Delhi District Court
C.P. Madan vs Kailash Chander Hola on 29 January, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
Criminal Appeal No.: 392/2017
C.P. Madan
S/o Late P.R.Madan
R/o Flat no. 783,
Air Force & Naval Officer CGHS Ltd.
Plot No.11, Sector 7, Dwarka,
New Delhi110075. .... Appellant/accused
Vs
Kailash Chander Hola
S/o Sh. Kundal Lal Hola,
R/o 5128/B2, Vasant Kunj,
New Delhi110070. .... Respondent
Appeal u/s 374(3) Cr.P.C. against the judgment of
conviction dated 15.01.2013 and order on sentence
dated 01.07.2017 passed by Ld. MMs
Date of Institution : 30.11.2017
Arguments heard on : 17.01.2018
Date of Judgment : 29.01.2018
CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 1 of 10
JUDGMENT
1. First appeal u/s 374(3) of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been preferred by appellant/accused against impugned judgment of conviction dated 15.01.2013 passed by Trial Court of Ms. Swati Katiyar, Ld. MM05, Negotiable Instruments Act, Dwarka Courts, New Delhi and sentence dated 01.07.2017 passed by Trial Court of Sh. Abhishek Kumar, Ld MM (NI Act)04, in CC no.3373/12, titled K.C.Hola Vs. C.P.Madan.
2. Vide impugned judgment, the Magisterial trial court has held the appellant/accused guilty of the offence u/s 138 Negotiable Instruments Act, 1881 (in short N.I.Act). Vide impugned sentence, the Magisterial trial Court has sentenced the convict to simple imprisonment for a period of one year and to pay a compensation of Rs.2,50,000/ (double the cheque amount in question) alongwith with litigation expenses of Rs.25,000/ to the complainant and in default of payment of compensation to the complainant, convict shall further undergo simple imprisonment for a further period of six months. CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 2 of 10
3. I have heard appellant through Sh. Mayank Sharma, Ld. Legal Aid Counsel and respondent through Sh.Amir Yadav, Ld. Counsel. I have perused the record of appeal and of Trial Court. I have given my thoughtful consideration to the contentions put forth.
4. Appeal rests upon the premise that cheque in question was given in court to respondent as in case of its dishonor, the defence of the appellant would be closed, so the cheque was without consideration and appellant had no legal liability for it. Also, it was contended that no independent witness was examined to prove the case. Also was argued that Trial Court erred in impugned judgment and sentence by ignoring innocence of appellant, the material discrepancies in testimony of witnesses and conviction of appellant is illegal, contrary to law. It has been prayed that impugned judgment and order on sentence be set aside.
5. It is admitted case of appellant/accused that he issued the cheque in question bearing no. 411615 dated 20.10.2010 for Rs.1,25,000/ to respondent during court proceedings before Ld. Additional District Judge, Dwarka, where civil suit bearing no. 226/10 CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 3 of 10 titled as K.C.Hola Vs. C.P.Madan for possession and recovery was pending for adjudication. Said cheque was admittedly issued for payment of arrears of rent. Relationship of appellant with respondent was admittedly of tenant and landlord and appellant had used the tenanted premises whose owner and landlord was the respondent. In answer to notice u/s 251 Cr.P.C., the appellant had admitted that cheque in question was issued by him towards arrears of payment of rent but therein he had denied of receipt of legal notice from respondent/complainant.
6. The defence taken in appeal with respect to cheque being without consideration falls flat on the ground. Accordingly, as it does not lie in the mouth of appellant now to simplicitor claim that cheque in question was given in court by the appellant to respondent landlord that in case of dishonour of cheque, only defence of appellant would be closed in the civil case.
7. Deposition of respondent complainant in Trial Court as CW1 not only establishes the relationship of tenant landlord between the CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 4 of 10 parties to the lis but also proves issuance of cheque Ex.CW1/A against legal liability of payment towards arrears of rent due and payable by appellant to respondent landlord. Legal notice Ex.CW1/C was not only sent by post vide postal receipt Ex.PW1/D but also through courier vide receipt Ex.PW1/E. The following paragraphs of impugned judgment read as under: "22. Thus once the cheque has been returned unpaid by the bank for whatever reason and the accused has failed to make the payment of the same within 15 days of receipt of notice, the offence shall be attracted and for that purpose, it matters little if the cheque was returned unpaid due to alteration in the instrument.
23. Further copy of cheque return memo included in Ex.CW1/H, clearly shows that the cheque in question was returned unpaid on 21.10.2010 due to sufficient funds. In addition thereto, CW3 in his examination clearly states, "It is correct that the account maintained by Sh. Chander Prakash Madan for the period 01.10.2010 to 30.04.2011 is having maximum balance amount of Rs.5910.93 as on 20.10.2010. No other entry exceeding this amount appears in the record". Thus from the deposition of CW3 and statement of account of the accused Ex.CW3/1, it can be clearly seen that the account of the accused never had enough funds to honor the cheque in question issued by the accused. So, even if there were no cuttings or alteration on the cheque in question, the same would never have been honored on presentation. Accordingly, the second ingredient also stands proved against the accused.
24. Now, coming to the third and last ingredient viz. Non payment of cheque amount within 15 days of receipt of written notice, accused has denied vehemently that the legal notice Ex.CW1/C was served upon him. Perusal of the record shows that the legal notice contains the address of the accused as Flat no. 483, AFNO CGHS Ltd., Plot CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 5 of 10 no. 11, Sector 7, Dwarka, New Delhi75. This address has not been disputed or denied by the accused. In fact the bail bond furnished by the accused on 20.08.2011 also mentions the same address. Thus, the address of the accused as stated above is not in dispute."
8. Examination of independent witness(es) is not a sine qua non to prove the commission of offence u/s 138 of N.I.Act, against the appellant. It is not the quantity but the quality of evidence that matters and it is to be established and proved by the complainant that necessary ingredients of offence u/s 138 of N.I. Act have been proved beyond reasonable doubt.
9. At no stage of the matter or before institution of the case but later to dishonour of cheque, no effort had been made by the appellant to make the payment of the cheque in question to the respondent landlord despite admitted liability of arrears of rent payable by appellant tenant to respondent landlord. Having enjoyed the tenanted premises and later on having issued the cheque in question it was bounden duty of the appellant to make the payment of the rent of the tenanted premises for which cheque in question was issued. Bounden duty was not done by the appellant. Appellant tenant cannot cry hoarse by alleging wrong CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 6 of 10 done to him when he himself is on the wrong foot having not discharged his liability with respect to cheque in question. No fault can be found in the impugned judgment of the Trial Court wherein the Trial Court has rightly held by invoking section 27 of General Clauses Act for raising the presumption of service of notice upon the appellant and subsequent non payment of cheque amount of dishonoured cheque to respondent landlord by appellant tenant.
10. In the impugned judgment Ld. Trial Court held that the defence of the accused qua non service of notice was without any force as despite service of process of the court, appellant did not pay the cheque amount within 15 days of service of summons of the court in terms of the law laid down in case of C.C. Alvi Haji V. Palapetty Muhammed & Anr. 2007 STPL(DC) 952 SC.
11. Accordingly, the impugned judgment is not suffering from any infirmity, illegality or impropriety and the appeal is bereft of any cogent ground to set aside the same. Conviction of the appellant for offence u/s 138 N.I.Act is well founded and cannot be set aside or disturbed. CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 7 of 10
12. In the course of arguments it had also been argued that the appellant was an old person, having no resources to pay the compensation amount and is incarcerated since the date of order of sentence i.e., on 01.07.2017.
13. Impugned order on sentence of Trial Court also finds mention that after the date of conviction i.e., 15.01.2013, the appellant did not appear on 17.01.2013 and later for hearing on sentence. Resultantly Trial Court declared appellant/accused as absconder on 18.05.2013. After more than 4 years, the appellant/accused could be apprehended in the month of June'2017. The conduct of appellant/accused with regard to non appearance in the court after conviction for hearing and pronouncement of sentence had been taken note of in awarding the sentence.
14. The tenancy of premises in question could have been determined by the appellant/accused in the event of non availability of funds by him and appellant could have delivered the vacant and peaceful possession of the tenanted premises to landlord respondent, if CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 8 of 10 at all it was the case of lack of sources for making payment of rent by appellant. Nothing of the sort was done. Appellant/accused/tenant continued to enjoy tenanted premises and only in the course of civil litigation had delivered the cheque in question towards payment of arrears of rent which also was dishonoured inter alia for insufficiency of funds. Landlord/owner/respondent was made to run pillar from post to recover his legally recoverable dues of arrears of rent from tenant/appellant. Even when landlord/respondent was successful on conviction of appellant/accused; then also appellant/accused did not observe his duty by appearing for hearing on sentence but instead chose to abscond. Only later to 4 years of judgment of conviction, appellant/accused could be apprehended. The sentence of simple imprisonment of one year alongwith compensation of Rs.2,50,000/ i.e., double the cheque amount with litigation expenses of Rs.25,000/ and in default of payment of compensation simple imprisonment of 6 months, in the present set of facts, cannot be said to be harsh at all. Per contra, the sentence appears to be just and reasonable. Lest wrong message will be conveyed to the society at large that such unscrupulous CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 9 of 10 litigant tenants can evade course of justice, abscond and not at all pay their legally recoverable debt of arrears of rent despite enjoying tenanted premises and not handing over back possession of such premises in case they had any kind of inability to pay its rent.
15. Necessary conclusion is that I find the appeal devoid of merits, lacking substance. Appeal is dismissed.
16. Trial court record be sent back to concerned Magisterial Court with copy of this judgment for necessary action. Copy of this judgment be sent to appellant/accused/convict/tenant through concerned Superintendent Jail. File of appeal be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 29.01.2018 ASJ 05/SW/DWARKA COURTS,
NEW DELHI (sc)
CA No 392/2017 C. P. Madan Vs. Kailash Chander Hola Page 10 of 10