Delhi District Court
Asha Gupta vs Manju Rohida on 4 July, 2011
IN THE COURT OF SHRI LOKESH KUMAR SHARMA : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
Asha Gupta vs Manju Rohida
Date of Institution of case:29.10.2003
Date on which judgment is reserved:02.07.2011
Date on which judgment is delivered:02.07.2011
Unique I.D. No. 02402RO307662003
J U D G M E N T
a) Sl. no. of the case : CC No.682/03
b) Date of commission of offence : 19.10.03 (Approx)
c) Name of complainant : Asha Gupta
B339,Ashok Nagar,
New Delhi110093
d)Name of accused, her parentage : Manju Rohida
N15, A3,Dilshad Garden,
Delhi110093
e) Offence complained of or proved : U/S:138 N.I. Act.
f) Plea of the accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : 02.07.2011
CC No. 682/03 Page 1 of 11 pages
j) Brief reasons for the just decision of the case:
1. The accused was stated to be well known to the complainant and as such the accused had approached for a friendly loan of Rs.2,80,000/ from her and which was accordingly paid to her by the complainant on 21.04.03. In discharge of her aforesaid liability, accused had issued her a cheque no. 730575 dated15.06.2003 drawn on State Bamk of India, Seema Puri, Delhi95. The aforesaid cheque on its presentation got dishonoured due to 'Insufficiency of funds' in the account of the accused vide returning memo dtd. 15.09.03. Thereafter, complainant sent a legal notice of demand to the accused on 29.10.03. However, it was the case of the complainant that despite service of notice upon accused which was sent to her by way of registered post as well as UPC, neither she had made the payment of the cheque amount within the stipulated period of 15 days as available to her under the law nor she had bothered to send any reply to the aforesaid notice and as such the present complaint was filed praying therein that accused be summoned, tried and punished for an offence under section 138 N. I. Act.
CC No. 682/03 Page 2 of 11 pages
2. Complainant had adduced her presummoning evidence on record and after taking into consideration the said pre summoning evidence, the complaint itself as well as the documents placed and proved on record by the complainant, learned predecessor of this court was pleased to take cognizance for an offence under Section 138 N. I. Act against the accused and she was summoned to face trial in this case.
3. Accused was duly served with the summons and she had also appeared to contest the case on its merits. Notice of accusation under Section 251 Cr.P.C was served upon accused on 06.10.2008 to which she had pleaded not guilty and claimed trial.
4. In order to prove her case, complainant appeared in the witness box as her sole witness and filed in evidence, her examination in chief by way of affidavit Ex. C1, wherein, besides reiterating the factual contents of the complaint on solemn affirmation, complainant had also proved on record the following documents.
"Cheque forming subject matter of the present complaint is Ex. CW1/1, memos of CC No. 682/03 Page 3 of 11 pages dishonour as Ex. CW1/2&3, copy of legal notice is Ex. CW1/4, and postal receipt Ex. PW1/5 as well as UPC Ex. PW1/6.
5 Despite opportunity given, accused had failed to cross examine the complainant.
6. Thereafter CE was closed. Later on an application under Section 311 Cr.P.C. was filed which was dismissed by this court. Revision petition preferred by the accused before learned District Judge cum ASJ Incharge North East District was initially allowed subject to cost of Rs.1500/ vide orders dated 02.12.2009 and she was granted only one single opportunity to cross examine the witness which she had failed to avail and thereafter her right to cross examine the complainant was closed against which an another application under Section 311 Cr.P.C. was preferred which was dismissed by this court and revisions preferred by the accused against the aforesaid orders before learned District Judgecum ASJ Incharge as well as before Hon'ble High court were dismissed and the aforesaid order became final hence testimony of complainant had remained unchallenged and unrebutted.
CC No. 682/03 Page 4 of 11 pages
10.Statement of the accused under section 313 Cr.P.C was recorded and the entire incriminating evidence appearing against her on record was put to her to which she had denied as fasle and incorrect and stated that since daughter of complainant had stolen her cheque in connivance with her husband, hence later on it was manipulated and misused by the complainant to extort money from her. The accused had sought an opportunity to adduce DE. However, no DE was adduced on record despite several opportunity availed in this regard but at the stage of final arguments, learned counsel for accused had filed written arguments in the form of written statement as filed in civil cases denying each and every part of the complaint. Reliance is also been placed by her on the following citations:
1. Krishna Janardhan Bhat vs Duttatraya G. Hegde reported in 2008 (1) RCR (Criminal) 695 wherein it has been held that once the complainant had failed to prove his worth regarding the money alleged to have been advanced by him to the accused then dismissal of the complaint was held justified.
2. Similarly reliance has also been placed on the reported judgment in case titled as M.D. Thomas vs P.S. Jaleel reported in 2009 (3) Criminal Court Cases 859 (SC) wherein it has been held that the notice of demand served upon the wife of the CC No. 682/03 Page 5 of 11 pages accused was held to be insufficient service of notice.
3. Ram Prasad Sahu vs Pandey Giri and Another 2010(1) (RCR) (Jharkhand High Court) 165 wherein it was held that where the registered envelope was received back with the report of refusal and upon failure on the part of complainant to examine the postman, the acquittal of accused was held justified for want of service of proper notice.
4. Jose vs P.C. Joy, RCR 2008(4) RCR 251 (Kerala High Court), wherein it was held that where the accused had filled the entire particulars of the cheque without filling the name of the drawee which was written by the complainant in his own handwriting without instructions from the accused in this regard then the acquittal of accused was justified.
11.However, it is respectfully submitted that ratio of none of the cases is applicable to the facts of the present case as no question has been put to the complainant regarding her financial capacity. Furthermore, it is not the case of the accused that notice was not CC No. 682/03 Page 6 of 11 pages served upon her but on some other member of her family. So far as service of notice is concerned there is only a bald denial on the part of the accused during her examination under Section 313 Cr.P.C. and no question had been put in this regard to the complainant in her cross examination. Similarly, it is not the case of the accused that complainant was obliged to fill her name only after taking instruction from her in this regard. Similarly the ratio laid down in the last judgment cited and relied upon by her is also not applicable to the facts of the present case rather perusal of the cheque reveals that same had been filled and signed with one and the same ink. Hence, it does not remain in the mouth of the accused to agitate this fact at this stage.
12.Even if it is assumed and presumed for the sake of arguments that daughter of complainant in connivance with her husband had stolen the cheque of the accused then she had also failed to furnish a satisfactory explanation on record as to why she had not taken any action against the aforesaid act and misdeed of her and had not informed the police nor she had preferred any civil or criminal case before the court of competent jurisdiction.
CC No. 682/03 Page 7 of 11 pages
13. In view of my aforesaid discussion, I have no hesitation in holding that on the one hand complainant has been able to prove her case against the accused beyond all reasonable doubts whereas accused has miserably failed to set up even a probable defence in her favour either by adducing her own independent evidence on record or by elucidating such facts either from the cross examination of the complainant's witness or from the attending circumstances of this case which would have invariably pointed out towards her innocence. Hence accused has not been able to rebut the presumptions under section 118 and 139 N. I. Act existing against her as a result of which, case of the complainant stands proved against the accused beyond any reasonable doubt and accused is held guilty and convicted for an offence under section 138 N. I. Act. Let she be now heard on quantum of sentence.
(ANNOUNCED IN OPEN COURT ON 02.07.2011) (LOKESH KUMAR SHARMA ACMM/02, NORTH EAST, KARKARDOOMA COURTS :
DELHI CC No. 682/03 Page 8 of 11 pages IN THE COURT OF SHRI LOKESH KUMAR SHARMA : ACMM/ NORTH EAST, KARKARDOOMA COURTS, DELHI.
Asha Gupta Vs. Manju Rohida CC No.682/03 Unique I.D. No. 02402RO307662003 4.7.2011:
Present: Complainant in person.
Convict in person with counsel Shri Mukesh Sharma. Vide my separate judgment passed on 2.7.2011 , accused was held guilty and convicted for an offence under section 138 N. I. Act. Case is fixed today for advancing arguments and orders on quantum of sentence.
Complainant submits that it is a 8 years old case, hence accused must be punished with the fine to the extent of double of the cheque amount and suitable sentence in the form of imprisonment should also be awarded to her.
Ld. defence counsel appearing for the accused on the other hand has submitted that accused is an old person aged about 60 years. She is a widow and is diabetic patient. Hence leniency be shown towards her.
After hearing both the parties, I am constrained to observe here that although Section 138 Negotiable Instruments Act constitutes an offence but it is a benevolent provision of law brought into statue book with the sole legislative intention of reposing the faith of general public in the sanctity of negotiable instruments. In order to give high credibility to the negotiable instruments such as cheques, promissory notes etc and with a view to ensure deterrence for the people committing frequent defaults in honouring their commitment by getting the negotiable CC No. 682/03 Page 9 of 11 pages instruments dishonoured, initially an imprisonment of one year was prescribed coupled with the fine up to the double of the cheque amount. However since the fruitful results were not yielded, hence the said punishment was found insufficient and by a latter amendment, it was enhanced up to imprisonment of either description up to two years coupled with the fine which may go up to twice of the cheque amount. Hon'ble Supreme Court in a recent judgment has held that courts must award compensation to the complainant so as to reduce his pains and miseries. Although the aforesaid directions issued by hon'ble superior courts have been issued to further strengthen the noble legislative intent behind incorporation of this Section of the general public welfare so that business, trade as well as economy gets a boost from the confidence reposed by the public in the credibility and authenticity of the negotiable instruments.
However, it is a sorry state of affairs to observe that cases of this nature are occupying the board of courts in large numbers every day. Instead of sending a message of deterrence to the public to refrain itself from indulging into such practices, the public is rather encouraged to get the cheques frequently dishonoured and thereafter refuse to make their payment to the persons entitled to receive their legitimate dues thereby compelling them to knock the doors of justice which is always delayed and hence, impliedly denied to them as well. This results into further enhancement of pain and sufferings of complainant who is compelled to wonder in the corridors of justice for years and some times he is even compelled to agree to the offers made by clever accused persons to make payment of a lesser amount than their legitimate dues and that too, in piece meal in the form of petty installments. The situation can only be CC No. 682/03 Page 10 of 11 pages changed if courts of law come to the rescue of complainant and start awarding severe punishments which would send a deterring message among the law violators to avoid such litigations rather to prolong the same for years.
I am of the opinion that interest of justice shall be served if accused is awarded adequate sentence . Accordingly I am of the opinion that interest of justice shall be best served if convict is awarded sentenced to undergo simple imprisonment for a term of six months and is also sentenced to pay a fine of Rs.5,60,000/ (double of the cheque amount) which shall be paid to the complainant as compensation. In case of default in payment of fine accused shall have to further undergo SI for six months and same shall be recovered from her as arrears of land revenue. Copy of the judgment and order on sentence be supplied to the convict free of costs.
ANNOUNCED IN OPEN COURT ON 04.07.2011) (LOKESH KUMAR SHARMA) ACMM/02, North East, KKD COURT : DELHI CC No. 682/03 Page 11 of 11 pages