Delhi District Court
Cc No. 275/14 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. 275/14
Unique Case ID No. 02403R0487512009
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. 275/14 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. 352272,
dated 30.09.2009, for a sum of Rs. 55,33,008/- (Rupees Fifty
Five Lakh Thirty Three Thousand and Eight 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 dated
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 2/21
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. 5,00,000/- (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. 275/14 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 Jain. No other
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 4/21
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 within a period of six months from the
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 5/21
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
question by the bank unpaid and calling upon her to make
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 6/21
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
desposing 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 7/21
the tenant at the premises and keeps visiting the premises. This
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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 8/21
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 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 9/21
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 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.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 signed and blank 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 10/21
had acknowledged her liability towards the complainant and
that the cheque in question had been handed over by the
accused to the complainant 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 11/21
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 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 12/21
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 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 13/21
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 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 14/21
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 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
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 15/21
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) 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 CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 16/21 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 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, CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 17/21 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 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 CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 18/21 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 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. Assuming for the sake of arguments only that the accused had handed over blank letter pads, blank and CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 19/21 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 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 CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 20/21 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 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. 275/14 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. 275/14
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. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 22/21
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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 additional plea raised that the convict does not have the capacity to pay and no ...contd..3..
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 23/21
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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 six months simple imprisonment and directed to pay compensation of Rs. 69,16,260/- (Rupees Sxity Nine Lakh Sixteen Thousand Two Hundred and Sixty Only) under Section 357 (3) of CrPC for the loss suffered by the complainant, and in default of payment of compensation, to undergo additional three months simple imprisonment.
(SALONI SINGH) Civil Judge-02/PHC/N.DELHI 28.07.2015 CC No. 275/14 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. 275/14
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 stated 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. 5,00,000/- 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. 270/14. The bail bonds and surety bond are accepted till the next date of hearing giving ...contd..2..
CC No. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 25/21
- 2- 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. 275/14 M/s Second Lucre partnership vs. Resham Devi Surana. 26/21