No. 1915/1/2007 & 1916/1/2007 thereby convicting him for the offence U/s 138 NI Act. There is no illegality or infirmity therein, which warrants interference by this Court.
However, as already observed, Counsel for appellant has laid main emphasis on the point of sentence only. It has been prayed that only fine/compensation amount may be imposed upon the appellant as he has been regularly making payments to the complainant/respondent. CA NO. 5/14 & 17/14 Page No. 8/11
In this regard, reference has also been made to the observations made by the Hon'ble Supreme Court in Damodar S. Prabhu v. Syed Babalal H. (2010) 5 SCC 663 wherein the Hon'ble Supreme Court has examined the object sought to be achieved by the provisions of Section 138 and the purpose underlying the punishment provided therein. It was observed that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment of money rather than to seek retribution. The Court said:
"17.... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque."
It was further observed that "This Court also took note of the number of cases involving dishonor of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonor of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only CA NO. 5/14 & 17/14 Page No. 9/11 intended to ensure quick recovery of the amount payable under the instrument."
In the present case, all the three cheques in dispute are dated 15.08.2006. The trial continued for about 8 years till the date of Judgment i.e. 26.02.2014. However, it has also come up on record that in the year 2009 itself, pursuant to a settlement arrived at between the parties, it was agreed between the parties that the appellant will make payments in installments of Rs. 1,17,000/ per month. It is also admitted that pursuant to the said settlement, a sum of Rs. 9,19,000/ was already paid upto 29.10.2011.
During the course of arguments on 30.03.2015, Counsel for appellant informed that the appellant has already paid an amount of Rs. 20.32 Lakhs to the respondent against the liability of Rs. 14 Lakhs only. Counsel for respondent however submitted that an amount of Rs. 19.35 was paid by the appellant to respondent till date including the payments made in the execution proceedings. It was also informed and not disputed by the respondent that on the date of order on sentence i.e. 26.02.2014, the appellant has already made payment of Rs. 11,69,000/. However, from the record, it is clear that till date the appellant has already made the entire payments towards the compensation amount as imposed by the Ld. MM vide order dated 26.02.2014 in both the complaints.
In view of the aforesaid, the impugned order of conviction CA NO. 5/14 & 17/14 Page No. 10/11 warrants no interference, however, as argued by the appellant on the point of sentence, admittedly, a considerable amount was already paid by the appellant in the civil proceedings in compliance of the settlement arrived at between the parties which shows his bonafide to make the payments, secondly, the appellant is first offender in the present case. Further, it is also informed by the Counsel for appellant that one building which the appellant has constructed and in which the respondent invested the money involved in the present case was demolished by the MCD in the year 2007 due to which, the appellant was caught in a severe financial crunch. The appellant has faced trial in the present complaints for the last about 7 years.
In view of the abovesaid, the sentence part is modified to the extent that the sentence of imprisonment is reduced to imprisonment till rising of the Court, however, the amount of compensation awarded by the Ld. Trial Court will stand enhanced to a sum of Rs. 2 Lakhs for the entire transaction i.e. covering both the complaints to be paid to the respondent within 30 days in default SI for six months.
Criminal Appeal record be consigned to Record Room. TCR be sent back to Court concerned alongwith copy of this Order.
Copy of this Order be kept in both the files.
ANNOUNCED IN THE OPEN COURT (SUDESH KUMAR)
ON 19.05.2015 ASJ, S.E., SAKET COURTS/NEW DELHI
CA NO. 5/14 & 17/14 Page No. 11/11