Delhi District Court
Presently At : G-8 vs The State on 2 April, 2014
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01, SPECIAL JUDGE (NDPS)
SHAHDARA DISTT., KARKARDOOMA COURTS, DELHI
Cr. Appeal No. : 02/2014
Unique I.D. No. 02402R0418142013
In the matter of :
SH. AMARDEEP SINGH
S/o Ranjeet Singh
Prop. of M/s Harjas Construction
R/o 16/61, Faiz Road, Karol Bagh,
New Delhi-110005.
Presently At : G-8, IDPL Apartment,
Road No. 44, Pitampura,
Delhi-110034. ...........................Appellant/Convict
VERSUS
1. THE STATE
NCT of Delhi.
2. SH. D.D. SHARMA @ DHARAM DUTT SHARMA
S/o Sh. P.L. Sharma
R/o G-19/20, Mansarovar Park,
Delhi-110032. ..............Respondent/Complainant
Date of Institution : 02.01.2014 Date of reserving the Judgment in Appeal : 20.03.2014 Date of pronouncement : 02.04.2014 JUDGMENT IN APPEAL
1. This criminal appeal u/s 374 Cr.PC has been preferred by the appellant against the impugned judgment of conviction and 'order on sentence' dated 03.12.2013 and 07.12.2013 respectively, passed by Ld. CMM, Shahdara, Karkardooma Courts in the case C.C. No. 230/13, titled as Cr. Appeal No. 02/2014, 1 of 16 Pages 'D.D. Sharma Vs. Amardeep Singh' whereby the accused (appellant herein) was held guilty and convicted u/s 138 The Negotiable Instruments Act, 1881, (hereinafter referred as 'Act') and was sentenced to SI for one year and also to pay fine of Rs. 10,00,000/- out of which amount, Rs. 9,50,000/- was awarded as compensation to the complainant and in default of payment of fine, convict shall undergo SI for three months.
However, on application u/s 389 (3) Cr.PC, Ld. CMM granted bail to the convict till 07.01.2014. On 06.01.2014, on the application u/s 389 Cr.PC, accompanied with the criminal appeal, this court stayed the operation of impugned judgment and order on sentence and admitted the appellant to bail till final disposal of the appeal.
2. I have heard submissions from Ld. Counsel for appellant as well as Ld. Counsel for respondent No. 2/ complainant and also gone through the record.
3. On behalf of the appellant, it has been submitted by Ld. Counsel that Ld. Trial Court failed to consider the facts that no such loan of Rs. 7,50,000/- was ever given by the respondent; that original amount of Rs. 3.5 lakhs was only given by the complainant/ respondent No. 2; that appellant had already paid some of the said amount to the complainant/ respondent No. 2; that the cheques presented by the complainant/ respondent No. 2 were security cheques; that accused (appellant) was not given opportunity to defend the present case as no application u/s 145 (2) of 'Act' could be filed; that application u/s 311 Cr.PC filed by the appellant was dismissed by Ld. Trial Court on 19.11.2013; that Ld. Trial Court overlooked the malafide and dishonest intention of the respondent who did not place on record any other document in his support; that Ld. Trial Court passed the impugned judgment and order Cr. Appeal No. 02/2014, 2 of 16 Pages on sentence without appreciating the facts, evidence placed on record and defence raised by the appellant; that appellant has been falsely implicated and has not committed any alleged offence; that impugned order on sentence is against the principles of natural justice; that a huge amount of Rs. 10 lakhs as fine is causing injustice as it is very hard for the appellant to pay; that complainant/ respondent No. 2 did not examine the Bank Manager of the complainant's bank because it could reveal out the fact of transactions and payment carried out in his bank account and the truth could have been sorted out and therefore, the impugned judgment and order on sentence be set-aside.
4. On behalf of the appellant, Ld. counsel has also filed written argument wherein he has reiterated that the cheque in question were given for security and not for discharge of any legal debt or liablity. Moreover, the cheques were undated and blank but the complainant for his convenience has filed the said cheques without knowledge and consent of the appellant. He further submitted that the question for giving the amount was itself doubtful because as per MOU amount was to be given for expenses incurred for project and therefore the claim of the complainant for giving the alleged sum of Rs. 7,50,000/- is useless. Moreover, the complainant has not disclosed the date of payment of Rs. 7,50,000/- which creates doubt in the credibility of the complainant's version. He has relied on authorities reported as 'Vijay Vs. Laxman & Anr., 2013 (3) SCC 86' and 'K.N. Been Vs. Muniyappan 2001 (7) scale 331'. It has also been submitted that the complainant himself admits that the cheques in question were given for security and therefore, there was no need to establish a defence by leading cogent evidence in this regard. Reliance has been placed on the authorities reported as 'M.S. Narayana Menon @ Mani Vs. State of Kerala, 2006 (6) SCC 39'.
Cr. Appeal No. 02/2014, 3 of 16 Pages
5. It has further been submitted that as per para 4 of demand notice it is clear that after dishonor of cheque No. 838024, the appellant issued other 3 cheques for the same amount and the claim against cheque No. 838024 has ended which has also been clarified by the complainant in para 14 of the complaint. It is also submitted that the demand notice in respect of cheque No. 838024, 838025, 402951, 402952 and 402968 is illegal and non-est. The claim for whole amount is defective and the complaint was not maintainable. Reliance has been placed on the authorities reported as 'K.R. Indira Vs. Dr. G. Adinarayan 2003 (3) JCC (NI) 273' and 'Pramod Vijay Khullar Vs. State & Anr., 2005 (I) JCC (NI) 97'. It has further been submitted that in last clause of the notice the complainant has mentioned "that cheque bearing No. 838025 for Rs. 3,75,000/- is also lying with his client as dishonored and his client would return the same after receipt of entire claim", which means that demand notice dated 28.01.2009 does not pertain to cheque No. 838025. It was submitted that the complaint has admitted receipt of Rs. 50,000/- after sending the alleged notice and therefore after receipt of the part payment, the complaint for entire amount is defective and not maintainable. It was also submitted that the complaint was barred by time and no application for condonation of delay has been preferred and therefore, ought to have been thrown out. It has further been submitted that the cheques were issued as security from joint account of Smt. Harbans Kaur and appellant but no notice was sent to Smt. Harbans Kaur who was one of the drawer of the cheques, as such notice to the convict/ appellant himself making demand of unpaid cheque is sine-qua non (relied on 'Kishorebhai Bhudabhai Chavda Vs. State of Gujrat, decided in Cr. Appeal No. 1048/2010 on 15.02.2012 by Hon'ble High Court of Gujrat). Ld. counsel for appellant therefore, submitted that appeal be allowed and appellant be acquitted.
Cr. Appeal No. 02/2014, 4 of 16 Pages
6. Ld. Counsel for the respondent No. 2/ complainant, however, submitted that the appellant has not approached the court with clean hands and not expected to take undue benefit of the leniency shown by the court. In the appeal, not a single word is mentioned about any illegality. The appellant has misused the process of law and the leniency given by Ld. Trial Court during the period from 11.08.2010 till 19.11.2013. The convict did not enter into witness box at the stage of service of notice u/s 251 Cr.PC and has not put up any defence nor moved any application u/s 145(2) of the 'Act'. No application for cross-examination was filed by the convict/ appellant and matter was listed for DE as per guideline of judgment 'Rajesh Aggarwal Vs. The State and Anr.' for 29.08.2013 when NBWs were issued against the appellant and case was listed on 10.10.2013. The appellant/ convict did not challenge the order dated 04.07.2013 and in the present appeal he raised question mark regarding working of Ld. Trial Court.
Admittedly, after receipt of legal notice, appellant/ convict paid Rs. 50,000/- i.e. part payment out of legal demand of Rs. 6.75 lakh and if there was no such legal debts then why he accepted the demand of legal notice; why reply to the legal notice was not sent; why demand of returning back of cheques was not made; why he repaid Rs. 50,000/- out of Rs. 6.75 lakh. The part payment after receipt of legal demand notice establishes the balance amount on that day Rs. 6.75 lakh out of Rs. 7.50 lakh as earlier a cheque of Rs. 75,000/- had been honoured on its presentation. If demand of Rs. 6.25 lakh as per complaint was not the legal debt then why it was not apprised to Ld. Trial Court and why appellant/ convict was ready to settle the case. The legal demand notice was sent for Rs. 6.75 lakh but appellant/ convict after receipt of notice paid part payment of Rs. 50,000/-, hence the respondent No. 2 restricted his claim only for Rs. 6.25 lakh and Ld. Trial Court also Cr. Appeal No. 02/2014, 5 of 16 Pages mentioned this fact in the judgment at para No. 17. It is important to note that if if the amount as per version of appellant/ convict was only Rs. 3.50 lakh then why he issued a cheque in sum of Rs. 3.75 lakh each and why he issued a cheque of Rs. 10.50 lakh as placed on record and repaid Rs. 75,000/- once and Rs. 50,000/- after legal notice amounting Rs. 11.75 lakh. In the present appeal the appellant/ convict has admitted the legal debt of Rs. 6.25 lakh as in ground (k) at para No. 13, he challenged the amount of judgment i.e. Rs. 10 lakh (Rs. 6.25 cheque amount, Rs. 3.25 lakh compensation and Rs. 50,000/- the fine) stating "........Though, a reasonable amount is always not disputed and likely to be paid by the appellant."
7. Ld. counsel for respondent No. 2/ complainant has further submitted that the appellant has approached the court with a new defence which he did not disclose during service of notice nor mentioned in the grounds of appeal i.e. 'cheques were handed over undated and blank'.
As per clause (b) of section 138 of 'Act', the notice shall be given in writing within 15 days of receipt of information from the bank regarding return of cheques as unpaid and in the notice a demand of payment of the amount of the cheque has to be made. In the present appeal, there is no dispute that notices were in writing and were sent within 15 days and therefore, the only question to be examined is whether there was demand of payment in the said notice.
Hon'ble Delhi High Court in Crl. A. No. 136/2010, titled as V.S. Yadav Vs. Renna, has stated that :
"...... Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised u/s 139 of N.I. Act. If mere statement u/s 313 Cr.PC or u/s 281 Cr.PC of accused of pleading not guilty was Cr. Appeal No. 02/2014, 6 of 16 Pages sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption u/s 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/ prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case".
In 'M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39', it was held that presumptions u/s 118 (a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Hon'ble Supreme Court in 'Habbalappa Dndappa Katti & Ors., Vs. State of Karnataka (2001 (3) Crimes 218 (SC)', has held that the cheques had been issued by the accused only towards discharge of the liability and the same had been dishonoured and the cheque amounts were not repaid in time, despite the receipt of the statutory notice".
"...... by merely stating that the cheques were given as security in respect of the agreement entered into between the complainant and her brother Kumaraswamy even without examining the said Kumaraswamy Cr. Appeal No. 02/2014, 7 of 16 Pages as defence witness or by producing the agreement, the court cannot be asked to accept her plea".
8. According to the learned counsel for respondent No. 2, appellant has admitted the execution of 4 cheques and therefore, presumption u/s 118, 138 and 139 of the 'Act', was to be drawn against the appellant/ convict until contrary was proved. As per authority reported as 'Hiten P. Dalal VS. Bratindranath Banerjee, 2001 (3) Crimes 220 (SC)', appellant/ convict has failed to rebut the presumption as he has neither lead any evidence nor cross-examined the respondent No. 2/ complainant and Ld. Trial Court has rightly drawn the presumption against the appellant/ convict.
Ld. Counsel for respondent No. 2/ complainant has also relied on the following case laws :
1). Maninder Singh Narula Vs. Pawan Kumar Ralli, Crl. M.C. 2961/2012, decided on 15.01.2013 by Hon'ble Delhi High Court.
2). K.N. Beena Vs. Muniyapa and Anr., Crl. App No. 1066/2001, decided on 18.10.2001 by Hon'ble Supreme Court.
3). Vijay Vs. Laxman & Anr., Crl. App. No. 261/2013, decided on 07.02.2013 by Hon'ble Justice Gyan Sudha of Hon'ble Supreme Court.
4). Vijay Vs. Laxman & Anr., Crl. App. No. 261/2013, decided on 07.02.2013 by Hon'ble Justice T.S. Thakur of Hon'ble Supreme Court.
9. Perusal of Trial Court Record reveals that the appellant/ convict was absent on 20.01.2011 despite service and therefore, Ld. Trial Court had issued Bailable Warrants for 16.03.2011. He was absent on that day also and fresh BWs were issued for 08.06.2011 and on that day, he put up appearance and sought adjournment for settlement in Lok Adalat. The matter was adjourned to 10.09.2011 for settlement in the Lok Adalat but the case file was received back from Lok Adalat Judge with Cr. Appeal No. 02/2014, 8 of 16 Pages the report that accused was absent on 22.12.2010. Steps were again taken for fresh service of appellant/ convict for 14.09.2011 and on that day, fresh BWs were issued for 12.10.2011 but BWs were received back unexecuted and ultimately Ld. Trial Court declared the appellant/ convict Proclaimed Offender (PO) vide order dated 26.09.2012 and the case file was consigned to Record Room.
10. On 04.03.2013, file was taken up on appearance of the wife of accused and and Ld. Trial Court adjourned the matter to 12.03.2013 when application for recall of order declaring the appellant/ convict as PO was moved and matter was adjourned for appearance of the appellant/ convict. On 15.03.2013, he appeared and was admitted to bail.
11. A perusal of the order-sheet dated 04.07.2013 reveals that on that day, notice u/s 251 Cr.PC was served on the appellant/ convict by Ld. Trial Court wherein he pleaded not guilty. On that day, it was also submitted on behalf of the appellant/ convict that the complaint filed by the respondent No. 2 was barred by limitation and this submission was considered and rejected by Ld. Trial Court mentioning therein that the legal notice dated 28.01.2009 was sent on the same day and in the month of February, 2009 there were only 28 days and the complaint was filed on 17.03.2009. Ld. Trial Court also noted that no application for permission to cross-examine the complainant was moved and therefore, matter was fixed for DE on 29.08.2013 but on that day, appellant/ convict was absent when NBWs were issued for 10.10.2013 and on that day accused moved an application for cancellation of NBWs which were cancelled subject to cost of Rs. 10,000/- payable to the complainant/ respondent No. 2. Matter was adjourned for DE on 19.11.2013 but no evidence was lead by the appellant/ convict and accordingly DE was closed and matter was adjourned to 03.12.2013.
Cr. Appeal No. 02/2014, 9 of 16 Pages On that day, an application u/s 311 Cr.PC was moved for recall of the witnesses and after hearing, Ld. Trial Court dismissed the said application and vide impugned judgment, appellant/ convict was held guilty for offence u/s 138 of the 'Act'.
12. On behalf of the appellant/ convict, it has been submitted by learned counsel that Ld. Trial Court has failed to consider the fact that no alleged loan of Rs. 7.5 lakhs was ever given by respondent No. 2/ complainant, original amount of Rs. 3.5 lakh was given by the respondent No. 2/ complainant and appellant had already paid the said amount to the respondent No. 2/ complainant. Perusal of the record reveals that the respondent No. 2/ complainant has placed on record MOU (memorandum of understanding) dated 10.09.2008 Ex.CW1/1 and clause 17 thereof reads as under:
"The second party shall fund the project expenses upto a maximum limit of Rs. 10 lac based on the requirement as and when arise as confirmed by the first party. This amount shall be first returned to the second party prior to division of any profit. The first party shall give equal value cheques as security from the aforesaid bank account towards safeguard of the money invested by the second party."
13. As per the said clause, appellant had to give equal value cheques as security from the bank account to safe guard the money invested by the respondent No. 2/ complainant. Respondent No. 2/ complainant has submitted that he gave a sum of Rs. 7.5 lakhs to the appellant/ convict who issued two post dated cheques, one bearing No. 838024 dated 29.09.08 and another bearing No. 838025 dated 03.10.08, for a sum of Rs. 3.75 lakh each, drawn on State Bank of Bikaner & Jaipur, Ajmal Khan Road, Delhi, towards security of the received amount. The execution of the said cheques is not disputed by the appellant/ convict Cr. Appeal No. 02/2014, 10 of 16 Pages and total value of both the cheques was Rs. 7.5 lakhs and therefore, the appellant/ convict would have issued the said cheques for Rs. 7.5 lakhs only when the respondent No. 2/ complainant had paid or deposited sum of Rs. 7.5 lakhs as per MOU otherwise there was no reason for the appellant/ convict to issue said cheques. It is pertinent to note that at the stage of service of notice u/s 251 Cr.PC, the appellant/ convict has admitted the fact that respondent No. 2/ complainant paid him Rs. 3.5 lakhs.
14. Section 118 of the 'Act' reads as under :
Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made :-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date date- that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements- that the
endorsements appearing upon a negotiable
instrument were made in the order in which they
appear thereon;
(f) as to stamps- that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course- that the
holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an Cr. Appeal No. 02/2014, 11 of 16 Pages offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
In the authority reported as 'Mallavarupu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm, 2008 (7) SCC 655 : 2008 (8) SCR 1210', it is held that by virtue of clause (a) of section 118 court is obliged to presume that the promissory note was made for consideration until the contrary is proved. Initial burden lies on the defendant to prove to non existence of consideration which would lead the court to believe the non existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal.
15. Since the appellant/ convict, has neither cross-examined the respondent No. 2/ complainant nor has lead any evidence, therefore, Ld. Trial Court has rightly presumed the facts against the appellant/ convict.
16. Section 139 of the 'Act' reads as under :
"Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
As per authority reported as "Mandavi Co-operative Bank Ltd., Vs. Nimesh B. Thakore, AIR 2010 SC 1402 : (2010) 3 SCC 83: JT 2010 (1) SC 259", A rebuttable presumption is created under section 139 that cheque was issued by the drawer in discharge of any debt or liability owned by him to its holder. Presumption u/s 139 of the 'Act' is also rebuttable but the appellant/ convict has neither cross-examined the Cr. Appeal No. 02/2014, 12 of 16 Pages respondent No. 2/ complainant nor has lead any evidence and therefore, Ld. Trial Court has rightly drawn presumption u/s 139 of the 'Act' against the appellant/ convict.
17. It has also been contended on behalf of the appellant/ convict that the cheques presented by the respondent No. 2/ complainant were security cheques. Record shows that cheque No. 838024 dated 29.09.08 for Rs. 3.75 lakh and cheque No. 838025 dated 03.10.08 for Rs. 3.75 lakh, both drawn on State Bank of Bikaner & Jaipur, were security cheques. However, respondent No. 2/ complainant in his complaint has submitted that appellant/ convict had issued cheque No. 402951 dated 01.09.08 for Rs. 4 lakh (wrongly written as Rs. 1 lakh in the complaint) and cheque No. 402952 dated 07.10.08 for Rs. 2 lakh, both drawn on ICICI Bank, Defence Colony Branch. Both these cheques and one more cheque for Rs. 75,000/- was issued by appellant/ convict subsequently and therefore, the contention of the appellant/ convict that the cheques were towards security is incorrect.
18. It has also been submitted on behalf of the appellant/ convict that he was not given opportunity to defend the present case as there was no application u/s 145 (2) of the 'Act' and that application u/s 311 Cr.PC was dismissed by Ld. Trial Court on 19.11.2013. This contention cannot be agitated by the appellant/ convict at this stage.
19. The submission that the cheques were undated and blank and the respondent No. 2/ complainant for his convenience has filled the said cheques without knowledge and consent of the appellant/ convict, is contrary to the record and also self-contrary to the submissions and pleas taken on behalf of the appellant/ convict. In reply to the notice u/s 251 Cr.PC, he has taken plea that he has stopped the payment of cheques of ICICI Bank whereas in the arguments raised on his behalf, it Cr. Appeal No. 02/2014, 13 of 16 Pages has been submitted that he has issued cheques only towards security. The security cheques were only cheques bearing No. 838024 dated 29.09.08 and No. 838025 dated 03.10.08 and the appellant/ convict subsequently had issued other 2 cheques besides cheque of Rs. 75,000/- which were duly filed. He had not taken any objection at the time of notice u/s 251 Cr.PC that the cheques were undated and blank or that the complainant had filled the said cheques without his knowledge and consent. It is admitted fact that he got stopped the payment of cheques of ICICI Bank and therefore, there is no merit in this argument.
20. The authority reported as 'Vijay Vs. Laxman & Anr., 2013 (3) SCC 86' and 'K.N. Been Vs. Muniyappan 2001 (7) scale 331', relied by learned counsel for appellant/ convict does not help him as the facts in that case were different. The authority reported as 'M.S. Narayana Menon @ Mani Vs. State of Kerala, 2006 (6) SCC 39', is also not applicable on the facts of this case as the appellant/ convict has failed to raise any probable defence and has also failed to rebut presumption u/s 139 of the 'Act'.
21. It has further been argued on behalf of the appellant/ convict that the demand notice was issued by the respondent No. 2/ complainant in respect of the cheque No. 838024, 838025, 402951, 402952 and 402968 and therefore, claim was illegal and non-est. This submission is contrary to the record because in the demand notice, the respondent No. 2/ complainant has demanded the amount towards cheque No. 402951 and 402952 only. The complainant has specifically mentioned that cheque No. 838025 dated 03.10.2008 for Rs. 3.75 lakh was lying dishonored with him and other cheque bearing No. 838024 dated 29.09.2008 for Rs. 3.75 lakh was dishonored with the remark Cr. Appeal No. 02/2014, 14 of 16 Pages 'insufficient funds' with the memo dated 04.10.2008 when the complainant apprised the appellant/ convict about dishonor of the said cheque then he had issued 3 cheques bearing Nos. 402951 dated 01.09.08, and 402952 dated 07.10.08 and third cheque for Rs. 75,000/- which were dishonored on presentation. Therefore, there is no merit in the argument that the claim was defective or that it was not maintainable. The authorities reported as 'K.R. Indira Vs. Dr. G. Adinarayan 2003 (3) JCC (NI) 273' and 'Pramod Vijay Khullar Vs. State & Anr., 2005 (I) JCC (NI) 97', with due respect are not applicable on the facts of this case.
22. The argument that the complainant has admitted receipt of Rs. 50,000/-
after sending the alleged notice and therefore, after receipt of part payment the complaint for entire amount is defective and not maintainable, is not tenable as the complainant has fairly stated that he has received part payment of Rs. 50,000/- and has restricted his claim for Rs. 6.25 lakhs.
23. The argument that the notice to the convict/ appellant making demand of unpaid cheque is sine qua non as the cheques were issued as security from joint account of Smt. Harbans Kaur and appellant, is not tenable because it was upto the convict appellant alone as to what security he wanted to make. The fact remains that the convict/ appellant had issued the cheque Nos. 402951, dated 01.09.2008 for Rs. 4 lakhs and No. 402952 dated 07.10.2008 for Rs. 2 lakhs, both drawn on ICICI Bank, Defence Colony Branch, which on presentation by the respondent No. 2/ complainant were dishonored and the said cheques were issued by the appellant/ convict. Moreover, on 04.07.2013, at the stage of service of notice u/s 251 cr.PC, the appellant/ convict admitted that he stopped payment of cheques of ICICI Bank in question.
Cr. Appeal No. 02/2014, 15 of 16 Pages
24. In view of the above discussion, in my considered view, there appears no illegality in the impugned judgment of conviction dated 03.12.2013 and impugned 'order on sentence' dated 07.12.2013. Accordingly, criminal appeal is dismissed. The appellant/convict has to suffer the punishment as awarded by Ld. Trial Court. He be taken into custody and be sent to judicial custody to suffer the punishment. His bail bond is cancelled and surety is discharged.
25. Copy of 'Judgment in Appeal' be given free of cost to the appellant. A copy be sent to Ld. Trial Court for information. Trial Court Record be sent back. Appeal file be consigned to Record Room.
Announced in the open court (T.S. KASHYAP)
today on 02nd April, 2014 ASJ-01/ Special Judge (NDPS)
Shahdara District, Delhi
Cr. Appeal No. 02/2014, 16 of 16 Pages