Delhi District Court
Arun Goel vs Kiran Kumar on 6 July, 2012
IN THE COURT OF SH. SANJAY JINDAL JSCCcumASCJ (NW) : DISTRICT COURTS : ROHINI : DELHI Unique ID No. : 02404R0605002008 CC No. 1436/09/08 Arun Goel Versus Kiran Kumar P.S. : Rohini. U/s : 138 NI Act JUDGMENT
a) Name of the complainant : Sh. Arun Goel
S/o Sh. Kunwar Swaroop
Goel.
R/o : B5/169170, Sec3,
Rohini, Delhi85.
b) Name & Address of accused : Sh. Kiran Kumar
S/o Sh. Joginder Pal,
R/o: D17/53, Sector3,
Rohini, Delhi110085.
c) Offence complained of or proved : 138 NI Act.
d) Plea of the accused : Pleaded not guilty
e) Date of institution of the case : 01.09.2008
f) Date of reserving of Judgment : 06.07.2012
g) Final Judgment : Convicted
h) Date of such Judgment : 06.07.2012
BRIEF REASONS FOR THE DECISION OF THE CASE : 1 This is a case/complaint U/s 138 of the Negotiable Instruments Act which was assigned to this Court by Hon'ble High Court vide Order No. 145192/F.3(4)/MM dated 02.01.2009. CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 1/8 2 The brief facts as per the case of the complainant are that the complainant and the accused were known to each other and was having cordial relations with the complainant. That the accused approached the complainant in January, 2008 for arranging loan of Rs. One lakh and on his request, the complainant gave a sum of Rs. One lakh on 09.01.2008 against the receipt.
3 A cheque bearing No. 895016 dated 09.07.2008 for Rs. 1,00,000/ drawn on the Vijaya Bank, Sector3, Rohini, Delhi was issued by the accused in favour of the complainant for discharge of his liability. The said cheque was dishonoured on presentation before the bank vide memo dated 19.07.2008 due to insufficient funds. The complainant got issued a legal notice dated 26.07.2008 but the accused has failed to make the payment despite service of the said notice. Hence, this complainant.
4 Vide order dated 10.09.2008, the accused was summoned U/s138 NI Act. Notice for the commission of offence U/s 138 of the Negotiable Instruments Act was served upon the accused on 31.05.2010 to which he pleaded not guilty and claimed trial. CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 2/8 5 In support of his case, the complainant examined himself as CW1 at the time of presummoning evidence. After serving of notice U/s 251 Cr.P.C on 31.05.2010, the matter was initially listed for complainant's evidence but on the next date of hearing i.e., on 15.11.2010, the matter was proceeded as per the law laid down by the Hon'ble High Court of Delhi (Rajesh Agarwal vs. State & Another, 171 (2010) DLT 51) and the accused sought permission to move application for recalling of the complainant for cross examination as per the above judgment. During course of trial various opportunities were given to the accused but he failed to move any application for recalling of the complainant U/s 145(2) of the NI Act nor any defence evidence has been led. After closure of the opportunity for DE on 4.02.2012, the matter was listed for final arguments straight way as per the ratio of the Judgment in the case of Rajesh Agarwal's case supra. 6 I have heard the counsel for parties and perused the record. It is contended on behalf of the complainant that the case of the complainant has been duly proved with the help of evidence led by CW1 which has remained unrebutted and unchallenged for want of cross examination and defence evidence. It is further argued that CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 3/8 there is no defence, whatsoever, put forward by the accused and impliedly and indirectly, the case of the complainant has been admitted. On the other hand, it has been argued on behalf of the accused that total false case has been filed by the complainant against the accused.
7 To prove his case, the complainant has examined himself as CW1 who proved the receipt dated 09.01.2008 Ex.CW1/1, Cheque Ex.CW1/2, cheque return memo Ex.CW1/3 and notice with postal document Ex.CW1/4 & 5. The testimony of CW1 has remained unrebutted and unchallenged as neither the said witness has been cross examined on behalf of the accused as per the provisions of Section 145(2) of the NI Act nor any defence evidence has been led. 8 In order to attract the liability of the accused U/s 138 of the NI Act, the complainant is required to prove :
a) that the accused issued the cheque No. 895016 dated 09.07.2008 for Rs.1,00,000/ drawn on the Vijaya Bank, Sector3, Rohini, Delhi for the discharge of legal debt/ liability;
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b) that the complainant presented the said cheque to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier;
c) that the said cheque was dishonoured by the banker of the accused due to insufficiency of funds in the account of the accused;
d) that the complainant made the demand for the payment of said amount of cheque by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheque;
e) that the accused failed to make the payment of the amount of the cheque within 15 days of the valid legal notice of demand; and
f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the NI Act accrued to him.
9 It is clear from the evidence that all the relevant documents CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 5/8 have been duly proved on record by way of the unrebutted testimony of the complainant. It has been so discussed by the Hon'ble High Court of Delhi in the Judgment of 'Rajesh Agarwal v. State & Anr., 171 (2010) Delhi Law Times 51' that since the mandate of Legislature is trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of Section 145(1) of N.I. Act and has to be read during the trial. The witnesses i.e., the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. One must not forget that the offence under Section 138 of NI Act is not of the kind of offence as in IPC where the State prosecutes a person for offence against the society. The offence under Section 138 of NI Act is an offence in the personal nature of the complainant and it is an offence made under NI Act so that the trust in commercial transaction is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under Section 138 NI Act, he alone has to take the plea of defence and CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 6/8 burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the Court and then proving this defences is on the accused.
10 As per Section 139 of the NI Act, it has to be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability. There is legal presumption that the cheque was issued for discharging a liability and such presumption can be rebutted by the person who drew the cheque in dispute but such a presumption operating in favour of the complainant has not been rebutted by the accused by any reliable means. The accused has not put forward any defence at any stage. The accused has not filed any application seeking recalling of the complainant for cross examination as per law discussed above. In such eventuality, the presumption discussed hereinabove shall apply against him.
CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 7/8 11 In view of above discussions, I am of the view that the complainant has successfully proved a case for the offence punishable U/s 138 NI Act against the accused beyond reasonable doubt. Hence accused Kiran Kumar is held guilty and convicted for the said offence. Let him be heard on the quantum of sentence.
Announced in the open Court Today on 06.07.2012 (SANJAY JINDAL) JSCC/ASCJ (NW)/Rohini Courts Delhi CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 8/8 Unique ID No. : 02404R0605002008 CC No. 1436/09/08 Arun Goel Versus Kiran Kumar P.S. : Rohini.
U/s : 138 NI Act 10.07.2012 ORDER ON SENTENCE Present: Complainant with counsel. Convict with counsel.
Vide judgment dated 06.07.2012, the accused has been convicted for the offence U/s 138 of the Negotiable Instruments Act.
Arguments on the quantum of sentence are heard. Ld. Counsel for the convict has submitted that the convict is serving as Manager in a reputed Multinational Company and that she is suffering from various ailments and that she is having clear antecedents. It is prayed that lenient view may be taken. On the other hand, ld. Counsel for the complainant has submitted that the convict may be awarded with maximum punishment and no lenient view may be taken.
I have given my thoughtful consideration to the facts and circumstances of the case in the light of the submissions made before CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 9/8 me.
In the entirety of the facts and circumstances, convict Kiran Kumar is sentenced to undergo Simple Imprisonment for a period of six months and he is further directed to pay a compensation of Rs. 2,00,000/ (Rupees Two Lakhs) to the complainant, in default, the convict shall further undergo SI for a period of three months.
At this stage, one application U/s 389 Cr.P.C has been moved on behalf of the convict for suspension of the sentence to enable him to prefer an appeal before the Appellate Court.
Heard.
In the given facts and circumstances, the application is allowed and the convict is admitted to bail on furnishing of personal bond in the sum of Rs. 20,000/ with one surety in the like amount. Bonds furnished and accepted. The operation of sentence is suspended till 09.08.2012.
Copy of judgment and order on sentence be supplied to the convict free of costs.
The file be consigned to the Record Room.
(SANJAY JINDAL) JSCC/ASCJ (NW): ROHINI :DELHI 10.07.2012 CC No. 1436/09/08 Arun Goel Vs. Kiran Kumar 10/8