Delhi District Court
Ashok Aggarwal vs . M/S Kuldeep Enterprises Etc. on 30 April, 2013
Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE-03, N. I. Act, CENTRAL, DELHI
CC No. 1808/11
Mr. Ashok Aggarwal
Proprietor
M/s Snow Track India,
44/1, West Guru Angad Nagar,
Opposite Radhu Palace Cinema,
Lakshmi Nagar, Vikas Marg,
Delhi-110092.
....................Complainant
vs.
1. M/s Kuldeep Enterprises,
F 27-28, Gokhale Market,
Opposite Tis Hazari Court,
Delhi-110006.
2. Mr. Kuldeep
Proprietor M/s Kuldeep Enterprises,
F 27-28, Gokhale Market,
Opposite Tis Hazari Court,
Delhi-110006.
............................Accused
The offence complained of : u/s 138 NI Act
The plea of the accused : not guilty
Final order : Convicted
Date of institution of complaint : 09.10.2009
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
Date on which reserved for judgment : 26.03.2013
Date of pronouncement of judgment : 30.04.2013
JUDGMENT:
1. Vide this judgment this court shall dispose of the present complaint u/s 138 Negotiable Instruments Act 1881 filed by the complainant against the accused.
2. Brief facts stated in the complaint are that the complainant Mr.. Ashok Aggarwal, is the proprietor of M/s Snow Track India and is having its office at 44/1, West Guru Angad Nagar, Opposite Radhu Palace Cinema, Lakshmi Nagar, Vikas Marg, Delhi-110092 and is engaged in the business of manufacturing and selling batteries. Accused No. 2, Mr. Kuldeep is the proprietor of M/s Kuldeep Enterprises, Accused No. 1 and is engaged in the business of trading. On the basis of assurances, accused purchased and the complainant supplied the goods namely batteries of different makes from time to time to the accused against various invoices in total amounting to Rs. 16,56,202.50, which were received by the accused and utilized in its business. Accused dishonestly and fraudulently induced the complainant, to deliver the batteries which were supplied by falsely representing that the payment of said batteries will be made within a period of 60 days. The Page 2 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. Invoices are ExCW1/1, Ex.CW1/2, Ex.CW1/3, Ex.CW1/4 and Ex.CW1/5. The accused did not make payment of the batteries even after the expiry of the 60 days. Complainant vide its letter dt. 25.7.2009 called upon the accused to make payment of the abovesaid amount within a period of 7 days of the receipt of the said letter. After receipt of the said letter the accused contacted the complainant and after much persuasion by the complainant, the accused issued a cheque on 30.7.2009 for an amount of Rs.5,00,000/- drawn on Punjab National Bank, Ghokhale Market, Delhi-110006 against part payment of the total amount due. The abovesaid cheque Ex.CW1/9 was returned unpaid with the remarks "Cheque Irregularly Drawn". The cheque returning memo are ExCW1/10 & ExCW1/11. On receipt of dishonored cheque the complainant approached the accused and demanded the cheque amount but the accused refused to pay the cheques amount. Thereafter, complainant sent a legal demand notice dt.17.01.2006 through his counsel by Regd.AD / UPC. The legal demand notice is ExCW1/12 and postal receipts are ExCW1/13 to ExCW1/16. On failure of the accused to make the payment within the stipulated period, the present complaint was filed.
3. After hearing the arguments on summoning, sufficient grounds were Page 3 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. made out against the accused u/s 138 NI Act and process was issued against him. On his appearance, the accused was admitted to bail on 11.01.2011.
4. Notice U/s 251 Cr.P.C was served upon the accused on dt.01.03.2011 to which the accused pleaded not guilty and claimed the trial.
5. Complainant examined himself in his evidence and he adopted his pre summoning affidavit as the post summoning affidavit, where he reiterated the same facts.
During the cross examination he deposed that he has been dealing in batteries for the last four to five years under the name and style of Snow Track India. His firm is registered with the sales tax authority and accordingly he has been paying the sales tax on the invoices placed by him to the concerned authority. It is correct that Sh. M. K. Khanna of M/s Sun Shine Batteries had introduced him to the accused. He does not remember when Mr. M. K. Khanna had introduced him to the accused. It is wrong to suggest that he was introduced in the month of January 2009. It is wrong to suggest that the accused had told him that he wished to purchase approximately 900 batteries. It is wrong to suggest that at that time it was Page 4 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. not decided that a sixty days credit would be given on the purchase of batteries. It is wrong to suggest that in January 2009, he had requested the accused to hand over a blank cheque as there would be dealing of large quantity of batteries. No written purchase order were made by the accused. However all the orders were verbal. It is wrong to suggest that the accused on 31.01.2009 had placed an order for 300 batteries. It is correct that the accused had placed an order for 142 batteries on 11.02.2009 and 56 batteries on 14.02.2009 and 84 batteries on 17.02.2009. He can not say if the accused had also placed an order for 228 batteries on 17.02.2009 or 46 batteries on 21.02.2009. It is correct that he had sold batteries worth Rs.14,00,900/- to the accused. Voluntarily stated, after adding the tax the total value came to Rs. 16,56,202/-. He maintains regular books of account, bill books, cash book and ledger etc, during the course of his business. His firm also files income tax return as well as sales tax return. He has not filed any sales tax return on the record of present case. It is correct that the invoice no.2188, 2189, 2190, 2191 and 2192 do not bear the signatures or receiving of the accused. At the time of delivery of batteries he had obtained receiving from the accused. The said challans have not been filed on record. The sales tax of aforesaid invoices was not deposited with the concerned authority as excess tax had already been paid and an adjustment was Page 5 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. sought against these invoices from the concerned authority. The aforesaid five invoices are duly reflected in the Sales Tax Return filed by him. He does not remember the date, month or year, when the Sales Tax Return was filed by him. It is wrong to suggest that no tax has been paid or deposited by him against the aforesaid invoices. It is wrong to suggest that no tax has been paid or deposited by him against the aforesaid invoices. It is wrong to suggest that the invoices no.2188, 2189, 2190, 2191 and 2192 are forged and fabricated and have been manufactured after issuance of the notice u/s 138 NI Act. After the receipt of letter dt.25.07.09, the accused contacted him telephonically. The letter dt.25.07.2009 was sent through courier vide receipt ExCW1/7. It is correct that the name and address of the accused is not mentioned on the exCW1/7. It is wrong to suggest that the letter ExCW1/6 was never sent to the accused nor received by him. It is wrong to suggest that because the said letter was never received by the accused the cheque in dispute was not issued subsequently. The accused had called him to his office and handed over to him. At that time nobody except him and the accused were present. The accused had called him to his office to make the payment. He does not know who had filled in the details in the cheque as the same was not filled in his presence and was handed over to him duly filled. It is wrong to suggest that the accused had handed Page 6 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. over the cheque without filling the name of the payee and the date on the cheque ExCW1/9 and that the same was filled by him. It is wrong to suggest that the cheque was given to him by the accused in the month of January 2009 as security and without filling the name of the payee and the date in the presence of Mr. M. K. Khanna. It is wrong to suggest that the accused had paid a sum of Rs.4 lacs on 10.02.2009, Rs.1 Lac on 17.02.2009, Rs.2 Lacs on 26.02.2009 and Rs.1 Lac more. It is further wrong to suggest that the accused had paid a sum of Rs.450/- on 10.03.2009, Rs.11,000/- on 23.03.2009 and Rs.2 Lacs on 26.03.2009. It is wrong to suggest that 55 batteries of 70Z Model were returned as defective on 05.03.2009, 64 no. batteries of 88 Model, 58 batteries of 100 Model, 68 batteries of M Model and 6 batteries of IT 500 Model on 08.04.09, 09.05.09 and 11.06.09. It is wrong to suggest that batteries worth Rs.4,52,100/- were returned as defective. It is wrong to suggest that the accused had paid Rs.58,650/- in excess to him or that he is liable to refund the same. It is wrong to suggest that no amount payable by the accused and that the present complaint is false. It is wrong to suggest that he visited the office of the accused on 27.02.2010 and threaten the son of the accused. It is wrong to suggest that there is no legally enforceable debt against the accused and no amount is payable by the accused.
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
6. All the incriminating evidence have been explained to the accused which are appearing in evidence against him to which he has replied that he issued the cheque in question as security containing his signatures and the amount in figures and words only. He already has made the entire payment after all adjustments by way of cash to the complainant and some batteries were to be replaced against the cheque in question, but the complainant never provided the new batteries after taking back the defective material. Hence, the cheque in question is without consideration. According to the accused, infact the complainant has a liability of Rs. 50,000/- towards him. He also stated that he wants to lead defence evidence.
7. Accused examined Sh. V. P. Sharma, as DW 1 in his defence evidence and he deposed that he has brought summon record that is statement of accounts of M/s Kuldeep Enterprises duly verified as per the Banker Book of Evidence Act for account no.0613002101004712 for the period from 14.01.2008 to 07.08.2009. The same is ExDW1/1 and bears the signature of Branch Manager. He has also brought the certificate pertaining to the said account, which is ExCW1/2 and bearing the signature of Senior Manager at point B. He has also brought the copy of the letter of stop payment made by the Manager of owner's bank at point C and said letter is Page 8 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. ExDW1/3.
The cheque in question was also returned on 01.08.2009 by their office, as per statement of account. He cannot tell the reason as to why the said cheque was returned by the back office. It is correct that the entry dt.30.03.2009 respect to the stop payment does not reflect the cheque numbers in the statement.
8. Accused examined one other witness Sh. Manmohan Khanna as DW2 in his defence and he deposed that he is carrying on the business of batteries under the name and style of M/s Sunshine Battery industry at KH-609/10, Chattarpur, New Delhi. He knows the complainant for the last about 10 years whereas he knows the accused for last 40 years. He had got the complainant introduced to the accused in January, 2009. The complainant had told him that he is manufacturing batteries and he wants to sell he same. He apprised the accused about the same and they started dealing with each other. It is correct that he was present when the cheque was issued by the accused to the complainant on 31.01.2009 as security for their business.
During his cross examination he deposed that for the purpose of business transaction, the accused and the complainant along with him had met only Page 9 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. once on 31.01.2009. It is correct that on the said day only discussions about the business was carried out and order for purchase of battery was placed by the accused. The cheque was given in the afternoon after the batteries were supplied by the complainant. The meeting between all three of them was at about 11.30 am. The meeting was for about 45 minutes. After that they left the meeting place which is the office of Kuldeep Enterprises. When the cheque was handed over, he was not present and it was only agreed in his presence that the cheque for Rs.5,00,000/- towards security will be given by the accused to the complainant. It is wrong to suggest that the cheque was not handed over by the accused to the complainant on 31.01.2009. It is wrong to suggest that cheque was not issued towards security. It is wrong to suggest that he is deposing falsely at the behest of the accused.
9. Accused has also examined himself as DW3 in his defence evidence and he deposed that he is the sole proprietor of M/s Kuldeep enterprises since 2005. He has already paid for the goods received by him and there are certain adjustments with respect to replacement of the goods supply by the complainant. He started dealing with the complainant since Jan, 2009. Sh. M. K. Khanna had got him introduced to the complainant. The complainant Page 10 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. visited his office when Mr. Khanna was present and it was agreed that the complainant shall supply batteries to him. Since the batteries required by him but approximately more than 800 batteries the complainant had asked him to issue a blank cheque as per market practice towards security. Thus the cheque in question was given by him as a blank cheque i.e. only the amount of Rs. 5 lacs was filled but neither the name of the payee nor any date was filled by him. He had given the said cheque towards security on 31.01.2009. At the time of starting of the dealing the rate of the batteries to be supplied were also agreed. The first order was given on 30.01.2009 telephonically. He had placed various orders for supply of various batteries as detailed in his application u/s 145 (2) dated 01.03.2011 at page no. 4, para iv from point A to point B, and the rate of the batteries agreed is detailed at page 5, para v from point C to D in his said application. The total cost of the batteries was between 1415 lacs. He had made payment of Rs. 10,11,000/ (approximately) to the complainant i.e. Rs. 4 lacs was paid in February 2009, thereafter, Rs. 1 lacs after one week, Rs. 2 lacs were paid within approximately 10 days, thereafter, Rs. 1 lacs was given on two different occasions. Thereafter Rs. 2,11,400 was paid to the complainant. As far as the remaining payment is concerned batteries 55 batteries of 70z model being defective were returned to the complainant on 05.03.2009 and 196 more batteries being defective were also returned to the complainant. He had Page 11 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. returned goods worth approximately 5.5 lacs to the complainant and after adjusting the said amount a sum of Rs. 58,000 is paid in excess to the complainant. He had requested the complainant to return the cheque in question, however, the same was not returned, but wrongly presented for encashment. Accordingly, he had instructed his banker to stop the payment of the cheque in question. However, he does not remember when the said instruction for stop payment were given to the banker. He is not liable to pay any amount to the complainant. No bill was raised by the complainant towards the supply of the batteries. He had received the legal notice which was duly replied by him. He had not received any letter dated 25.07.2009 of the complainant. It was agreed that the credit of 1530 days would be given to the complainant for making the payment.
During his cross examination, he deposed that he was introduced to the complainant by Sh. M. K. Khanna around 1617 Jan, 2009. The complainant has never supplied any bill for the battery supply by him. He does not ask the bills from the complainant to avoid tax liability. Since he was not having sales tax number at the relevant tax. It is wrong to suggest that the date and the name of the payee on the cheque no. 563207 was filled by him. It is correct that the cheque was given after he received the goods from the complainant on the first occasion. It is correct that the rate of the batteries as Page 12 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. mentioned at point C to D were not in writing. It is incorrect to suggest that the complainant had issued five bills or that the same were supplied to him. He used to maintain accounts of his business. He also maintain cash book and ledger account. He had paid Rs. 10,11,411 lacs in cash. he had not taken any receiving of the payment from the complainant, i.e. Rs. 4 lacs paid on 10.02.2009, 1 lacs on 17.02.2009, 2 lacs on 26.02.2009 and 1 lacs thereafter and Rs. 2,11,450 on 10.03.2009 and Rs. 11,000 on 23.3.2009 and 2 lacs on 26.03.2009. It is correct that he had shown the payments of the said amount in the cash book on the respective dates. He had not placed on record the copy of cashbook. It is wrong to suggest that he had not placed the cash book on record as no aforesaid payments was shown in it. He had not taken any receiving from the complainant for return of defective batteries. It is wrong to suggest that there is no receiving because no batteries were returned by him to the complainant. He had requested to return of cheque in question from the complainant from the first week of March, 2009. It is wrong to suggest that he had made no payment for the goods/batteries supplied by the complainant. At the time, when he had given the cheque in question to the complainant he along with complainant and Mr. Khanna were present. It is wrong to suggest that he is deposing falsely.
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
10. I have gone through the evidence and heard the final arguments advanced by both the parties at length.
11. The case laws material for the present facts and circumstances are discussed below.
In case entitled as "Rangappa vs Sri Mohan" [(2010), 11, Supreme Court Cases 441] where the Hon'ble Supreme Court of India, held that the bare denial of the passing of the consideration apparently does not appear to be any defence. To disprove the presumptions, the defendant has to bring on record such facts and circumstances, upon consideration on which the Court may either believe that the consideration does not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it does not exist and it was held that there is an initial presumption, which favours the complainant in the sense that the presumption mandated by Sec. 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. Since the accused did admit that the signatures on the cheques was his, the statutory presumption comes into play and same has not been rebutted even with regard to the material submitted by the complainant.
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
12. In the judgment "Hiten P. Dalal vs. Bratindra Nath Banerjee" AIR 2001 (SC) 3897 it was held that presumption under NI Act is a presumption of law as distinguished from a presumption under a fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with presumptions of innocence because by the later all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of a presumed fact.
13. In the judgment entitled "Pradeep Aggarwal & Ors vs Y. K. Goel", Cr. M. C. 66/2009 (Hon'ble High Court of Delhi), where it was held that complaints u/s 138 NI Act is a summary trial and accused should first disclose his defence and merely saying "He is innocent" or "He plead not guilty" will not be sufficient and onus is on the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences.
It was further held that u/s 138 NI Act, there is no presumption that even Page 15 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. if an accused fails to bring out his defence, he is still to be considered innocent.
14. In the judgment "Mosaraf Hossain Khan vs Bhagheeraha Engg. Ltd." AIR 2006 S. C. 128(2006), it was held that the object of the provision of section 138 NI Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. 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 setback.
15. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc.
16. After hearing arguments and on the careful perusal of the material on record, it is well established that both the complainant and accused are known to each other from quite some time. The signatures on the cheque in question, amount in words and figures is admitted by the accused. The legal demand notice also stands duly served upon the accused as the accused has replied on 09.09.2009 to it through his counsel. Accused has taken he defence that the cheque in question was issued as security and complainant did not return the cheque in question despite repeated requests. Accused also took the defence that he has already paid the amount due towards him and in fact it was complainant who had a liability towards him for Rs. 50,000/-. The aforesaid argument of the accused does not inspire any confidence of this court as accused has failed to show or place on record any receipt regarding such alleged payment. Further the accused's deposition in his cross examination makes it crystal clear wherein he deposed that he had paid Rs. 10,11,411/- in cash. He had not taken any receiving of the payment from the complainant i.e. Rs. 4,00,000/- paid on 10.02.2009, Rs. 1,00,000/- on 17.02.2009, Rs. 2,00,000/- on 26.02.2009 and Rs. 1,00,000/- thereafter and Rs. 2,11,450/- on 10.03.2009 and Rs. 11,000/- pm 23.03.2009 and Rs. 2,00,000/- on 26.03.2009. It is correct that he had shown the payment of the said amount in the cash-book on the Page 17 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. respective dates. He had not placed on record the copy of cash-book. Accused has also taken the defence that he returned the defective goods to the complainant. It is pertinent to mention here that accused did not show or place on record any receiving from complainant for return of defective batteries. His deposition in his cross examination, wherein he deposed that he had not taken any receiving from the complainant for return of defective batteries also makes it clear that accused has not been able to place on record any cogent evidence. It is well established that mere averments without any substantial evidence will not help the accused. Accused has further taken the defence that some batteries were to be replaced against the cheque in question but the complainant never provided new batteries after taking back the defective material and cheque is without consideration. Assuming for a moment the version of the accused to be true then what prevented him to lodge a complaint before the police or a court of law regarding the alleged high-handedness of the complainant. Meaning thereby accused did owe a debt and liability towards the complainant. Accused further took the defence that admittedly there are two different ink used on the cheque which again does not throw any doubts on the credibility of the version of the complainant. Regarding this, I would like to emphasize the law laid down in Ravi Chopra Vs. State & Anr 2008 (102) DRJ 147 Page 18 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. in para 20 it was observed that there is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled in comparison with the signatures thereon as constituting a "material alteration" for the purposes of section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. As long as the cheque has been signed by the drawer, the fact that ink in which name and figures are written or date is filled up is different from the ink of signatures is not a material alteration for the purposes of section 87 NI Act. Hence, the defences raised by the accused are without any substance and merits. Documents relied upon by the accused fail to rebut the statutory presumptions in favour of the complainant and does not help the accused. The accused has miserably failed in substantiating his reasonable and convincing defence.
17. The contention of the accused is that the cheque in question was dishonored for the reason "Cheque irregularly drawn". It is argued on behalf of accused that the reason of dishonor i.e "Cheque irregularly drawn" does not fall within the ambit of the provision of sec. 138 of N. I Act. In banking practices the proforma or return memo is given by the bank for the return of the cheque. Said Page 19 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. proforma is used only to indicate that the cheque is not honoured for a particular reason mentioned therein. A person in whose favour the cheque has been issued is entitled to have that amount provided there is sufficient amount to the credit of that account. Following the dishonor of cheque a notice has to be issued to the person who has issued the cheque inviting his attention to the fact that the cheque has been dishonored for the reason stated in the bank memo and that he is liable for penal consequence under the provision of sec. 138 N. I. Act. When the reason for the return of the cheque has been mentioned in bank returning memo then it is primary duty of drawer of the cheque to make the payment of the said amount of money to the payee within 15 days of the receipt of the said notice, and he fail to comply with clause (c) of the sec. 138, the filing of the complaint within a month from the date of cause of action is also provided for under clause (b) section 142 of the Act. Thus, a notice has to be given to the drawer and the notice is condition precedent. That means, the drawer of the cheque has got an opportunity to know in advance before filing of the complaint the cheque was dishonored for a particular reason. When that information was already available with him and when he has not made any attempt to pay the same, it cannot be said that the cheque was returned not for insufficiency of funds or funds not arranged for. When an opportunity has been given to the Page 20 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. drawer of the cheque by inviting his attention and when he has not paid the amount, it has to be construed that "Cheque irregularly drawn", ultimately, resulting in the dishonoring of the cheque and preventing the payee from getting amount which is only on the account of the act committed by the drawer who has given the cheques. The drawer of the cheque himself is prima facie answerable for the dishonor of cheque. Therefore, it cannot be said that for the cheque in question which was returned by the bank as dishonored, the provision of sec. 138 of N. I Act are not attracted at all.
18. Hence, the accused has miserably failed in substantiating his defence and showing that there is no liability of the accused towards the complainant. The complainant successfully proved all the essential requirements of sec 138 of the Act i.e. :
a) The cheque for an amount was issued by the accused to the complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability by the accused.
c) The cheque is returned by the bank unpaid on account of insufficient amount to Page 21 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque.
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
18. Under the aforesaid discussion, accused Sh. Kuldeep is held guilty for offence U/s 138 NI Act and he is consequently convicted for the offence u/s 138 of Negotiable Instruments Act.
Announced in open court (Deepika Singh) today i.e. on 30.04.2013 MM-03 / N.I. Act / Central / Delhi Page 22 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN MAGISTRATE, NORTH, DELHI CC No. 1808/11 Mr. Ashok Aggarwal Proprietor M/s Snow Track India, 44/1, West Guru Angad Nagar, Opposite Radhu Palace Cinema, Lakshmi Nagar, Vikas Marg, Delhi-110092. ....................Complainant vs. 1. M/s Kuldeep Enterprises, F 27-28, Gokhale Market, Opposite Tis Hazari Court, Delhi-110006. 2. Mr. Kuldeep Proprietor M/s Kuldeep Enterprises, F 27-28, Gokhale Market, Opposite Tis Hazari Court, Delhi-110006. ............................ Convict ORDER ON SENTENCE : 7.05.2013
Present : Complainant in person with Ld. Counsel Sh.Mahesh Saroj.
Convict in person alongwith Ld. Counsel Sh. Madhur Sapra. Arguments heard on sentencing.
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Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. Ld. counsel for the convict has argued that convict is of 64 yrs of age and that he has a large family to support including two daughters and one son and he is sole bread earner of his family. He has been bonafide throughout in his conduct before the court, hence lenient view should be taken towards him.
Since the cases of dishonoring of the cheques are on high rise in the society, therefore, court is not inclined to take lenient view and release the convict under Probation of Offenders Act as it would not be having any deterrent effect.
Almost 4 years have elapsed since the cheque was dishonored and the same has yet not been repaid to the complainant.
Keeping in view this conduct of the convict, no leniency ought to be granted to him. It is true that the object of Section 138 N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noticed that when this offence was inserted in the statute in 1988, it provided for imprisonment up to one year which was revised to two years following the amendment to the Act in 2002, which makes it quite evident that the legislative intent to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation.
After hearing the arguments, court is of the considered opinion that convict Sh. Kuldeep is sentenced to simple imprisonment for 4 months Page 24 of 22 Ashok Aggarwal vs. M/s Kuldeep Enterprises etc. and he is further liable to pay a compensation of Rs. 5.50 lacs ( Five Lacs and Fifty Thousand only) to the complainant within 2 months from today i.e. 07.05.2013 failing which, he will be liable to further simple imprisonment of 6 months.
At this stage, Ld. Counsel for the convict has filed an application for suspension of sentence, so that he can file an appeal before the Ld. Sessions Court. Hence convict is admitted to bail for 30 days on furnishing personal bond in the sum of Rs. 25,000/- along with one surety of like amount.
Bail bonds furnished. Accepted.
Convict is admitted to bail till the expiry of 30 days.
Come up before this court on 7.6.2013. Copy of the judgment and order on sentence is given free of cost to the convict.
Announced in open court (Deepika Singh) today i.e. on 07.05.2013 MM:03 NI Act / Central / Delhi Page 25 of 22