Delhi District Court
50/18 & 151/18 vs M/S. Indian Overseas Co. (P) Ltd on 3 December, 2018
Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal : 146/18, 147/18, 148/18, 149/18, 150/18 &
Nos. 151/18
Under Section : 138 Negotiable Instruments Act, 1881
Police Station : Madhu Vihar
CC Nos. : 50718/16, 52830/16, 50619/16, 50775/16,
52829/16 & 50727/16
CNR Nos. : DLET01-007512-2018, DLET01-007507-2018,
DLET01-007508-2018, DLET01-007509-2018,
DLET01-007510-2018 & DLET01-007506-2018
In the matter of Crl. Appl. Nos. 146/18, 147/18, 148/18, 149/18,
150/18 & 151/18 :-
SH. GULSHAN
S/o. Late Shri Ram Prakash,
R/o. WZ-645, Gali No.1, Sri Nagar,
Shakarpur Basti @ Shakur Basti, Delhi-110034.
............APPELLANT
VERSUS
1. M/S. INDIAN OVERSEAS CO. (P) LTD.
Through General Attorney Sh. Poonam Chand,
O/o. 175, F.I.E., Patparganj Industrial Area, Delhi-92.
2. STATE (GOVT. OF NCT OF DELHI) ........RESPONDENTS
Date of Institution : 26.10.2018
Date of reserving judgment : 27.11.2018
Date of pronouncement : 03.12.2018
Decision : All 6 appeals are dismissed.
COMMON JUDGMENT
1. Vide this common judgment, I shall decide six appeals, which have been preferred against six judgments of conviction dated 24.09.2018 and respective orders on sentence dated 26.09.2018, passed by trial Page 1 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 court in the cases all titled as M/s. Indian Overseas Co. (P) Ltd. v. Shri Gulshan, bearing CC Nos.50718/16, 52830/16, 50619/16, 50775/16, 52829/16 & 50727/16, under Section 138/141/142 of Negotiable Instruments Act (hereinafter referred to as NI Act), PS Madhu Vihar. Vide impugned judgments of conviction dated 24.09.2018, trial court convicted accused Gulshan (appellant herein in all six appeals) for offence punishable under Section 138 NI Act.
2. Vide impugned orders on sentence dated 26.09.2018, sentences passed against convict Gulshan are as follows :-
● In CC No. 50718/16 convict was sentenced to TRC and to pay fine of Rs.90,000/-. Out of fine of Rs.90,000/-, Rs.80,000/- was payable to complainant as compensation and remaining amount of Rs.10,000/- was to be deposited with State. ● In CC No. 52830/16 convict was sentenced to TRC and to pay fine of Rs.45,000/-. Out of fine of Rs.45,000/-, Rs.35,000/- was payable to complainant as compensation and remaining amount of Rs.10,000/- was to be deposited with State. ● In CC No. 50619/16 convict was sentenced to TRC and to pay fine of Rs.74,000/-. Out of fine of Rs.74,000/-, Rs.70,000/- was payable to complainant as compensation and remaining amount of Rs.4,000/- was to be deposited with State. ● In CC No. 50775/16 convict was sentenced to TRC and to pay fine of Rs.90,000/-. Out of fine of Rs.90,000/-, Rs.80,000/- was payable to complainant as compensation and remaining amount of Rs.10,000/- was to be deposited with State. ● In CC No. 52829/16 convict was sentenced to TRC and to pay fine of Rs.50,000/-. Out of fine of Rs.50,000/-, Rs.40,000/- was Page 2 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 payable to complainant as compensation and remaining amount of Rs.10,000/- was to be deposited with State. ● In CC No. 50727/16 convict was sentenced to TRC and to pay fine of Rs.85,000/-. Out of fine of Rs.85,000/-, Rs.75,000/- was payable to complainant as compensation and remaining amount of Rs.10,000/- was to be deposited with State. ● In default of payment of fine, convict was to undergo simple imprisonment for a period of four months in each case. BRIEF FACTS OF THIS CASE :-
3. Briefly stated, the relevant facts giving rise to these six appeals are that Sh. Poonam Chand being General Attorney of M/s. Indian Overseas Co. (P) Ltd. (hereinafter referred to as complainant company) filed six complaint cases for offence punishable under Section 138 NI Act against Sh. Gulshan. In all six complaint cases, it was alleged against appellant that being proprietor of M/s. Gulshan Electronics, appellant approached complainant company for purchasing the electronic goods. Due to developed business relationship with appellant, he was supplied and delivered the electronic goods by complainant company, as desired by appellant from time to time.
4. In continuation of the same and in discharge of his part liability against supply of electronic goods, appellant issued several cheques, which are as follows :-
● In CC No.50718/16, appellant had issued five cheques i.e. cheque bearing no.109353 dated 02.12.2011, for Rs.11,320/-; cheque bearing no.109355 dated 05.12.2011 for Rs.11,320/-; cheque bearing no.109357 dated 12.12.2011 for Rs.11,525/-; cheque Page 3 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 bearing no.109358 dated 12.12.2011 for Rs.11,525/- and cheque bearing no.109359 dated 13.12.2011 for Rs.11,525/-, all drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company. ● In CC No.52830/16, appellant had issued two cheques i.e. cheque bearing no.109321 dated 29.09.2011, for Rs.14,000/- and cheque bearing no.109363 dated 30.09.2011 for Rs.16,000/-, both drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company. ● In CC No.50619/16, appellant had issued three cheques i.e. cheque bearing no.109332 dated 01.10.2011, for Rs.16,200/-; cheque bearing no.109333 dated 05.10.2011 for Rs.16,000/- and cheque bearing no.109334 dated 08.10.2011 for Rs.16,000/-, all three drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company. ● In CC No.50775/16, appellant had issued four cheques i.e. cheque bearing no.109416 dated 25.12.2011, for Rs.15,440/-; cheque bearing no.109417 dated 27.12.2011 for Rs.15,440/-; cheque bearing no.109418 dated 29.12.2011 for Rs.15,440/- and cheque bearing no.109420 dated 03.01.2012 for Rs.14,334/-, all drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company. ● In CC No.52829/16, appellant had issued two cheques i.e. cheque bearing no.109335 dated 11.10.2011, for Rs.16,000/- and cheque bearing no.109338 dated 18.10.2011 for Rs.16,000/-, both drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company.Page 4 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 ● In CC No.50727/16, appellant had issued four cheques i.e. cheque bearing no.109361 dated 10.12.2011, for Rs.11,320/-; cheque bearing no.109362 dated 15.12.2011 for Rs.11,525/-; cheque bearing no.109414 dated 21.12.2011 for Rs.17,450/- and cheque bearing no.109415 dated 23.12.2011 for Rs.15,440/-, all drawn on Oriental Bank of Commerce, 3399, Mahendra Park Chowk, Rani Bagh, Delhi, in favour of complainant company.
5. But, all aforesaid cheques in question of six complaint cases, were not honored and returned to the complainant with remarks "Exceeds Arrangement" vide return memos dated 30.03.2012 in complaint cases bearing CC Nos.50718/16, 50775/16, 52829/16 & 50727/16 and vide return memo dated 19.03.2012 in CC Nos. 52830/16 and 50619/16. Thereafter, a legal notice dated 16.04.2012 was sent to appellant through speed post/courier at correct address of appellant, which was delivered to appellant. Despite knowledge of dishonor of cheques, accused did not pay the amount within stipulated time, hence this complaint.
6. In all six complaint cases appellant was summoned as an accused and on 05.08.2014 trial court framed notice under Section 251 Cr.P.C against appellant in all six cases, to which he pleaded not guilty and claimed trial. Thereafter, on 22.05.2017 statement of accused under Section 313 Cr.P.C was recorded and he opted to lead evidence in his defence. However, despite taking opportunities, he did not lead any evidence and vide order dated 23.04.2018 DE was closed.
7. Final arguments were heard and trial was concluded by convicting Gulshan vide impugned judgments of conviction dated 24.09.2018 and orders on sentence were passed against convict vide impugned Page 5 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 orders dated 26.09.2018, in all six complaint cases. GROUNDS : -
8. Being aggrieved of the impugned judgments of conviction and orders on sentence, appellant Gulshan has preferred six criminal appeals on the following relevant grounds :-
● That trial court arbitrarily passed the impugned judgments in favour of complainant company/respondent no.1 company and against appellant without considering the actual facts and circumstances.
● That complainant company totally failed to prove the case against appellant.
● That ld. MM failed to consider the ingredients of offence under Section 138 of the Act and no evidence is available on record to prove the said case.
● That trial court did not consider the fact that liability accrued against appellant on the date of issuing the cheques of appellant could not be proved on behalf of complainant company. ● That trial court did not consider the fact that Sh. Poonam Chand had taken appellant into his confidence and assured that he would withdraw the case. As per his instructions, appellant admitted his liability and the matter was compromised between the parties before Mediation Centre, Karkardooma Courts, Delhi. Thereafter, Mr. Poonam Chand failed to comply with the terms and conditions of the mediation settlement and due to this reason, mediation was failed.
● That trial court did not appreciate the fact that appellant is a layman and due to his poor financial condition, he could not Page 6 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 defend the case properly. Neither appellant cross-examined CW1 nor led defence evidence and as such the truth could not come on record. Hence, one opportunity may kindly be granted to appellant to cross-examine Mr. Poonam Chand and to lead defence evidence.
● That Mr. Poonam Chand misused the aforesaid cheques with ulterior motives and malafide intentions.
● That cheques in question were pertaining to proprietorship concern and Mr. Poonam Chand did not implead the proprietorship concern as party to the complaint and as such the complaint was defective and was liable to be dismissed. ● That trial court did not consider any submission and requests of appellant and his financial position and passed the impugned judgments and orders.
APPRECIATION OF EVIDENCE AND ARGUMENTS AS WELL AS FINDINGS :-
9. Ld. counsel for appellant argued on the lines of grounds taken in all six appeals. He further submitted that due to poor financial position, appellant could not make payments to the complainant company, though, he had been ready for doing so. He also submitted that appellant was not given opportunity to defend himself properly, so as to cross-examine the complainant's witness and to lead his own evidence.
10.Per contra, in the written arguments filed on behalf of complainant company, it was argued that the appeals have been filed by appellant with malafide intention, which are devoid of true facts. It was further submitted in the arguments that appellant had duly admitted the Page 7 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 purchase of electronic goods and liability to make payments. He also failed to comply with the settlement terms arrived before Delhi Mediation Centre, Karkardooma, Delhi. Appellant had been only trying to delay the cases and did not cross-examine the complainant or lead his evidence. Therefore, court was constrained to close his rights to cross-examine CW1 as well as to lead defence evidence. It was further argued that it was onus of the appellant to discharge statutory presumptions under Section 139 of NI Act, which he did not discharge.
11.I have perused the trial court records and I find that the complaints had been pending since the year 2012. Appellant had put in his appearance before trial court on 04.10.2012 and thereafter, matter was also settled before Mediation Centre, Karkardooma Court, Delhi. But, terms of the same were not complied by the parties including appellant. After framing of notice on 05.08.2014 in all six cases, complainant was given opportunity to cross-examine complainant's witness, however, he did not avail the given opportunities. Trial court records further show that it was habit of the appellant to be absent on the date, when he was supposed to cross-examine complainant's witness or to lead his own evidence. Every time, trial court was constrained to issue NBW against appellant and same were cancelled on subsequent appearance of the appellant. On failure of complainant to cross-examine complainant's witness, his opportunity was closed on 06.02.2017. On failure of accused to lead his evidence despite given opportunities since 27.07.2017, such right was finally closed on 23.04.2018, because appellant instead of availing the opportunity opted to be absent from the proceedings.
Page 8 of 10 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18
12.In view of aforesaid circumstances, I do not find any merit in the arguments that appellant was not given fair opportunity to defend himself. There is no merit in the contention that there is no evidence on the records to prove the case of appellant. At the time of framing of notice, appellant had admitted that cheques were signed by him and even the amounts were filled by him. He also admitted that he had given the cheques to the complainant company. He took plea that the cheques were given as security for electronic goods received by appellant from the complainant company. He further took plea that he had no pecuniary liability as defective goods were supplied to him by the complainant company and he intimated the complainant about the same. He also took plea that he had returned some goods to the complainant, but complainant did not exchange them and those goods were still lying at his shop. Appellant admitted having received legal notice dated 16.04.2012.
13.Since, the cheques in question were signed and issued by appellant and were given to the complainant, presumption under Section 118 and 139 NI Act operated against him. Ld. MM has appropriately referred to the observations made by Supreme Court in the case of T. Vasantha Kumar v. Vijaya Kumari, (2015) 8 SCC 378, to say that presumption under Section 139 of NI Act was to be initially discharged by accused and only thereafter, the burden could receive upon the complainant. This was so held in the case of Rangappa v. Sri Mohan, (2010) 11 SCC 441 as well.
14.Apparently, appellant neither cross-examined the witness of complainant company on any aspect so as to demolish the cases set up by complainant, nor did he lead his own evidence to show and Page 9 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal Nos.146/18, 147/18, 148/18, 149/18, 150/18 & 151/18 establish that there was no liability against cheques in question. Rather, in his statement under Section 313 Cr.P.C appellant himself took plea that he had handed over cheques for making payments with respect to the goods purchased by him and he had to make payment to the complainant company, for which he needed some time.
15.In these circumstances, there remains no second thought about liability of appellant in respect of cheques in question. Therefore, I do not find any infirmity in the impugned judgments of conviction.
16.As far as orders on sentence are concerned, I find that ld. MM has already taken maximum possible lenient view so as to sentence the appellant to TRC only and to impose fine moderately. It is worth to be seen that the cheques were issued in the year 2011 on various dates and seven years have lapsed without any payment to the complainant company. Trial court records show that appellant left no stone unturned to delay the proceedings. In these circumstances, I do not find any reason to interfere with the impugned orders on sentence as well. All fines shall be recoverable as per Section 421 Cr.P.C read with Section 431 Cr.P.C. Hence, all six appeals are dismissed.
17.TCRs be sent back along with common judgment to the trial court. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2018.12.03
16:38:28 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 03.12.2018 Special Judge (PC Act) CBI, East
(This order contains 10 pages) Karkardooma Courts, Delhi
Page 10 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi