Delhi District Court
The Complainant Is Running The Business ... vs . on 27 April, 2012
Anita Mehta v. Vinod Malik
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Anita Mehta
Prop. Gulshan Lease & Finance Corporation,
K-94, 1st Floor, Main Road, Masoodpur,
Vasant Kunj, New Delhi-110070.
. . . Complainant
Vs.
Vinod Malik
S/o Sh.Dalel Singh
R/o Village & Post Office Masoodpur,
Vasant Kunj, New Delhi.
. . . Accused
CC NO. : 4544/11
OFFENCE COMPLAINED OF : U/s 138 of Negotiable Instruments Act
PLEA OF ACCUSED : Not Guilty
DATE OF INSTITUTION : 29.07.2003
DATE OF RESERVING ORDER : 17.04.2012
FINAL ORDER : Convicted
DATE OF ORDER : 27.04.2012
Present: Sh. Tej Pal Singh, Counsel for the complainant alongwith complainant in person.
Sh. Subhash Gupta, Counsel for the accused alongwith accused in person.
JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/s 138 of Negotiable Instruments Act. The brief facts of the case are as follows: -
1. The complainant is running the business of Financing of old and new Motor Vehicles in the name and style of M/s Gulshan Leasing & Finance Corporation, which is also a non banking institution. The complainant is acting through Sh.A.K. Mehta, who is duly constituted Attorney for the complainant and has power to sign, file and prosecute the present complaint. The copy of power of attorney is Ex.CW1/A. 02406R0552222003 -1- Anita Mehta v. Vinod Malik
2. The accused persons approached the complainant for loan against TATA Bus bearing No. DL-1P-A-1010 and requested for the loan of Rs.2,50,000/-. The complainant advanced the loan of Rs.2,50,000/- on 8.10.1999 under the Hire Purchase Agreement and the relevant documents were also executed by the accused in favour of the complainant. The said loan was repayable in 12 installments of Rs.25,000/- each and the accused issued 12 post dated cheques each for an amount of Rs.25,000/- starting from 10.11.1999.
3. That the accused paid four installments of Rs.25,000/- each totaling Rs.1,00,000/- and thereafter, again took a cash loan of Rs.1,00,000/- from the complainant on 15.01.2011.
The accused thereafter defaulted in making the payment and upon constant follow up by the complainant, the accused paid further amount of Rs.70,000/- in installment and thereafter, again failed to liquidate the amount due and payable to the complainant together with default payment interest.
4. That, thereafter, the accused entered into a settlement with the complainant and on 27.05.2002, the matter was compromised and it was agreed by the accused that he will pay an amount of Rs.3,00,000/- towards full and final settlement of account. The said final settlement deed is Ex.CW1/B. The accused, therefore, in discharge of debt and liability issued a post dated cheque bearing no. 800889 dated 27.06.2002 for an amount of Rs. 2,50,000/- drawn on Oriental Bank of Commerce, Vasant Kunj, New Delhi and for the balance amount of Rs.50,000/-, the accused revalidated two cheques bearing no.884363 and 884364 for Rs.25,000/- each. The accused requested to complainant that the accused will pay the amount in cash and will take the cheques back. The accused thereafter paid an amount of Rs.50,000/- in cash against the cheques bearing no.884363 and 886364 each for Rs.25,000/-.
5. That the accused did not make the payment of cheque for Rs.2,50,000/- bearing no.
800889 and since the validity period of the cheque was expiring, the complainant presented the cheque but the accused requested the complainant to give him some more time and gave a request in writing on 07.01.2003 seeking one month's time. The accused 02406R0552222003 -2- Anita Mehta v. Vinod Malik then revalidated the cheque for Rs.2,50,000/- to the new date of 07.02.2003. The complainant agreed to the said request. The said writing is Ex.CW1/C.
6. That the accused, thereafter, again failed to make payment of the cheque of Rs.2,50,000/-
to the complainant, so, finally the cheque bearing no.800889, which is Ex.CW1/D was presented for encashment by the complainant, which was returned unpaid by the banker of the accused for the reason "Insufficient Funds" vide cheque returning memo dated 12.06.2003, which is Ex.CW1/E.
7. The complainant thereafter issued legal demand notice dated 16.06.2003 to the accused through her advocate and which was sent through courier, registered post and under U.P.C. The legal demand notice, which was sent by the complainant through courier, was received by the accused on 20.06.2003, whereas the legal demand notice, which was sent through registered cover has been returned back on 21.06.2003. The copy of legal notice is Ex.CW1/F, courier receipt is Ex.CW1/G, postal receipt is Ex.CW1/H, UPC receipt is Ex.CW1/I and the A.D. card is Ex.CW1/J.
8. The accused failed to make the payment of the amount of cheque in question to the complainant in person within the stipulated period of the said legal demand notice and therefore, the complainant has filed the present complaint against the accused, which is Ex.CW1/K.
9. Accordingly, the summoning order was passed against the accused on 29.07.2003 and on appearance of the accused, the notice under section 251 Cr.P.C. was served upon the accused on 12.09.2007, to which the accused pleaded not guilty and claimed trial.
10. The attorney of the complainant, thereafter, filed his post summoning evidence by way of affidavit, dated 06.12.2007. In the said affidavit, the attorney for the complainant only reiterated the facts of the complaint and his pre-summoning evidence by way of affidavit. The attorney for the complainant was then cross-examined by Ld. Counsel for the accused. In the cross-examination, the attorney of the complainant admitted that he has 02406R0552222003 -3- Anita Mehta v. Vinod Malik not filed any proof on record to show that Anita Mehta (the complainant) is the proprietor of Gulshan Lease and Finance Corporation. He also denied that the complainant possesses any license of the proprietorship firm Gulshan Lease & Finance Corporation for money lending. The attorney of the complainant further stated that he was the person responsible for the transaction undertaken by the complainant firm and that he knows the accused for last about 15 years as the office of the accused is opposite to the complainant's office. The attorney then stated that the accused approached him for the loan in the year 1999, alongwith two guarantors, namely one Mr. Dharambir and one Mrs. Sarita Devi. The accused had repaid four installments after taking the said loan, but he stated that he does not remember for which months the said installments were paid.
11. Thereafter, the attorney for the complainant stated that the accused had not given him any cheque in lieu of the loan of Rs. 1,00,000 given to the accused in the year 2001. He further mentioned that no loan agreement was executed while granting the said loan. The attorney of the complainant accused voluntarily stated that the entire loan of Rs. 2.5 lakhs given to the accused in the year 1999 and Rs. 1 lakh given in the year 2001, was settled in May, 2002 for a total sum of Rs. 3,00,000. Accordingly, the accused issued one cheque of Rs. 2,50,000 and signed a document for settling the loan and revalidated two cheques of Rs. 25,000 each given for the installments in lieu of the said settlement. The attorney of the complainant then denied receiving any payment of Rs. 70,000 from the accused prior to the above mentioned settlement, but admitted that the accused had made a payment of Rs. 50,000 on 27.09.2002 and had taken the revalidated cheques of Rs. 25,000 each. The attorney also stated in his statement that the settlement which was arrived at between him and the accused was in writing and that no other person was present at that time.
12. The attorney of the complainant, thereafter, stated that he had given verbal reminders to the accused after the impugned cheque was dishonoured on first presentment. The attorney for the complainant had admitted in his cross examination that the cheque in question was given as a security for the repayment of the loan. However, he further stated 02406R0552222003 -4- Anita Mehta v. Vinod Malik that the accused had requested him not to present the said cheque as he will be making payment in cash, but no payment has been made by the accused till date, and thus, the cheque in question was presented for encashment. The attorney of the complainant then categorically denied all the suggestions of the Ld. Counsel for the accused that he has already recieved the payment of Rs. 2,50,000 from the accused, or that he did not return the cheque despite receipt of any such payment. The attorney also denied that the Power of Attorney filed by him, which is Ex. CW1/A is a fabricated document.
13. The statement of the accused under section 313 Cr.P.C. was then recorded. In his statement, the accused admitted taking of the loan of Rs. 2,50,000 from the complainant, however, stated that he had already repaid the said loan amount and the cheque in question was given as security to the complainant for the said loan. The accused further stated that no receipt of payment of loan was issued by the complainant to him. He also denied receipt of the legal demand notice. The accused also denied taking any loan of Rs. 1,00,000 from the complainant after the aforesaid loan, as alleged in the complaint. He then alleged against the complainant that the complainant had asked him to sign certain blank papers at the time of granting of the loan. He also said that he had never arrived at any settlement of Rs. 3,00,000 with the complainant. The accused also alleged against the complainant that after repaying the loan, he had approached the complainant for an NOC in respect of his TATA Bus bearing no. DL-1PA-1010. But the complainant asked him to give a sum of Rs. 20,000 to Rs. 30,000 for issuing an NOC. Thereafter, he and the complainant had a hot exchange of words and, therefore, the complainant had filed the present case against him.
14. The accused examined two witnesses in his defence, namely, DW1 Dharambir and DW2 Rakesh. The DW 1 deposed in his statement that he stood guarantor for the loan of Rs. 2,50,000 taken by the accused from the complainant, as the accused is related to him as a distant brother. He also stated that he knows the attorney representing the complainant in the present case as he had also financed a Truck in the name of the said witness. He 02406R0552222003 -5- Anita Mehta v. Vinod Malik further deposed that he used to keep inquiring from the attorney of the complainant as to whether the accused is repaying his loan amount and whether the attorney is receiving installments of the said repayment, and the attorney of the complainant used to tell him that he is receiving the installments on time. He further stated that in the year 2003-2004, he had enquired from the accused as to whether he had repaid his loam amount and the accused told him that only Rs. 20,000 - 30,000 is now due upon him. He, however, stated that he does not remember the date or the month when the accused had informed the same. He also stated that in the same year, accused had informed him that he had a confrontation / argument with the attorney of the complainant when he approached the attorney for seeking an NOC as the accused had already repaid the entire loan amount. He, however, submitted that the said confrontation had not taken place in his presence and he was only told about it by the accused later on. He also stated that he does not remember the time or date when he got to know about the said confrontation. A bare reading of the entire piece of evidence led by DW1 appears to be nothing but a hearsay evidence.
15. In the cross-examination of DW1, he had admitted that he had also taken a loan from the attorney for the complainant and that he too had defaulted in repayment of the said loan. However, he stated that the said loan has now been repaid and the complaint filed by the attorney of the complainant against him in Patiala House Courts have already been disposed off in his favour. He also admitted that an appeal against the said order of Patiala House Courts is also pending before Hon'ble High Court of Delhi. He further denied the suggestion that the accused had not informed him that only Rs. 20,000 - 30,000 was pending upon the accused against the complainant and stated that he did not try to mediate between the accused and the attorney of the complainant for the settlement of said amount as they did not ask him to do so. He denied the suggestion that he did not try to mediate as he was also a defaulter of the complainant. He also admitted that he had not checked any records / receipts, etc. to verify whether the loan has been repaid by the accused or not. The witness, however, admitted that the attorney of the complainant used to issue him receipts of the loan amount whenever he used to repay the same. Thereafter, the said 02406R0552222003 -6- Anita Mehta v. Vinod Malik witness denied all other suggestions of the complainant which challenged the veracity of his deposition in examination-in-chief.
16. DW2 had deposed that the accused had hired a vehicle from him for the purpose of his business. He further stated that in the year 2003, the accused had paid a sum of Rs. 50,000 to one Mr. Ziley Singh, who used to work in the office of the complainant. He also submitted that when the accused asked for the receipt of the said payment, said Ziley Singh stated that he will give the receipt in the evening. DW2 stated that he was a witness to the said transaction. In his cross examination the said witness stated that he had taken a loan of Rs. 1,20,000 from the complainant in two parts of Rs. 60,000 each, against two vehicles in the year 1998. He further stated that he had already repaid the said loan to the complainant and the same was repaid in time, except for 2-3 installments which were paid late. The said witness stated that the amount of Rs. 50,000 was given by the accused to Ziley Singh in the month of September, 2003, however, he do not remember the exact date. He also stated that no receipt was issued by Ziley Singh for the said payment. DW2 further stated that he alongwith the peon of the accused were present when the transaction between Ziley Singh and the accused had taken place. The witness, thereafter, denied all the suggestions of the counsel for the accused that the said payment of Rs. 50,000 was not made in his presence or that the said transaction had taken place in the year 2002, etc.
17. I have perused the entire material on record and heard the submissions of the rival parties.
18. At the outset, it is pertinent to mention the law in respect of section 138 of N.I. Act. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to prove all the following ingredients:
i. There is legally enforceable liability / debt.
ii. The drawer of the cheques issued the cheques to satisfy part or whole of the debt or other liability.
iii. The cheques so issued have been returned due to insufficiency of funds or exceeds arrangement.02406R0552222003 -7-
Anita Mehta v. Vinod Malik iv. Payment not made by the accused despite service of the legal demand notice.
19. Moreover, the Negotiable Instruments Act also raises certain presumptions in favour of the holder in due course of a negotiable instrument. As per section 118 (a) of the said Act, "Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
20. Section 139 of the Act stipulates and as under:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
21. Under the light of these provisions and the provisions of the Law of Evidence, I have examined the evidence placed on record on behalf of both the parties. The accused had stated in his statement under section 313 Cr.P.C. that he has already repaid the cheque amount. However, the said averment was not supported by any documentary evidence. The accused examined DW1 in his support, however, the deposition of the said witness also appears to be nothing a but a hearsay evidence. It is clear from the deposition of the said witness that no part of the transaction between the complainant and the accused had taken in his presence, and the witness had only stated what the accused or the attorney of the complainant had told him regarding the re-payment of the entire loan taken by the accused, and that the accused informed the said witness that only Rs. 20,000-30,000 was due upon him. The fact alleged by the accused in his statement under section 313 Cr.P.C. that he had approached the complainant for NOC as the loan had already been repaid and he and the attorney of the complainant had an argument on the said day was nowhere proved. The witness DW1 also affirmed this fact only by saying that the accused had told him about the same. Thus, the entire deposition of DW1 is a highly unreliable piece of 02406R0552222003 -8- Anita Mehta v. Vinod Malik evidence. The said deposition also becomes doubtful especially in view of the fact that the said witness is closely related to the accused being his distant brother and he knows the accused since childhood. Also, the said witness was also one of the defaulters of the complainant company as admitted by him in his cross-examination and the said fact was also argued by Ld. Counsel for the complainant while challenging the deposition of DW1. The said witness has, however, repaid the loan of the complainant as of date. In his deposition, he had also mentioned that the complainant company used to issue him receipts for the payment in respect of the loan, as and when they were made. On the contrary, the accused had stated in his statement under section 313 Cr.P.C., that no receipt was given to him after the repayment of the loan. This fact was nowhere substantiated by the accused in his defence witness. Now, it is difficult to perceive that in the absence of any alleged biases against a particular borrower, why the complainant company would issue receipts to one of the borrowers against repayment of the loan and not to another borrower (the accused herein). Thus, the fact of non-issuance of receipts on the part of the complainant cannot be believed. In view of the said observation, the averment of the accused that he has already paid the loan amount, cannot be accepted as the said averment remains unproved in the absence of any documentary evidence.
22. Now, the evidence of DW2 also is not reliable as it nowhere proves that the amount of Rs.
50,000/- which he stated was given by the accused to one Mr. Ziley Singh who works in the office of the complainant was in respect of the present liability or not. Neither any receipt for the payment of said amount was produced nor said witness Ziley Singh was examined by the accused. Therefore, the said witness is of no relevance for rebutting the liability in the present complaint.
23. Further, perusal of the record shows that the accused had himself given in writing that he is settling the loan given to him by the complainant for a total amount of Rs. 3,00,000/- and he had issued a post-dated cheque in favour of the complainant bearing no. 800889 dated 29.06.2002 for a sum of Rs. 2,50,000, which is the cheque in question, and for the 02406R0552222003 -9- Anita Mehta v. Vinod Malik remaining amount he had agreed to pay the same in the month of September, 2002 and against that he validated two post dated cheques bearing nos. 884363 and 884364b of Rs. 25,000 each. He had also agreed that he will make the payment to the complainant in cash and will take back the cheques after cancelling the same, and in case the payment is not made by him in cash, then the complainant will be at liberty to present the said cheques for encashment. The said statement of the accused dated 27.05.2002 is Ex. CW1/B. The accused argued in his defence that the said document is a fabricated document and the complainant had taken his signatures on certain blank papers which has been misused. The said argument of the accused was, however, not supported by any cogent evidence brought in his defence. A mere bald statement that the document is a forged or fabricated one, does not disprove the authenticity of the said document. Also, in view of section 92 of the Indian Evidence Act, no oral statement can be admitted to contradict the documentary evidence, which is a prima facie proof of the contents contained therein.
24. Moreover, the accused had given another statement dated 07.02.2003, which is Ex.
CW1/C. In the said statement the accused had specifically stated that due to certain financial problems faced by him, the cheque given by him to the complainant cannot be passed, and the accused had sought one month's time from the complainant. The accused had, accordingly, once again revalidated his previous cheque on the said date. The cheque in question bears the re-validation dated after the previous date of 29.06.2002 was cancelled by the accused. This document was also not disproved by the accused by any cogent evidence. Thus, the two statements amount to an admission of liability on the part of the accused. The signatures on the both the statements have not been disputed and as observed earlier, a mere statement of the accused that the complainant had taken signatures on blank paper does not disprove the contents of the said document under the eyes of the law, and the said arguments raised by the accused appear to be nothing but an afterthought. No prudent man would sign on a blank paper blindly and even if he does so, he does it at his own risk. Therefore, in view of the said statements, the cheque issued by the accused also stands duly proved.
02406R0552222003 -10-Anita Mehta v. Vinod Malik
25. The accused also took the defence that the legal demand notice was never dispatched to him. Now, the perusal of the legal demand notice shows that the said notice was dispatched on the correct address of the accused. The same address was also provided by the accused in his personal bond. The U.P.C receipt Ex. CW1/I and the A.D. Card Ex. CW1/J, is a clear evidence of the fact that the legal demand notice was duly served upon the accused. Moreover, in view of the presumption of law and also the settled position of law that once the notice is dispatched on the correct address of the accused, unless and until the contrary is proved by the addressee, service of the notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business (in judgment of C.C. Alavi Haji v. Palapetty Muhammed & Anr., 2007 Cr.L.J. (SC) 3214 : 2007 (7) SCR 326 (emphasis supplied)), it can be deemed that the notice was served upon the accused. In Parimal v. Veena @ Bharti, (2011) 3 SCC 545, where a similar controversy regarding the service of the notice was considered by the Apex Court, the court while quashing the order of the High Court and relying upon its previous opinion, observed that the respondent had not made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Also, not a single document had been summoned from the post office neither any attempt has been made by the respondent to examine the postman (emphasis supplied). In the present case also, mere denial of the accused of the receipt of the notice does not come as a good defence, unless the accused leads cogent evidence to prove the non-receipt of the said notice.
26. Further, the provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. In the present 02406R0552222003 -11- Anita Mehta v. Vinod Malik case as well, the onus was upon the accused to establish that he had already repaid the loan amount to the complainant or that the notice was not served upon him, but no cogent evidence was brought by the accused to prove the same.
27. Thus, the accused could not lead any evidence to rebut the liability in the present complaint. The deposition of the defence witness did not bring out any evidence in support of the accused and the statement of the said witnesses was fraught with ambiguities. The documentary evidence led by the accused also fell short of any rebuttal in support of the depositions of the accused. The entire story of the accused appeared to be an afterthought. On the other hand, the evidence filed by the complainant has sufficiently proved the liability of the accused in the present case. As held in various caselaws, the standard of proof on the part of the accused and that of the prosecution is different in a criminal. Whereas, prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he/she relies (cited from, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of Drum Manufacturing Co. v. Amin Chand Pyarelal (1993) 3 SCC 35, after analysing various judgments, the Apex Court observed that the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant (or the accused) can prove the non-existence of a consideration by raising a probable defence. Furthermore, in the recent judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) INSC 373 (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is a rebuttable presumption, even though this initial presumption lies in favour of the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally 02406R0552222003 -12- Anita Mehta v. Vinod Malik enforceable debt or liability, prosecution can fail.
28. Thus, the accused was not able to sufficiently rebut the presumption lying in favour of the complainant. The ambiguities, discrepancies and contradictions in the depositions of the accused at various places further weaken the defence of the accused. In view of the material on record, submissions of the Counsel for both sides, the admission by the accused of the signatures on the cheque in question as well as the prima facie evidence of the dishonour of the cheque in question for the reason "Funds Insufficient", the non- rebuttal of the receipt of the demand notice and, above all, the presumption of the law lying in favour of the complainant, I am of the considered view that the the ingredients for offence under section 138 of Negotiable Instruments Act stands proved and the complainant has proved its case beyond reasonable doubt as against the accused. Accused has clearly failed to rebut the presumption of law. Apart from not raising a probable defence, accused was also not able to contest the existence of a legally enforceable debt or liability. I, therefore, hold accused Vinod Malik, guilty of the offence under Section 138 of Negotiable Instruments Act. Accused is convicted.
File be consigned to record room after due compliance
Pronounced in open court. (Ms. ANKITA LAL)
Dated: 27.04.2002 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R0552222003 -13-
Anita Mehta v. Vinod Malik
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Anita Mehta
Prop. Gulshan Lease & Finance Corporation,
K-94, 1st Floor, Main Road, Masoodpur,
Vasant Kunj, New Delhi-110070.
. . . Complainant
Vs.
Vinod Malik
S/o Sh.Dalel Singh
R/o Village & Post Office Masoodpur,
Vasant Kunj, New Delhi.
. . . Accused
ORDER ON SENTENCE
Date: 30.04.2012
Present: Sh. Tej Pal Singh, Counsel for the complainant alongwith complainant in person.
Sh. Subhash Gupta, Counsel for the accused alongwith accused in person.
Accused Vinod Malik has been convicted for the offence punishable u/s 138 of N.I. Act vide judgment dated 27.04.2012. I have heard Ld. Counsel for complainant as well as Ld. Counsel for the accused on the sentencing of the accused.
Ld. Counsel for the accused submits that the accused is the sole bread earner of the family and a family to take care of. It is further submitted that the accused has small children look-after and is also liable to maintain his wife. It is further submitted that the accused has never been involved in any litigation in past and has absolutely clean antecedents. Ld. Counsel for the accused prays that considering the young age of the accused, his family background, his socio- economic status and the nature of the offence, and the fact that he was only a victim of the circumstances, a lenient view may be taken towards the accused and he be released on fine only.
02406R0552222003 -14-Anita Mehta v. Vinod Malik Ld. Counsel for the complainant has argued that great inconvenience and harassment has been suffered by the complainant in contesting the present complaint. A lot of expense has been suffered by the complainant in terms of money and time. It is also argued that the trial has stretched for more than 9 years and the complainant has suffered great hardship in prosecuting the present complaint. Ld. Counsel for the complainant also argued that the perusal of the record will also show that the accused has caused undue harassment to the complainant by not appearing in several dates and by using dilatory tactics during the course of the trial. It is further argued that since the cheque amount is also huge and also since the accused never made any efforts to compound the matter, therefore, it is prayed that stricter punishment be imposed upon the accused, so as to create a deterrent effect in such offences.
I have perused the record of this case and after considering the submissions of both the counsels, I am of the view that keeping in mind the age of the accused, his family background, his antecedents, the nature of the offence, facts of the present case, the conduct of the accused during the entire course of the trial and at the same time balancing the interests of both the parties, I deem it proper to impose a sentence of fine of Rs. 5,00,000/- upon the accused and a simple imprisonment for a period of four months. The entire fine shall be paid as compensation to the complainant. In default of payment of fine, the accused shall be liable to undergo a Simple Imprisonment of 1 month in addition to the substantive imprisonment.
Bail Bond of Accused Vinod Malik is cancelled. Surety is discharged. Endorsements, if any be cancelled. Documents, if any, be returned.
Copy of this order as well as the copy of judgment be given to the accused immediately, free of cost.
Pronounced in open court. (MS. ANKITA LAL)
Dated: 30.04.2012 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R0552222003 -15-