Delhi District Court
Ravi Kumar Sharma vs Savinder Kumar on 14 January, 2013
ID No.02406R0272382012
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 46/2012
ID No. 02406R0272382012
Ravi Kumar Sharma,
S/o Sh. Ram Ratan Sharma,
Managing Director of
M/s R. S. K. Paradising
Developers Pvt. Ltd
R/o B8, Raju Park,
Devli Road, Khanpur, New Delhi - 110062 ..........appellant
M/s R. S. K. Paradising Pvt
Developers Pvt. Ltd.
B1, Basement, PVR Road,
Saket, New Delhi
Versus
Savinder Kumar ,
s/o Sh. Jai Singh ,
r/o 572, Madanpur Khadar,
New Delhi 110076. ..........respondent no. 1
State ..........respondent no. 2
Instituted on : 31st October, 2012
Argued on : 14th January,2013
Decided on : 14th January,2013
O R D E R
1. This appeal is directed against the judgment dated 22.09.2012 passed by Ms. Ankita Lal Learned MM - 03 NI Act, South East, Saket, New Delhi in a complaint case (CC No.5605/1 ) under section 138 NI Act whereby appellant has been convicted u/s 138 Negotiable Instruments Act (hereinafter referred in short as NI Act) and vide order on sentence dated 01.10.2012 whereby a composite fine of Rs. 7,00,000/ is imposed upon appellants and Ravi Kumar Sharma/appellant no. 1 is sentenced to undergo simple imprisonment for a period of four months . In default of payment of fine, appellant no. 1 is further ordered to undergo simple Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6 ID No.02406R0272382012 imprisonment for one month.
2. I have heard submissions advanced by Sh. B. D. Tayyab , Learned Counsel for appellant and by Sh. Naresh Kumar, Learned Counsel for the respondent and have perused the record carefully.
3. In brief, case of the respondent/complainant is that he entered into two agreements (Ex. CW1/B) and Ex. CW1/C) with appellant no.1 on 14.03.2007 and 22.03.2007 respectively. Respondent/complainant book two plots of 100 sq. yards each in a future project at Rudrapur (Uttrakhand) and issued four cheques of Rs. One lac each as registration amount and first installment. Appellant no. 1 agreed to pay a 10% buyback of total preregistration @ Rs. 500/ per sq. yard in addition to the amount of Rs. Two lacs deposited as registration amount. Appellant no. 1 in discharge of his liability , issued two post dated cheques of Rs. 2,50,000/ each against each plot vide cheque bearing no. 506345 dated 18.08.2007 (Ex. CW1/D) and cheque no. 056344 dated 26.08.2007 (Ex. CW1/E). Both these cheques were drawn on Vijaya Bank, Malviya Nagar, New Delhi. Respondent/complainant deposited these cheques in Punjab & Sind Bank, Madanpur Khadar but the said cheques were dishonoured with the reason "Insufficient Funds" vide returning memos dated 21.08.2007 (Ex. CW1/F) and 26.08.2007 (Ex. CW1/G). Respondent/complainant approached appellant no. 1 who requested him to redeposit the cheques. Respondent/complainant redeposited the said cheques but these cheques were again dishonoured for the reason "Insufficient Funds". Cheque returning memo dated 13.09.2007 (Ex. CW1/H) was received by respondent/complainant. Legal notice dated 18.09.2007 (Ex. CW1/I) Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6 ID No.02406R0272382012 demanding payment of the cheques was sent through registered post and UPC and duly served upon appellant no.1 vide AD cards (Ex. CW1/J and Ex. CW1/K) but he did not make payment of the cheque amount. Respondent/complainant filed complaint under section 138 of NI Act, 1881 against the appellant on 25.10.2007 . On 29.10.2007 , summoning order was passed by the Ld. Trial Court. On appearance, notice under section 251 Cr. P. C was served upon appellant no. 1 on 02.02.2010. Respondent/complainant was examined and tendered his affidavit alongwith documents Ex.CW1/A, Ex.CW1/B to Ex.CW1/L. Respondent/complainant was cross examined on behalf of the accused and thereafter, evidence on behalf of the complainant was closed and the accused examined under section 313 Cr.P.C. In his defence, accused examined himself under section 315 Cr. P. C. as DW1.
4. Appellant admitted two buy back agreements entered into between him and complainant/respondent. According to appellant, the prices of said two plots were to be calculated at Rs. 5,000/ per sq. yard totaling to a sum of Rs. 5 lac for each plot. He admitted that complainant gave four cheques to him for Rs. One lac each, two chequs for one plot under one of the buyback agreements and other two cheques were for the other plot in respect of the other buyback agreement. He stated that out of said four cheques, only two cheques were dishonoured and remaining two cheques were dishonoured which was evident from the record of his bank account. According to appellant, respondent/complainant never paid the remaining cost of either of the plots i.e. Rs. three lacs for each plot. He stated that he was still ready to allot the plots to the complainant, if the complainant made the Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6 ID No.02406R0272382012 payment of remaining cost towards the plot. In respect of the cheques in question, accused admitted receipt of Rs two lacs from the complainant, given to him by way of two cheques which were honoured. Accused stated that cheques in question were given as security in respect of 'buyback agreement' and since the complainant failed to comply the terms of said two agreements as two of the cheques of the complainant were dishonoured and also the complainant did not come forward to make payment of the balance cost of the plots, therefore, no liability arises against him.
5. In cross examination, accused admitted that he had not placed any document on record to prove that he was the owner of any of the plots which he agreed to sell and transfer. Trial Court observed that no document to substantiate the said fact was produced by accused. In cross examination, accused admitted all the contents of 'buyback agreement' including the fact that in case the complainant did not wish to take the possession of his plot , accused shall be liable to pay a sum of Rs. Five lacs to the complainant in lieu of Rs. Four lacs given to him by the respondent/complainant
6. The defence taken by accused was that the cheques given for each agreement for first installment i.e. Rs. One lac in respect of each agreement were dishonoured, therefore, respondent/complainant had defaulted in payment and buyback agreement became applicable and became null and void and there was no liability against him to give a 10% buyback under the agreements and there was no default on the part of respondent/complainant and all the cheques given by him to the appellant no. 1(A2) were duly honoured. This Court is in agreement with the Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6 ID No.02406R0272382012 view of the Learned Trial Court that the defence taken by the accused has not been proved by leading any plausible evidence. Testimony of DW1 did not throw any light on the facts in issue involved and appellants failed to rebut the presumption under section 139 NI Act. On scrutiny of evidence led by the parties, this Court finds that the complainant has proved necessary ingredients of offence punishable under section 138 of NI Act and finds no defect or illegality in the impugned order. During the course of arguments, Learned Counsel for the appellants submitted that he was not challenging the conviction of the appellants u/s 138 NI Act. In view of the aforesaid reasons, conviction of the appellants u/s 138 NI Act is upheld.
7. Learned Counsel for the appellant submits that appellant is 53 years of age. He is not previous convict and no other case is pending against him. It is submitted that appellant is ready to pay the balance amount of compensation and that appellant is well settled in life and having two children. He prays that, in view of the circumstances, the Court may take a lenient view and submits that the sentence of four months awarded by the Trial Court be removed. Respondent/complainant Savinder Kumar, who is present in person also submits that he has no objection, if the Court takes a lenient view. Learned counsel for the appellant has prayed that the fine amount may be enhanced and appellant may be asked to pay to him fine imposed by this Court, at the earliest.
8. On considering the submissions made, having regard to the nature and circumstances of the case and the submission of the parties, I am of the considered view that now, no fruitful purpose would be served by sending appellant behind the bar and he should be given an opportunity to rehabilitate himself in the Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6 ID No.02406R0272382012 society. Therefore, keeping in view the totality of facts and circumstances, it is considered expedient to modify the sentence. Simple imprisonment of four months awarded by Learned Trial Court is done away with. It is ordered that the appellant shall now deposit a total fine of Rs. 7,80,000/. In default of payment of fine, appellant Ravi Kumar Sharma shall undergo simple imprisonment for a period of three months. The entire fine proceeds shall be payable to the respondent/complainant Savinder Kumar, as compensation. It is brought to the notice of the Court by the appellant that a sum of Rs.3,50,000/ has already been deposited by him before the Learned Trial Court, pursuant to the order of this Court at the time of admitting appeal on 31.10.2012. Learned Counsel submits that appellant has come prepared with the balance amount. He has handed over a demand draft bearing number 196337 for Rs.4,00,000/ drawn on State Bank of India and has paid Rs.30,000/ in cash to the respondent/complainant Savinder Kumar before the Court. Rs. 3,50,000/ deposited by the appellant before the Trial Court is ordered to be released to the complainant/respondent Savinder Kumar , at the earliest.
9. Conviction of the appellant/accused persons u/s 138 NI Act is confirmed and sentence stands modified in terms noticed above. Appeal stands disposed of accordingly. Trial Court record be sent back along with a copy of this order. Appeal file be consigned to record room.
announced in the open court on 14th January ,2013. (VINAY KUMAR KHANNA) Additional Sessions Judge04 (SouthEast) Saket/New Delhi Ravi Kumar Sharma and ors. Vs Savinder Kumar and ors. CA No. 46 of 2012 6/6