Delhi District Court
Tarun Gupta vs . on 6 January, 2007
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IN THE COURT OF SH. SANJIV JAIN : ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS : SHAHDARA,
DELHI
TARUN GUPTA
VS.
KAMAL GOEL
P.S. : Anand Vihar
U/S : 138 OF N.I. ACT
JUDGMENT
A) THE SL. NO. OF THE CASE : 438/03
B) THE DATE OF COMMISSION
OF OFFENCE : 07.06.2003
C) THE NAME OF THE COMPLAIN-
ANT : Sh. Tarun Gupta
S/o Sh. H.R. Gupta
R/o C-41, Gali no. 6,
Rajgarh Colony, Jheel,
Delhi - 110 031
D) THE NAME AND PARANTAGE
OF ACCUSED : Kamal Goel
S/o Late H.K. Goel
R/o 17-C/1364 HUDA,
Gurgaon, Haryana
E) THE OFFENCE COMPLAINED of : 138 of N.I. Act F) THE PLEA OF THE ACCUSED : Pleaded not guilty G) THE FINAL ORDER : CONVICTED H) THE DATE OF SUCH ORDER : 06.01.2007 I) THE BRIEF STATEMENT OF REASONS FOR DECISION :- 2
1. Sh. Tarun Gupta filed a complaint against Kamal Goel alleging therein that the accused had borrowed Rs. 2,00,000/- from him after executing the promissory note in his favour. On 7.6.03 he issued a cheque vide no. 939441 in discharge of his liability which on presentation was returned unpaid on account of " Insufficient Funds" on 13.6.03. On 16.6.03 he got sent legal notice of demand which he got sent through AD and UPC but despite that accused did not make the payment and thus committed an offence punishable U/s 138 N.I. Act.
2. On 25.7.03 the Affidavit was tendered by the complainant in evidence. After going through the evidence and arguments the Predecessor of this Court took cognizance of offence and summoned the accused for offence punishable U/s 138 /142 of N.I. Act.
3. On his appearance after supplying the copies of the complaint, notice was served upon the accused for offence punishable U/s 138 of N.I. Act, he pleaded not guilty and claimed trial.
4. To prove its case complainant tendered his evidence by way of affidavit wherein he reiterated the facts as alleged in the complaint. He proved the cheque Ex. Cw1/A, return memo Ex. Cw1/B, the promissory note Ex. Cw1/C executed by the accused against receipt of 2 loan, legal notice Ex. Cw1/D and its postal receipts Ex. Cw1/E and F. In cross-examination he denied the suggestion that the loan was taken by the accused from his parents. However, he admitted that he had received Rs. 2000/- out of the total amount of Rs. 2,00,000/- against the cheque.
5. Accused was examined U/s 281 CrPC wherein he stated that he had given the cheque to the father of the complainant in the year 1989 which was blank and his father also obtained his signature on the promissory note which was also blank. He stated that he had borrowed Rs. 2,00,000/- out of which he had paid Rs. 75,000/- and has to pay Rs. 1.25 lacs. He stated that he intends to make the payment of the dues to the complainant, however, due to business losses he could not pay the same . Despite opportunity given he did not examine any witness in his defence.
6. I have heard the arguments advanced at BAR and perused the documents and the evidence on record.
7. It was held in Goa Plast (P) Ltd. V. Chico Ursula D'souza JCC (NI) 305 Supra :-
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" that the object and the ingredients under the provisions, in particular, Section 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defat the genuine claim of the payee." Sections 138 and 139 of N.I. Act were enacted to create an element of credibility and dependability which provide criminal remedy of penalty if the ingredients of the Sections are satisfied.
8. It was held in Hiten Dalal's case III (2001)ccr 43 (SC) 2 "The words ..... 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by "proof" and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provisions cannot be said to be rebutted....."
9. In the instant case the accused did not dispute that he had borrowed Rs. 2 lacs from the complainant. He has also admitted that he had issued the cheque Ex. Cw1/A and signed the promissory note Ex. Cw1/C. The bank return memo Ex. Cw1/B shows that the cheque on presentation was dishonoured on account of insufficient funds. The complainant got sent legal notice of demand Ex. Cw1/D which was served upon the accused but despite that accused did not make the payment. The promissory note produced by the complainant finds mention that the accused had promised to pay the amount of Rs. 2 lacs to the complainant Tarun Gupta.
10. Though the accused in his statement stated that he had paid Rs.
75,000/- to the complainant but he is not in possession of any 2 document to show that he had paid the said amount to the complainant who has denied to have received the said payment. Further the accused has stated that he intends to make the payment to the complainant. Further nothing substantial came in the cross- examination of the complainant to show that the accused does not owe any liability and the cheque in question was not issued for consideration.
11. From the documents as well as from the testimony of the complainant it is proved that accused had to pay the dues of the complainant and against that he had issued the cheque which on presentation was dishonoured and despite legal notice he did not make the payment and thereby committed offence punishable U/s 138 of Negotiable Instruments Act.
12. In view of the above discussions I hold the accused Kamal Goel guilty and convict him of the offence punishable U/s 138 of Negotiable Instruments Act.
Announced in open court on this 06th day of January, 2007.
(SANJIV JAIN) Addl. Chief Metropolitan Magistrate Karkardooma, Shahdara, Delhi.
2IN THE COURT OF SH. SANJIV JAIN : ADDITIONAL CHIEF METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS : SHAHDARA, DELHI TARUN GUPTA VS.
KAMAL GOEL P.S. : Anand Vihar U/S : 138 OF N.I. ACT ORDER ON SENTENCE
1) Vide separate judgment accused Kamal Goel has been convicted of offence punishable U/s 138 of Negotiable Instruments Act.
2) I have heard the accused on the point of sentence. It is submitted by the accused that he belongs to a respectable family with clean antecedents. He has faced trial in this case for about four years. He states that at present he has not been earning and is fully dependent onh is family. He states that he has orthopeadics problem and cannot work. He further states that his financial condition is extremely poor and can pay the amount by way of installments @ of Rs. 1000/- per month. He states that seeing his pathetic condition he be released on probation.
3) Ld counsel for the complainant on the contrary has submitted that the accused has a liability of about Rs. 2,00,000/- He had been given time again and again to repay the loan amount but he does not have intention to pay though he is financially competent.
4) I have carefully considered the submissions. It is well settled proposition that the proper and smooth functioning of all transactions, particularly of cheques, primarily depends upon the integrity and honesty 2 of the parties. In our country in large number of transactions, cheques are issued merely as a device not only to stall but even to defraud the creditors. It causes incalculable loss, injury and inconvenience to the payee and entire credibility of the transactions suffers a serious set back.
5) In this case the complainant has suffered mental agony during trial with no fault of his. The complainant had given the loan of Rs. 2,00,000/- to the accused who is also related to him in order to help him. But the accused despite repeated demands did not make the payment which forced him to file the present case. In these circumstances I do not consider to release the accused on probation.
6) Having regards to his antecedents after considering the facts and circumstances of this case, I sentence the accused to go simple imprisonment for a period of six months and to pay Rs. 2,00,000/- (Rupees Two lacs only) as compensation to the complainant in terms of fine in default he is sentenced to simple imprisonment for a period of 6 months. File be consigned to record room.
Announced in open court on this 09th day of January, 2007.
(SANJIV JAIN) Addl. Chief Metropolitan Magistrate Karkardooma, Shahdara, Delhi.