Delhi District Court
Barclays Investments And Loans [India] ... vs Devinder Singh on 10 October, 2011
IN THE COURT OF SH.NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE,
SPECIAL COURT06, DWARKA COURTS, NEW DELHI.
BARCLAYS INVESTMENTS AND LOANS [INDIA] LTD.
VERSUS
DEVINDER SINGH
P.S.: SUBZI MANDI
U/S: 138 NEGOTIABLE INSTRUMENTS ACT
1.Serial No./CC No. of the : 25355/1 case
2. Name of the complainant : Barclays Investments & Loans (India) Ltd.
11B/8, IIIrd Floor, Tewari House, Pusa Road, Rajinder Nagar, New Delhi - 110 008
3. Date of institution : 13.01.2010
4. Name of the accused, his : Devinder Kumar parentage and residence House No. 2080 Ist Floor, Mahabir Bahadur, Gargh Road, New Delhi - 110 006
5. Date when judgment was : 30.07.2011 reserved
6. Date when judgment was : 10.10.2011 pronounced CC No. 25355/1 1 of 19
7. Offence complained of : Section 138 Negotiable Instruments Act and proved
8. Plea of accused : Pleaded not guilty and claimed trial
9. Final Judgment : Accused found guilty of offence under Section 138 Negotiable Instrument Act and convicted for the same.
:J U D G M E N T: 1 Vide this judgment, I shall decide the present complaint filed by the complainant Barclays Investments and Loans [India] Ltd. under Section 138 of Negotiable Instruments Act [herein after referred to as N.I.Act] against the accused Devinder Kumar.
2 Thumbnail sketch of the case is that on the request of the accused the complainant vide loan agreement no. LCO11511815561 had granted the loan/finance facility to the accused which was to be repaid by the accused alongwith interest in EMI's. It is further averred that accused had issued cheque bearing no. 826986 dt. 05.11.2009 for a sum of Rs.1,02,200/ drawn on Federal Bank in favour of the complainant towards partial discharge of his liability. The complainant presented the aforesaid cheque to its banker namely, ICICI Bank, New Delhi which was returned unpaid vide returning memo dt. 14.11.2009 with the remarks "Account closed". Thereafter, complainant sent upon CC No. 25355/1 2 of 19 the accused the demand notice dt. 07.12.2009 (posted on 09.12.2009) through speed post AD demanding the payment of the aforesaid cheque within 15 days of the receipt of the notice. Since, the accused had failed to pay the aforesaid cheque amount, therefore, an offence under Section 138 of NI Act is deemed to have been committed by the accused for the prosecution of which the present complaint is filed by the complainant. 3 After taking cognizance of the offence, summons were issued to the accused post which he entered appearance and was admitted to bail. Thereafter, notice under Section 251 Cr.P.C encompassing all the accusations was served upon the accused to which he pleaded not guilty and claimed trial.
4 In complainant's evidence the complainant got examined CW1, that is Authorized Representative for the complainant who tendered his evidence by way of affidavit which is Ex.CW1/A. Other documents relied upon by CW1 are power of attorney Ex.CW1/1, cheque in question Ex.CW1/2, Bank returning memo dt. 14.11.2009 is Ex.CW1/3, legal notice is Ex. CW1/4 and postal receipt is Ex.CW1/5. In his cross examination CW1 placed on record the loan agreement which is Ex CW1/6.CW1 further stated that loan of Rs 1,02,200/ was disbursed in favour of the accused and till the date of cross examination i.e 21.01.2011 , accused has paid 7 EMI's of Rs 3276/ each.CW1 denied the suggestion that cheque in question was given blank for security purpose at the time of the loan and that the amount on the cheque is filled by the complainant. Lastly, he denied the suggestion that no legal notice was served upon the accused. Complainant's evidence got closed vide order dated 21.01.2011.
CC No. 25355/1 3 of 19 5 Complainant's evidence was followed by Statement of the Accused under
Section 313 Cr.P.C wherein, accused submitted that although the cheque in question bears his signature but the same was issued as blank and body of the cheque was not filled by him. He further denied to have received any legal demand notice from the complainant but admitted that he has been residing at the address mentioned in the legal notice for the last 10 12 years. Lastly, he stated that he wanted to lead defence evidence but despite giving number of opportunities, accused failed to adduce any evidence in his defence and consequently, DE got closed vide order dated 06.07.2011. 6 Learned counsels for complainant and accused addressed their respective final arguments at length. Before appreciating the evidences and arguments of both the parties, it would be appropriate to advert to the relevant provisions of N.I Act.
Section 138 of N.I Act reads as under
Section 138 of NI Act reads as under: S. 138 Dishonour of cheque for insufficiency, etc., of funds in the account - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement make with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to twice the amount of the CC No. 25355/1 4 of 19 cheque or with both.
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
7 Section 138 of the NI Act has three ingredients, viz., (i) that there is a legally enforeceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre supposes a legally enforeceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a compliant petition can be acted upon by a court of law.
CC No. 25355/1 5 of 19 8 I would now embark upon the evidences adduced and the arguments advanced by both the parties. 9 Learned counsel for the complainant has relied upon following judgment :
➢ V.S Yadav v. Reena, Delhi High Court CRL.A.NO. 1136 of 2010 10 Learned counsel for complainant has averred that accused had taken loan of Rs.1,02,200/ from the complainant which was to be repaid by the accused in 48 Equated Monthly Installments of Rs 3,276/ each and till date accused has paid only 7 EMI's and 41 EMI's are remained to be paid by the accused. It is further averred that loan recall notice was sent to the accused and after receiving the said notice, accused issued the cheque in question amounting to Rs 1,02,200/ which got dishonoured. Thereafter, legal notice was served upon the accused but accused neither replied to the aforesaid notice nor made any payment thereby committing offence under Section 138 of N.I Act. 11 In retort, learned counsel for accused has contended that loan was taken in the year 2007 from Rank Investments and not Barclays Investments and cheque in question was given at the time of the loan from the accused as blank for security purpose and the same is in the name of Rank Investment and not Barclays Investment. To controvert this, learned counsel for complainant has contended that name of the complainant bank stood changed to Barclays Investments from Rank Investments in the year 2008 and therefore some people still issue cheque in the name of Rank Investments and Credit India Ltd CC No. 25355/1 6 of 19 (RICL) and accused has also issued cheque in the name of RICL which is nothing but the previous name of complainant bank.
12 I have perused the records of the case giving consideration to the submissions of the counsels.
13 As regards the contention of learned counsel for accused that cheque in question was blank cheque signed by the accused and given for security purpose but rest of the contents were in different ink and filled by the complainant, I would like to refer to Section 20 of N.I Act which contains provision regarding "inchoate instrument".
20. Inchoate stamped instruments - Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank of having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provide that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 14 In Moideen v. Johny 2007(1) Civil Court Cases 220 (Kerala), it has been held by Kerala High Court in Paragraph 6 that: "...........Even if a blank cheque is issued as security, the person in CC No. 25355/1 7 of 19 possession of the blank cheque can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another , it gives an authority on he person to whom it is issued , to fill up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank."
15 In "Ravi Chopra v. State and another" 2008 (102) DRJ 147, it was held by Hon'ble Justice Murlidhar, that even if the body of the cheque is filled in different ink by some person other than the accused, still the instrument will be valid. Following paragraphs are worth mentioning: "18. Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the CC No. 25355/1 8 of 19 holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course."
"19. The above provisions have to be read together with Section 118 NI Act which sets out various presumptions as to negotiable instruments. The presumption is of consideration, as to date, as to time of acceptance, as to transfer, as to endorsement, as to stamp. The only exception to this is provided in proviso to Section 118 which reads as under:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an 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."
"20. A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. 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 up in comparison with the signature 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. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a CC No. 25355/1 9 of 19 material alteration for the purposes of Section 87 NI Act." 16 Also in a recent Judgment in "D. Atchyutha Reddy v. State of A.P" through Public Prosecutor 2010(2) RCR 880(A.P) it was held that cheque could be filled up by anybody if it is signed by the account holder of the cheque. It was further held that body of the cheque need not necessarily be written by the accused and it can be in the handwriting of anybody else or typed on a machine, so long as the accused does not dispute the genuineness of the signature on the cheque.
17 From the aforesaid, it is amply clear that to fasten criminal liability upon the accused under Section 138 of the Act it is not necessary that body of the cheque must be filled by the accused. What is important is the signature on the cheque which in the present complaint is admitted by the accused in his statement under Section 313 Cr.P.C. Also from the aforesaid discussed case laws, it is clear that when a person hands over a blank cheque even for security purpose, it must be assumed that such person gives implied authority to the person that the cheque is given to fill up the relevant details. Although, complainant has denied in its cross examination that cheque in question was issued blank still even if it is assumed that the accused had given blank cheque to the complainant still in such a case a deemed authority is given to fill the details of the cheque. Hence, this argument of the learned counsel for the accused is without any force.
CC No. 25355/1 10 of 19 18 Second limb of argument advanced by learned counsel for the accused is that
the cheque in question was issued in the name of RICL ie, Rank Investments and Credit India Ltd. and not in the name of the complainant bank i.e, Barclays Investments and Loans India Ltd., therefore, the present complaint is not maintainable. On the other hand counsel for the complainant has contented that the complainant bank was formerly known as Rank Investments and Credit India Ltd. and subsequently w.e.f., 27.06.2008 the said name has changed to Barclays Investments and Loans India Ltd. but still some borrowers issue cheques towards the repayment of their loan in the name of RICL. As regards the aforesaid contention of learned counsel for the accused, I agree with the submission of learned counsel for the complainant that the cheque towards the repayment of the loan could be issued in the name of RICL i.e., the former name of the complainant bank and mere change of name of the complainant bank is no ground to throw out the present complaint. Moreover, no such suggestion was put to the complainant witness in his cross examination, therefore, this contention of learned counsel for the accused cannot be sustained.
19 Another limb of argument advanced by learned counsel for the accused is that legal demand notice as envisaged by proviso to Section 138 of the Act has not been received by the accused which is sine qua non for prosecution of the complaint under S.138 of the Act.
CC No. 25355/1 11 of 19 20 In retort, learned counsel for complainant has averred that statutory notice
dated 07.12.2009 was issued at the correct address of the accused by speed post and notice is deemed to be served by virtue of presumption under section 27 of General Clauses Act.
21 It is no longer res integra that service of legal demand notice calling upon the accused to make the payment in 15 days is indispensable for prosecution under Section 138 of the Act. Before giving my finding on the aforesaid issue, a reference to S.27 of the General Clauses Act will be useful. The section reads as under:
"S.27 Meaning of service by post Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
22 The Supreme Court in "K. Bhaskaran Vs. Sankarn Vaidhyan Balan"
(supra), wherein it has been held as under:
"(24) No. doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written CC No. 25355/1 12 of 19 on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
23 In "V. Raja Kumari vs P. Subbarama Naidu & Anr" 2004 (8) SCC 774 , it was held:
In "Madhu v. Omega Pipes Ltd." [1994 (1) ALT (Crl.) 603 (Kerala)] the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice K.T. Thomas (as His Lordship was then) observed as follows:
"In Clause (c) of the proviso the drawer of the cheque is given fifteen days from the date 'of receipt of said notice' for making payment. This affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address, if receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice."
CC No. 25355/1 13 of 19 24 In "M/s Indo Automobiles v. M/s Jai Durga Enterprises and others" 2008
(4) RCR (Civil) it was held that once the notice demanding payment has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective.
25 In M/s Prakash Jewellers v. M/s A .K Jewellers 2002 (2) JCC 1171 , division bench of the Delhi High Court has specifically opined that the notice under section 138 of NI Act can be served either through registered post or UPC. It is also held that if notice is even dispatched by UPC with correct address of the drawer written on it, presumption of the service of the said notice arises. Relevant discussion is contained in para 10 of the judgment which is reproduced below:
10 "As it is section 138 does not prescribe any mode for giving of demand notice by the payee or holder of the cheque.But where such notice is served by post through registered post or postal certificate etc. with the correct address of the drawer written on it , it would raise a presumption of service unless the drawer proves that it was not received by him in fact and that he was not responsible for such nonservice. This is in tune with the principle embodied in section 27 of the General Clauses Act or even Rule 19 A of Order
11.Section 27 of General Clauses Act deals with the presumption of service of notice sent by post and provides that service of such notice shall be deemed to have been affected unless the contrary is proved. This principle is equally applicable to the service of notice for purpose of section 138 of the Negotiable Instruments Act also......."
CC No. 25355/1 14 of 19 26 So it is quite clear from S.27 of General Clauses Act and catena of Judgments
that when a letter is properly addressed, prepaid and posted by registered post , service shall be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.
27 As can be seen from ExCW1/4 and CW1/5, the statutory notice was addressed to the residence of the accused at 2080, Gali Mahavir, Bahadur Garh Road, Delhi - 110 006. It is pertinent to note that the accused did not dispute the correctness of his residential address as furnished on the statutory notice in his statement under Section 313 Cr.P.C and admitted that he has been living at the said address for the last 10 to 12 years. Moreover summons were issued to the accused on the address mentioned in the complaint which is same as on legal notice post which accused entered appearance.
Also the Apex Court in K.Bhaskaran (supra) has held that where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. So, the burden lies upon the accused to prove that he has not been served but he has not placed on record any material to this effect. Only a suggestion was put to CW1 in cross examination that no legal notice was served upon the accused but the same was denied by CW1. In the present complaint, complainant by sending the legal notice by speed post with the correct address written on it has complied with the requirements. In the circumstances of the case and for the above reasons, I hold that statutory notice was sent to the correct address of the accused and therefore I hold that the notice is deemed to be CC No. 25355/1 15 of 19 served. The contention of learned counsel for the accused that notice was not served on the accused does not pass any muster.
28 Now comes the most important ingredient of Section 138 of N.I Act which is the issuance of the cheque for the discharge in whole or in part of a debt. At this juncture, it would be appropriate to refer to the provisions in Section 118 and 139 of N.I Act. Under Section 118, unless the contrary is proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus, in complaints under Section 138 the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The Supreme Court in "Hiten P. Dalal V. Bratindranath Banerjee", 2001 Crl. L.J 4647 while dealing with sections 138 and 139 of NI Act held that whenever a cheque was issued to the complainant for a specific amount, there is a presumption that it is towards discharge of legally enforceable debt. In the event of dispute, the burden is on the accused to prove that there is no subsisting liability as on the date of issuing of cheque and the proof must be sufficient to rebut the presumption and mere explanation is not sufficient. So, there is obligation on the part of the Court to raise the presumptions under Sections 118 and 139 of the NI Act in every case where the factual basis for raising of the presumption had been established.
CC No. 25355/1 16 of 19
29 Recently the Apex Court in Rangappa v. Mohan AIR 2010 SC 1898 has held
that the presumption mandated by S.139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 30 So it is quite clear from the above that there is an initial presumption in favour of the complainant that the cheque has been received for the discharge of debt or liability which needs to be rebutted by the accused. In the present complaint,CW1 has testified that accused took the loan from the complainant vide loan agreement no. LCO11511815561 and towards partial discharge of his liability, accused issued the cheque in question for a sum of Rs 1,02,200/ which got bounced. In cross examination, CW1 stated that till date accused has paid only 7 installments of Rs 3276/ each. The aforesaid testimony of the witness has remained uncontroverted. No suggestion is put to the complainant witness that accused has regularly paid his installments or has repaid substantial amount of his loan. Accused has cross examined the complainant witness but nothing material could be elicited which can advance the cause of the accused. In his statement under section 313 Cr.P.C, accused has admitted availing loan from the complainant vide loan account no. LCO11511815561 pursuant to the execution of loan agreement Ex CW1/6 and also admitted his signature on the cheque in question. Although he has stated that the cheque was issued blank and not towards the discharge of any legal liability but merely deposing the same without placing on record any material will not be sufficient to rebut the presumptions in view of the Judgment in V.S Yadav CC No. 25355/1 17 of 19 (supra). The contention that blank signed cheque was handed over as security inherently arouses dissatisfaction and reservation in the mind. The laudable commercial morality which the legislature seeks to usher in by introduction of Section 138 of NI Act will be frustrated and stultified if such a defence were meekly swallowed by any court. The account holders are expected to deal with their cheques carefully, cautiously and reasonably. They are not expected to deal with their cheques playfully, casually and without deligence. Such a defence that the cheque was handed over as a blank signed and as security may still not be impermissible or impossible in a prosecution under Section 138 of NI Act. But certainly the burden rests squarely and heavily on the indictee who wants to attribute to himself such an improbable and artificial conduct to claim exculpation from liability. Accused has failed to lead any evidence in support of his stand that the cheque was security cheque, therefore in these circumstances, I hold that accused has failed to discharge the onus that cheque in question was not issued for a debt or liability hence the presumption that has arisen in favour of the complainant under section 139 of N.I Act stands unrebutted.
31 The complainant has proved basic facts of borrowing of loan and issuing of Ex.CW1/2 cheque by the accused. Once the basic facts stand proved by the complainant, he discharges the initial burden. Then, it is for the accused to rebut the presumptions that are drawn in favour of the complainant under Sections 118 and 139 of the N.I Act. He can make out his case from material brought on record by the complainant. Though complainant witness was cross examined by the accused, nothing material was elicited to rebut the presumptions under Sections 118 and 139 of N.I Act. It was suggested to CW1 CC No. 25355/1 18 of 19 that complainant obtained blank cheques as security for the loan availed by the accused. The said suggestion was denied by CW1. Accused has admitted his signature on the cheque in question. No defence evidence was adduced in defence despite giving several opportunities.
32 Thus the complainant is able to establish that the accused borrowed loan and issued Ex CW1/2 cheque amounting to Rs. 1,02,200/ dated 05/11/2009. On presentation of the cheque, it came to be dishonoured with the remarks "account closed" vide return memo Ex CW1/3 and thereupon the complainant issued ExCW1/4 notice calling upon him to make good the amount covered under the cheque in question. The accused received the notice but failed to give any reply. The complainant presented the complaint. All the essential ingredients of Section 138 N.I Act have been made out by the complainant. Therefore, the accused stands convicted for the offence under Section 138 of N.I Act.
ANNOUNCED IN THE OPEN (NAVJEET BUDHIRAJA)
COURT ON 10.10.2011 METROPOLITAN MAGISTRATE
SPECIAL COURT 06,
DWARKA COURTS, DELHI.
CC No. 25355/1 19 of 19
IN THE COURT OF SH.NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE, SPECIAL COURT06, DWARKA COURTS, NEW DELHI.
In the matter :
BARCLAYS INVESTMENTS AND LOANS (INDIA) LTD.
.........................Complainant
VERSUS
DEVINDER KUMAR
................................ Convict
CC No : 25355/1
PS : Subzi Mandi
Under Section : 138 Negotiable Instruments Act
Present : Counsel for the complainant, Sh. Alok Pandey Convict in person with his counsel, Ms. Poonam O R D E R O N S E N T E N C E 1 Arguments on the point of sentence heard today.
2 Counsel for convict the submits that convict has three minor child and aged mother and father who are depended upon him as he is the sole bread earner of his family.
It is further submitted that convict is facing financial constraints and his economic condition is so deplorable that two of his children has been terminated from the school due to non payment of the CC No. 25355/1 20 of 19 school fees.
3 Counsel for the complainant submits that convict is a habitual offender and has misappropriated the public money, therefore, he should be dealt with strictly as per law. It is further submitted that convict never approached the complainant for settlement during the pendency of this trial.
4 In view of the aforesaid submissions of both the counsels and keeping in mind the fact that at the time of imposition of the sentence it is not only the right of the accused but also that of the victim as well as the society at large has to be taken into account. The object of Section 138 NI Act is to bring about honesty and credibility in such transactions and also to curb the practice of indiscriminate issuance of the cheques without making necessary arrangements for it. Therefore, in view of facts and circumstances of the case and keeping in mind the object of the legislation convict is sentenced to simple imprisonment for 6 months and to pay compensation of Rs.1,10,000/ to the complainant and in default of payment of compensation to be sentenced to further simple imprisonment for 3 months. 5 Copy of the order be given free of cost to the convict.
6 File be consigned to Record Room
ANNOUNCED IN THE OPEN (NAVJEET BUDHIRAJA)
COURT ON 09.11.2011 METROPOLITAN MAGISTRATE
SPECIAL COURT 06,
DWARKA COURTS, DELHI.
CC No. 25355/1 21 of 19