Delhi District Court
Harender Kushwaha vs Dinesh Chand Srivastava on 31 July, 2024
IN THE COURT OF MS. AMBIKA SINGH,
ASJ-02 (WEST), TIS HAZARI COURTS, DELHI.
Criminal Appeal No. 99/2023
CNR No.DLWT01-002619-2023
HARENDER KUSHWAHA
s/o Sh.Ram Darsh Kushwaha,
R/o C-76-A, Hastsal Vihar,
Uttam Nagar(West)
Delhi-110059 .......Appellant
Vs.
DINESH CHAND SRIVASTAVA
R/o D-1-C/41-C, Janakpuri
New Delhi-110058
THE STATE
........Respondents
Judgment reserved on : 31.07.24
Judgment delivered on : 31.07.24
JUDGMENT:-
1. Vide this order, I shall dispose off the above mentioned Criminal Appeal no. 99/2023 filed against the conviction dated 20.2.2023 and order of sentence dated 24.2.2023 passed by the court of Sh. Karanbir Singh, Ld. Metropolitan Magistrate (NI-
05), for setting aside/quashing the said judgment dated 20.02.23 and order of sentence dated 24.02.23 wherein the Ld. Trial Court directed the accused to pay a fine of Rs.5 lacs with an interest @ CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 1 of 20 12 % from the date of filing the complaint till passing of judgment and the entire amount shall be payable as compensation to the complainant within 60 days and in the event of failure the compensation amount as ordered as above the convict shall undergo SI for a period of 8 months as sentence in default.
2. Brief facts as stated in the appeal by the appellant are that respondent no.1/complainant filed the complaint u/s 138 NI Act on 20.3.2017 bearing CC no. 1740/2017 on the basis of cheque stating therein that appellant/convict had taken a loan of Rs. 5 lacs from him and in discharge of said liability he had issued the said cheque which was returned unpaid on presentation whereupon respondent no.1/complainant issued notice but to no avail. Feeling aggrieved by the said judgment and order on sentence, the appellant has filed the present appeal on the following grounds:
3. That impugned judgment/Conviction order dated 20.2.2023 and order on sentence dated 24.2.2023 are not sustainable. Ld. Trial court has not discussed and considered the judgment of Hon'ble Sureme Court of India titled as "G.Pankajaakshi Amma & Ors. vs. Mathai Mathew(Dead through LRs & another (2004)12 SCC 83 and judgment of "Devender Kumar vs Khem chand (223 (2015)DLT 419). Further the advance of loan of such amount is required to be disclosed under the ITR return(referred to Sec.269 SS of Income Tax Rules and Sec.271 D of Income Tax Act, therefore, not CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 2 of 20 considering these judgment, the impugned sentence order is not sustainable.
4. Ld. Trial court has committed grave error in law in its impugned order dated 20.2.2023 by not considering the Article 19 and Article 21 of the Constitution of India. That Ld. trial court did not consider the fact that there is no averment either in the entire complaint or in the affidavit of respondent no.1/complainant as to when the alleged loan was given and this fact was disclosed in his cross examination, by the complainant and that too without any single document to support his version. Ld. trial court also did not consider the fact that respondent no.1 is retired govt. employee who stated in his cross examination that "he has not shown in income tax return or official documents anywhere that he had given loan in cash."
5. It is prayed that conviction order dated 20.2.2023 and order of sentence dated 24.2.2023 passed by Ld. Trial court be set aside and quashed.
6. Notice of the appeal was issued to the respondent and TCR was also summoned.
7. Ld. Counsel for respondent appeared and filed the reply stating therein that the applicant/convict had taken loan of Rs. 5 lacs from him and in discharge of his liability, he had issued the cheque bearing no. 000042 dated 30.1.2017 drawn on Bank of CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 3 of 20 India, Najafgarh Road Branch, New Delhi. Cheque when presented to the bank, it was returned unpaid with remarks "Insufficent funds" vide return memo dated 1.2.2017, whereupon the respondent no.1/complainant issued notice but to no avail. Therefore, complaint was filed and after the trial, Ld. Trial court convicted the appellant vide impugned order dated. 20.2.2023 and order on sentence dated 24.2.2023. Aggrieved by these orders, the appellant has filed this appeal. Respondent no. 1 raised preliminary objections stating that Ld. Trial court has discussed all the ingredients of offence u/s 138 NI Act in detail and considered various judgments of Hon'ble High Court and Hon'ble Supreme Court of India. There is no illegality in the order passed by Ld. Trial court and hence this appeal be dismissed.
8. In reply to grounds of appeal, respondent no.1 has stated that it is pertinent to mention here that as far as the arguments u/s 269 of Income Tax Act is concerned, it is held in catena of judgments that once the presumption is drawn, it is not for the complainant to prove his paying capacity, moreover, it is for the Income Tax Authorities to see whether the complainant has committed any violation of Income Tax Act or not and in this regard, Ld. Trial court has considered various judgments of Hon'ble High Court and Hon'ble Supreme Court of India.
9. That complainant has filed and exhibited various documents regarding advancement of loan. It is argued by the CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 4 of 20 respondent that Ld. Trial court has not committed any illegality in its impugned orders dated 20.2.2023 and 24.2.2023 and prayed for dismissal of appeal.
10. The jurisdiction of the appellate court is co- extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. A court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. In Surinder Mohan Katwal vs. State of Himachal Pradesh, (2018) 15 SCC 349, Hon'ble Supreme Court of India held as under:
"14.....The powers of the appellate court under Section 386 CrPC are the same as that of the trial court. It is true that the trial court being a primary court of facts, which has the advantage of seeing and observing the witnesses has to thoroughly analyse the evidence and record its findings. In an appeal from a conviction, it is for the appellate court to be satisfied affirmatively that the prosecution case is substantially established and record its own findings to confirm the conviction....."
11. I have heard the arguments of ld. Counsels for both the parties and perused the record carefully.
POINTS FOR CONSIDERATION:
(a) Whether the appellant had drawn a cheque on an account maintained by him with a banker for payment of an amount of Rs. 5 lacs in favour of the complainant?CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 5 of 20
12. The appellant while framing of notice u/s 251 Cr.PC on 6.5.2022 has admitted that he had given blank signed cheque in order to help the complainant for purchase of property in Sagarpur. He has further admitted his signature on the cheque in question. In these circumstances, it is clear that appellant has himself admitted that he had drawn the cheque from the account maintained by him with his bank.
Further in his statement u/s 313 Cr.P.C as recorded on 10.10.2022, he has admitted that cheque in question bears his signature. Therefore, the first contention has been proved that the appellant had issued the cheque in question from the account maintained by him.
(b) Whether statutory presumption under Section 118 (a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received the said cheque for discharge of any debt or other liability can be raised?
13. In Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC, Hon'ble Supreme Court of India held that:
"presumption under Section 139 NI Act is a presumption of law, as distinguished from a presumption of fact. It is obligatory on the court to raise this presumption in every case where factual basis for raising of presumption is established.; There is no discretion with the court but to draw the statutory presumption.
14. In Rangappa Vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India interpreted Section 139 NI Act as under:
" 27. Section 139 of the Act is an example of a CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 6 of 20 reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bounding of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof."
15. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, Hon'ble Supreme Court of India held that"
"in a trial under Section 138 NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions under Section 118 and 139 NI Act help him shift burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability.
16. In Rohit Bhai Jivanlal Patel vs. State of Gujarat & Another, (2019) 18 SCC 106, the accused could not deny his signatures on the cheques and that the said cheques were presented to the bank within the period of their validity and returned unpaid for the reason of either the balance being CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 7 of 20 insufficient or the account being closed. Hon'ble Supreme Court of India held as under:
"15.......Therefore, it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption."
17. In Kalamani Tex and Another Vs. P. Balasubramanina, (2021) 5 SCC 283, Hon'ble Supremene Court of India held that:
"the statue mandates that once the signature of an accused on cheque is established, then these "reverse onus" clause become operative and the obligation shifts upon the accused to discharge the presumption imposed upon him."
18. The appellant admitted that he had drawn the said cheque on an account maintained by him in his bank. As already noted, it is proved that the said cheque was signed by the appellant. Therefore, statutory presumption under Section 118(a) and 139 NI Act that the said cheque was drawn for consideration and the complainant received it in discharge of an existing debt or other liability are drawn against the appellant.
(c) Whether the trial Court rightly presumed existence of legal liability against the appellant?
19. Ld. counsel for the appellant contended that the Ld. trial Court committed a patent error of law in presuming existence of legally enforceable liability of the appellant towards the CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 8 of 20 complainant.
20. In Hiten P. Dalal Vs. Bratindranath Banerjee (supra), Hon'ble Supreme Court of India held that the effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
21. In Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr., Crl. Appeal No. 1105/2021 decided on 10.11.2021, Hon'ble Supreme Court of India held that the words of Section 139 NI Act are quite clear that unless the contrary is proved, it shall be presumed that the holder of the 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.
22. In Rangappa vs. Sri Mohan (Supra), Hon'ble Supreme Court of India held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct.
23. Therefore, the trial Court has not committed any error in presuming existence of a legally enforceable debt or liability against the appellant.
(d) Whether the complainant was required to prove existence of CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 9 of 20 any legally enforceable debt or liability against the appellant?
24. Ld. Counsel for the appellant contended that the complainant did not prove existence of any legally enforceable debt or liability against the appellant. Ld. counsel for the appellant contended that the loan amount was not advanced by way of cheque in violation of provisions of Income Tax Act. He contended that there is no agreement or writing regarding advancement of loan. He contended that the complainant did not prove existence of any legally enforceable debt or liability against the appellant.
In Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 Hon'ble Supreme court of India held that the loan was not advanced through banking mode or there was no receipt regarding the said loan would not make any difference and the finding of the High court that the burden was on the appellant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same was patently erroneous. The finding of the High court that the case of the appellant was highly doubtful was set-aside as under:
"37. The fact that the appellant complainant might have been an Income Tax Practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonor of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference.....
39. In our considered opinion, the High court patently erred in holding that the burden was on the appellant complainant to prove that he had advanced the loan and the blank signed cheque was given to him in CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 10 of 20 repayment of the same. The finding of the High court that the case of the appellant complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above."
25. In Rohit Bhai Jivanlal Patel vs. State of Gujrat & Another (supra), Hon'ble Supreme Court of India held as under:
"20....Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not.... The result of discussion in the foregoing paragraphs is that the major considerations on which the trial court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt....."
26. In Kalamani Tex and Another vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
27. The complainant is not required to prove existence of a legally enforceable debt or other liability as if, the complainant is to prove a debt before a civil Court wherein, the plaintiff is CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 11 of 20 required to prove his claim on the basis of evidence to be led in support of his claim for the recovery of the amount.
28. A dishonor of the cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when it was presented, it was not honored. After drawing presumption under Section 118 (a) and 139 NI Act, the onus is shifted to the accused and unless the accused discharges the onus by bringing on record such evidence demonstrating a probable defence, the complainant can not be called upon to show existence of a legally enforceable debt or other liability.
(e) What is the manner and standard of proof for dislodging presumption under Section 118 (a) and 139 NI Act?
29. As regards standard of proof for dislodging presumption under Section 118 (a) and 139 NI Act, it is settled that the defence has to establish its case on the principle of preponderance of probability.
30. In Rangappa vs. Sri Mohan (supra), Hon'ble Supreme Court of India held that standard of proof for rebutting presumption under Section 139 NI Act is preponderance of probabilities and for that matter, the accused can rely on the material submitted by the complainant, as under:
"27. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 12 of 20 standard of proof for doing so is that of "preponderance of probabilities".
31. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.
32. In Kishan Rao vs. Shankargouda, (2018) 8 SCC 165, Hon'ble Supreme Court of India held that:
"the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. It was held in para 20: (Kumar Exports case, SCC p. 520), "20..... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....."CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 13 of 20
33. Once the signature of the appellant on the said cheque are established, then "reverse onus" clauses become operative. The obligation to discharge the presumption is shifted upon the appellant.
34. The presumptions raised under Section 118 (a) and 139 NI Act are rebuttable in nature. The appellant is required to raise a probable defence and the standard of proof for displacing the presumption is preponderance of probability and not mere possibility. The appellant can lead evidence or rely upon the evidence adduced by the complainant to show non-existence of a legally enforceable debt or other liability for want of consideration.
(f) Whether the appellant is able to raise a probable defence?
35. Briefly stated it is the case of the appellant that he gave the blank signed cheque to the complainant in order to help him for the purchase of property in Sagarpur. It is the defence of the appellant/accused that the complainant has misused the same blank signed cheques. He does not owe any legal liability towards the complainant. The complainant has filed false and frivolous case against him.
In his cross examination CW-1 Respondent/complainant has stated that he retired from Govt.job as EE in DDA in August 2012 when loan was given to accused. He denied that he had taken the cheque in question from the accused to purchase a CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 14 of 20 property in Sagarpur. He denied that accused had not taken any loan from him.
Appellant has examined himself as DW-1 and has deposed that he had not borrowed any loan amount from the complainant though the cheque in question bears his signature but particulars were not filled by him. He had given cheque in blank signed condition to the complainant as the complainant was going to purchase the property in Sagarpur, Gitanjali Apartment. He further deposed that had not taken any loan from the complainant. In cross examination, he has admitted that he and complainant are neighbors in their village., He denied that he had even took loan of Rs. 5 lacs. He admitted that he had given cheque in question. Complainant had told him that he will deposit the corresponding amount in his bank account and encash the same through cheque.
The defence taken by the accused is not supported by any documentary evidence and there is no other defence witness to prove the stand taken by the appellant.
36. After carefully scrutinizing the testimony of aforesaid witness, it is crystal clear that the defence taken by accused is a sham one. Ld. Trial Court has rightly observed that accused did not place any kind of evidence on record to prove his defence and he just created a false story to escape from his liability. There is nothing in the cross examination to suggest otherwise.
37. It has also been contended by Ld. counsel for appellant that complainant had no capacity to pay the amount. In his cross CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 15 of 20 examination, complainant has deposed that at that time, balance in his bank account was Rs. 38 lacs. He is an income tax payee. Further the contention raised by the appellant that an amount of Rs. 20,000/- or more can not be given as loan in cash is meritless. I have already discussed that is is settled law that it is for the income tax authorities to see whether the complainant has committed Income Tax evasion or any violation of Income Tax Act or not and merely contending that the amount was given in cash does not absolve the liability of the appellant.
As far as the contention that the complainant has failed to prove the source of funds, I have already discussed that in his cross examination the complainant deposed that he is retired govt. servant and at that time he had about Rs. 38 lacs in his account. Moreover the amount of Rs. 5 lacs given is not huge amount which could not have been arranged by the complainant. Therefore, capacity of the complainant to advance loan amount to the appellant/accused is above bold.
As regard to the contention that the said cheque was blank signed cheque and the remaining particulars are written in different ink with different pen is concerned, it may be relevant to take note of judgment in Bir Singh vs. Mukesh Kumar (supra), as under:
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption u/s 139 of the N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
38. As regards contention that a post-dated blank cheque is not CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 16 of 20 a negotiable instrument is concerned, it may be relevant to note that a post-dated cheque is a negotiable instrument and the drawer of the cheque is amenable to penal consequences of Section 138 NI Act.
39. In Bir Singh s. Mukesh Kumar (supra) , Hon'ble Supreme Court of India held as under:
"32....the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of N.I.Act."
40. As regards contention that the said cheque was a security cheque and it was issued without consideration, it can be stated that the complainant, in his examination in chief Ex.CW-1/A categorically stated that the appellant had issued the said cheque towards repayment of the loan advanced to him. The said statement of the complainant remained unchallenged.
41. Further, a security cheque issued for discharge of the present liability as security would not absolve the accused from penal consequences u/s 138 NI Act.
42. In Sripati Singh vs. The State of Jharkhand & Anr. Crl.Appeal No. 1269-1270 of 2021 decided on 28.10.2021, Hon'ble Supreme Court of India held as under:
"16....If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time frame and issues a cheque a security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 17 of 20 defer the payment of amount, the cheque which is issued a security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonored, the consequences contemplated under section 138 and the other provisions of N.I.Act would flow."
43. The complainant presented the said cheque for encashment within its period of validity. The said cheque bearing no. 000042 dated 30.1.2017 of Rs. 5 lacs drawn at Bank of India branch at Najafgarh Road, New Delhi was returned unpaid by the banker of the appellant with the endorsement "Funds insufficient" vide return memo dated 1.2.2017. The complainant issued demand notice within the prescribed period. The appellant failed to make payment of the cheque amount within statutory period. The complaint was within limitation. The complaint established all pre-requisites as required under Section 138 NI Act.
44. The appellant was rightly convicted for committing offence under Section 138 NI Act.
45. There is no manifest error of law or procedure or perversity in the impugned judgment.
In Bhupesh Rathod (supra), Hon'ble Supreme Court of India held that the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque as under:
"29.....The complaint was instituted in October,2019. Almost four and half years have elapsed since then. The punishment prescribed for such an offence under Section 138 of the NI Act is imprisonment for a term CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 18 of 20 which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both. We are of the view that in the given scenario the respondent should be sentenced with imprisonment for a term of one year and with fine twice the amount of the cheque.
46. In Kalamani Tex vs. P. Balasubramanian (supra), Hon'ble Supreme Court of India held as under:
"19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realization of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a."
47. In view thereof, the trial Court has taken lenient view in imposition of compensation. There is no reason to interfere in the quantum of compensation.
48. In the present case, the cheque amount is Rs. 5 lacs. The complaint case was instituted on 20.3.2017. The Ld. trial Court has sentenced to the appellant with fine of Rs. 5 lacs with an interest @ 12% p.a. from the date of filing the complaint till date of order. The entire amount was directed to be payable as compensation to the complainant within 60 days and in the event of failure to pay the compensation amount, the convict was to undergo Simple imprisonment for a period of 8 months as sentence in default. The compensation amount if not paid, shall CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 19 of 20 be recoverable as fine u/s 421 Cr.P.C R/W 431 Cr.PC. The accused is further burdened with cost of Rs. 15,000/- to be paid to the complainant in addition to fine imposed above towards pleaders fee and compensation.
49. Accordingly, the appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is dismissed. I find no infirmity in the judgment dated 20.02.23 and order of sentence dated 24.02.23 passed by the Ld. Trial Court and there is no reason to interfere in the quantum of compensation. The appeal filed by the appellant challenging conviction for commission of offence under Section 138 NI Act is disposed of as above. Appellant is directed to pay fine amount before the Ld. Trial Court itself within 60 days after adjusting the amount already paid, if any.
50. A copy of the judgment along-with trial Court record be sent to the trial Court. Appeal file be consigned to record room.
Digitally signedAMBIKA by AMBIKA SINGH SINGH 13:07:48 Date: 2024.08.01 +0530 Announced in the open court (Ambika Singh) on 31.07.2024 ASJ-02/THC, West/Delhi 31.07.2024 CA No. 99/2023 Harender Kushwaha Vs. Dinesh Chand Page 20 of 20