Delhi District Court
Sumit Narula vs Rajesh Kaharbanda on 2 December, 2016
IN THE COURT OF SHRI RAMESH KUMAR ASJ/SPECIAL JUDGE
(PC ACT) (CBI)SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Appeal Number 12/2016 & 8060/16
Sumit Narula
S/o Sh Raj Kumar Narula
Proprietor of M/s Kay Sey Marketing
Office at D-23-A, Subhash Market,
Tagore Garden Extension,
Delhi.
........................Appellant /Accused
Versus
Rajesh Kaharbanda
S/o Sh S.D. Kharbanda
Proprietor M/s Kaharbanda Electricals
889/8, Sarai Mehrauli,
New Delhi
..........................Respondent
Date of institution of Appeal : 18/02/2016
Date of Allocation : 19/02/2016
Date of conclusion of arguments : 29.11.2016
Date of Judgment : 02.12.2016
Particulars related to impugned order
C.C. No. : 1051/6/14
PS : Mehrauli
Under Section : 138 of N.I. Act.
Date of impugned order : 14/01/2016 and 18/01/2016
Name of learned Trial Court : Ms Neha
Ld MM-South District,
Saket New Delhi.
Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 1 of 8
Memo of Appearance
Sh Chaitnya Puri, Ld Counsel for Appellant.
Sh Dharmender Arya, Ld Counsel for Respondent.
JUDGMENT
1. The present is a judicial verdict on an appeal filed by the appellant, Sumit Narula against the order, dated 14/01/2016, and order on sentence, dated 18/01/2016, passed by the Ld Trial Court.
2 Present appeal has been filed by the appellant, namely, Sumit Narula, u/s 373 (4) of the Cr.PC against the judgment, dated 14/01/2016, vide which, appellant was convicted u/s 138 of N.I Act and order on sentence, dated 18/01/2016, vide which Ld Trial Court sentenced the accused to pay a compensation of Rs. 1.50 lakhs within a period of 30 days to the complainant, and in default of payment, the convict was to undergo simple imprisonment for 6 months.
3. Trial Court record has been summoned and perused.
4 Brief facts of the case are that the complainant filed a complaint U/S 138 of N.I. Act, against the accused, to the effect that he is running an electrical shop, in the name and style of M/s Kharbanda Electricals at 889/8, Sarai Mehrauli, and accused is proprietor of M/s Kay Sey Marketing (India), and purchased 11 batteries of Q.Rich 160 from the complainant firm, and the complainant firm issued a bill No. 021, dated 23/01/2009, for the same. Accused, in discharge of the said liability, issued cheque bearing No. 411502, dated 13/03/2009, for a sum of Rs. 75900/- drawn on ICICI Bank Ltd, Rajouri Garden Branch, F-144, Rajouri Garden, Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 2 of 8 New Delhi-110027. It is further alleged in the complaint that, complainant deposited the above said account payee cheque, for its realization through its banker i.e. State Bank of India, Mehrauli, New Delhi and same was returned unpaid by the banker of accused on the ground "Funds Insufficient" and complainant received the information of same, on 27/03/2009. Thereafter, complaint made demand within 30 days of receiving of the information, for the payment of cheque in writing, and thereafter, complainant sent the legal notice, dated 22/04/2009, but, despite that, accused failed to make the payment, so complainant filed the present complaint case, U/S 138 N.I. Act. After receipt of the complaint, Ld Trial Court summoned the accused. Complainant also tendered his affidavit in evidence. Thereafter, on his appearance, notice u/s 251 of Cr.PC, was served upon him, to which he pleaded not guilty and claimed trial and matter was put up for defence evidence. Thereafter, accused moved an application U/s 145 (2) of NI Act, which was allowed and complainant was cross examined. Thereafter, matter was listed for Statement of the accused and, after recording the statement of accused u/s 281 Cr.PC, matter was fixed for DE and after recording of defence evidence and hearing of the final arguments, Ld Trial Court had convicted the accused u/s 138 N.I. Act and sentenced the convict to pay a compensation of Rs 1.50 lacs within a period of 30 days to the complainant. In default of payment, the convict had to undergo simple imprisonment for six months. It is further ordered by Ld Trial Court that the compensation amount, if not paid in time, shall be recoverable under the provisions of section 421 Cr.PC.
5. Aggrieved from the said order, appellant, Sumit Narula, has preferred this appeal. It is contended by Ld counsel for appellant that the appellant/accused is an innocent person and has wrongly been convicted, in the present case. It has further been contended that Ld Trial Court passed the Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 3 of 8 judgment and order on sentence, on conjectures and surmises and it is liable to be set aside. It has further been contended that, order on sentence and fine imposed is unjust and arbitrary and without any basis and deserves to be set aside. It has further been contended that ld Trial Court has unjustly and without any legal basis doubled the amount of cheque as fine which, itself shows that the impugned order is bad in law. It has further been contended that Ld Trial Court had failed to appreciate the fact that the batteries supplied were defective and could not be used for any purpose and the same are still lying unsealed with the appellant. It has further been contended that Ld MM failed to appreciate the fact that, appellant, through one Mr Nitin Jain, had duly informed the complainant, about defective batteries and under these circumstances, presentation of cheque by the complainant, itself shows the malafide on the part of the complainant. It has further been contended that the complainant failed to prove its case beyond reasonable doubts to the effect that cheque had been issued in discharge of legal debts. It has further been contended that impugned order of Ld Trial Court is not sustainable in the eyes of law and hence, liable to be set aside.
6 I have heard arguments on behalf of Ld Counsel for the appellant, Ld counsel for the respondent and have carefully gone through the Trial Court record.
7. Section 138 of NI Act has been reproduced herein below for ready reference:-
"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 discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 4 of 8 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 made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine, which may extend to twice the amount of the 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 date on which it is drawn or within the period of its valdity, 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.
8. In the present matter, it is undisputed fact that cheque no. 411502 was issued by the accused. Accused had taken the defence that, he handed over the cheque to one Mr Nitin Jain, for security purpose. Further, it is an admitted fact that there were business transactions between the complainant and accused, as complainant had supplied the batteries to the accused. The defence taken by the accused is that he had purchased batteries from the complainant on the recommendation of Mr. Nitin Jain and Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 5 of 8 received bill and the cheque was given as security and it was told that the cheque would not be honoured till the batteries are sold. It is further defence of the accused that, the said batteries were faulty, hence, he is under no liability towards the same.
9. In the present matter, in the cross examination, complainant had stated that there was no guarantee from their end of the material supplied to any dealer/customer and if any, material received by the customer is found defective the customer had to contact the company directly
10. In the present matter, after going through the record file carefully, it is clear that cheque in question was signed by Sumit Narula as proprietor for Key Sey Marketing India. The said cheque was given in the name of Kharbanda Electronics. It is clear from the record file that Kharbanda Electronics pertains to Rajesh Kharbanda. The said cheque is dated 09/03/2009. Thus, the signature of the accused on the said cheque is undisputed. Further, there is ample evidence regarding the service of legal notice. There is nothing on the record file to show that accused, at any point of time, had paid the amount of batteries received by him from the complainant, namely, Rajesh Kharbanda. The plea taken by the accused to the effect that batteries were defective is of no assistance to the accused as he failed to return the said batteries to the complainant, at any point of time.
11. In view of the facts that all the ingredients of the offence punishable u/S 138 of NI Act are fully met in the present case, I am of the considered view, that Ld Trial Court was fully justified in convicting the accused for the offence punishable U/S 138 of N.I. Act.
12. The main part of Section 138 N.I. Act, provides that the offence Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 6 of 8 is punishable with imprisonment for two years or with fine, which may extend to twice the amount of cheque, or with both. Thus, the stand taken by accused to the effect that Ld Trial Court was not justified in imposing the compensation of Rs. 1,50,000/- , is not tenable. Ld Trial Court was fully justified in imposing the said compensation of Rs. 1,50,000/-. The said compensation was to be paid during the period of thirty days. There was nothing on the record file to show that accused had paid the said amount. Since the compensation amount had not been paid, the convict has to undergo SI for six months, as mentioned in the order of Sentence of Ld Trial Court. Further it may be pointed out that ample opportunities were given to the appellant to settle the matter before the court,but no settlement could be arrived at between the parties.
13 In view of the above , I find force in the contentions made by the Ld Counsel for respondent and to my mind, there is no illegality infirmity or irregularity in the order of Ld Trial Court. In the present matter, the appellant cannot escape from his liability. Accordingly, appeal is dismissed, being meritless.
14 Appeal, is accordingly, disposed of, with the above observations.
15. Accused be taken into custody to undergo the sentence, passed by Ld Trial Court. His bail bond cancelled surety discharged.
16. Benefit of section 428 Cr.PC, if any be given to the convict.
Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 7 of 817. It may be mentioned that nothing herein mentioned above, shall affect the right to recover the amount of compensation/fine as imposed, as per law u/s 421 Cr.PC, as held by Ld Trial Court.
18 A copy of this judgment be sent to Ld. Trial Court along with the trial court record.
19 File related to appeal be consigned to the Record Room.
Announced in the open court (Ramesh Kumar)
On this 2nd of December 2016 ASJ/Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
Sumit Narula Vs Rajesh Kharbanda C.A No. 12/16 & 8060 Page 8 of 8