Delhi District Court
United Exports vs . Om Sai Agencies & Another on 15 July, 2010
IN THE COURT OF SH. AMIT KUMAR, JSCC/ASCJ/MM(NW)
ROHINI COURTS, DELHI
CC No.2178/10/03
ID No.02404R1013802003
United Exports Vs. Om Sai Agencies & Another
U/s : 138 NI Act
P.S : Vikas Puri
JUDGMENT
1. Name of the complainant : United Exports
2. Name of the accused, parentage & : L.B. Thapa
address S/o Late Sh. J.B. Thapa
R/o 425, Khirki Janta Flats,
Malvia Nagar,
New Delhi110011
3. Offence complained of or proved : 138 NI Act
4. Plea of the accused : Pleaded not guilty
5. Date of institution of the case : 17.05.2003
6. Date of reserve for Judgment : 03.06.2010
7. Final Judgment : Convicted
8. Date of such Judgment : 12.07.2010
BRIEF REASONS FOR THE DECISION OF THE CASE :
1. Present is a complaint u/s 138 of Negotiable Instruments Act on the averments that the complainant is a partnership firm supplying different varieties of rice and the accused purchased variety of rices vide several orders from the complainant and a running account of the accused was maintained in the regular course of business and an amount of Rs.1,64,768.90 paise remained due towards the accused and in discharge of this liability, accused issued three cheques bearing No.534410 dated 15.01.03 for a sum of Rs.66,355/, No.534412 dated 24.01.03 for a sum of Rs.19,357/ and No.534413 dated 31.01.03 for a sum of Rs.74,954/ which on presentation were dishonoured on 07.03.03 and 08.03.03 for the reasons 'insufficient funds' despite the assurance of the accused that they will be encashed on presentation. Thereafter, a legal demand notice dated 01.04.03 was served upon the accused, but no payment was made. Hence, the present prosecution. Accused was summoned for the offence punishable u/s 138 of Negotiable Instruments Act. Notice u/s 251 of the Code of Criminal Procedure was served upon the accused who pleaded not guilty and claimed trial.
2. Thereafter, complainant in his after notice evidence has examined one Gulshan Kumar Marwah, their attorney on affidavit who has reiterated the contents of the complaint and his pre summoning evidence and has proved on record the power of attorney in his favour Ex. CW1/1, resolution of the partnership firm Ex. CW1/2, certificate of registration of partnership firm Ex. CW1/3, running statement of account as maintained in the regular business course Ex. CW1/4, invoice of the goods supplied to the accused Ex. CW1/5 to Ex. CW1/10. The cheques in question Ex. CW1/11 to Ex. CW1/13, returning memo Ex. CW1/14 to Ex. CW1/16, legal notice Ex. CW1/17 and its postal receipt, courier receipts, UPC envelopes and AD cards are Ex. CW1/18 to Ex. CW1/28. The witness was cross examined wherein he has admitted that there are two partners of the partnership firm namely Usha Malhotra and Harish Narang and he admitted a document Ex. CW 1/D1 for a sum of Rs.50,000/ received from the accused against bill No.37 dated 28.10.02. It is the defence of the accused that the payments were already made prior to filing of this complaint and as such there is no liability towards the cheques in question and further that the cheques were lying with the complainant as a security which have been misused. The complainant has also examined his accountant as CW2 namely Pradeep Budhiraja who has duly identified the signatures of both the partners on the power of attorney in favour of CW1, resolution Ex. CW1/2 and the partnership registration certificate Ex. CW1/3. He has also admitted that he himself has received payment on behalf of the complainant vide Ex. CW1/D1. Though complainant has examined both the bankers as CW3 and CW4 but their examination is not much significant since execution of cheques and their dishonour is not disputed.
3. Statement of accused was recorded u/s 313 of the code of criminal procedure wherein he admitted the signatures on the cheques and has stated that the blank signed cheques were given to the complainant as per business practice and when the material as per orders were not supplied, the complainant was requested to return the cheques which was not done despite pursuance and cheques have been misused by the complainant. The accused chose to lead defence evidence but examined none despite opportunity given.
4. Ld. Counsel for the accused in his oral arguments as well as written submissions has strongly relied upon the notice served upon the accused u/s 138 of Negotiable Instruments Act. He has drawn my attention to the fact that the aggregate of all the three cheques comes to Rs.1,60,666/ whereas the amount demanded from the accused in the notice is Rs.1,64,768.90 paise and as such it has been argued that the notice is bad in law and does not fulfill the essential requirement of section 138 and 139 of Negotiable Instruments Act and accused is entitled to be acquitted on this ground alone. He has further argued that the complainant has materially concealed the receipts of Rs.50,000/ which was received vide Ex. CW1/D1 and as such there is no liability towards the cheques. In this regard, he has also moved an application u/s 340 of the code of criminal procedure seeking prosecution of the complainant only for the reasons that they have tried to mislead this court by concealing the payment of Rs.50,000/ as made vide Ex. CW1/D1. He has also relied upon the Judgments of Hon'ble Supreme Court in the cases titled as 'Suman Sethi Vs. Ajay K. Churiwal and Another' reported in (2000) 2 SCC 380; 'K.R. Indira Vs. Dr. G. Adinarayana' reported in (2003) 8 SCC 300 and 'M/s Rahul Builders Vs. M/s Arihant Fertilizers & Chemical & Another' reported in 2008 (1) CCC 122 (SC).
5. Ld. Counsel for the complainant, on the other hand, has argued that as far as the receipt of Rs.50,000/ vide Ex. CW1/D1 is concerned, the same has never been disputed by the complainant as a perusal of the statement of account Ex. CW1/4 will reveal that due credit has been given to this amount of Rs.50,000/ received in cash and he has stated that this payment was made on account and not against a particular cheque and therefore has no relevance to the cheques in question. He has also argued that the notice clearly shows that all the three cheques have been specifically mentioned and only a calculation mistake cannot be a ground to dismiss the complaint only for the reasons that it is a defective notice.
6. I have heard the submissions. Admittedly, the signatures on the cheque i.e. its execution, the transaction between the parties, service of legal demand notice are not disputed. The only dispute between the parties is in respect of the liability towards the cheques in question and further the validity of the legal demand notice Ex. CW1/17. As far as the liability is concerned, statement of account Ex. CW1/4 will show that the payment made by the accused vide Ex. CW1/D1 on 16.01.03 has been duly reflected in this statement of account vide entry dated 16.01.03. Otherwise, it is not mentioned in this receipt Ex. CW1/D1 that this amount has been paid against any of the cheques in question and the same has been received against a bill dated 28.10.02 and that too on account and not towards settlement of that particular bill. Otherwise also even it is considered that this payment was made by the accused against a particular cheque in question i.e. Ex. CW1/11, the liability of the accused still remains against the other two cheques Ex. CW1/12 and Ex. CW1/13 and this fact is even strengthen from the fact that the receipt of goods vide invoices Ex. CW1/5 to Ex. CW1/10 is not disputed by the accused which shows that the goods were supplied to the accused and cheques in question were issued by him in respect of the liability. Otherwise also, it is highly improbable that all these odd amounts will be filled by the complainant in blank cheque and not in respect of the entire due amount, which should have been if the blank cheques were lying with the complainant and therefore, the liability has been duly proved by the complainant in this case.
7. As far as the validity of the legal notice is concerned, in the Judgment relied upon by the counsel for the accused in the case titled as Suman Sethi Vs. Ajay K. Churiwal and Another (supra), it has been held by the Hon'ble Supreme Court as under: "It is a wellsettled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. the cheque amount. If no such demand is made, the notice no doubt would fall short of its legal requirement. Where in addition to the "said amount" there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the breakup of the claim, the cheque amount, interest, damages, etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regardless as bad.
8. Hon'ble Supreme Court has specifically held in this Judgment that notice has to be read as a whole and if the cheque amount can be ascertained from the notice, any superfluous or additional claim will not invalidate the notice. In the present case, para No.4 of the notice clearly shows that the three cheques in question were issued by the accused in part payment of discharge of his liability and in subsequent paras No.5 and 6, it has been specified that these three cheques have been dishonoured on presentation and the fact that instead of mentioning the exact amount of three cheques i.e. Rs.1,60,666/, an amount of Rs.1,64,768.90 paise was mentioned seems to be only a calculation mistake. Otherwise also in para No.8 and 9 of the notice, complainant has clearly stated that the accused has no intentions to make the payment of these cheques and as such is required to pay the same within 15 days from the date of receipt of the notice. Therefore, I find no legal or technical infirmity with the notice Ex. CW1/17. The Judgments relied upon by the counsel for the accused are entirely distinguishable since in the Judgment of Suman Sethi Vs. Ajay K. Churiwal and Another (supra), Hon'ble Supreme Court has held that if apart from the cheque amount of Rs.20 Lakhs, certain additional charges are also demanded, the same will not invalidate the notice. In Judgment of K.R. Indira Vs. Dr. G. Adinarayana (supra), a joint notice was issued in respect of two complaints filed by the husband and wife and the Hon'ble Supreme Court was of the opinion that the since the amount cannot be separated, a consolidated notice was not valid and in the Judgment of M/s Rahul Builders Vs. M/s Arihant Fertilizers & Chemical & Another (supra), against a cheque of Rs.1 Lakh, demand of the entire dues of Rs.8,72,409/ was made in the notice and in these facts, Hon'ble Supreme Court observed that the notice is not a valid notice.
9. The facts in the present case are entirely different since the notice not only specifically mentions about the three cheques with their complete details, but also mentioned in the subsequent paragraphs that these cheques have been dishonoured, an aggregate amount has to be paid. The complainant therefore has proved his case within all the four corners of the offence punishable u/s 138 of Negotiable Instruments Act and the accused is convicted for this offence. Put up for arguments on the point of sentence on 15.07.2010 at 2:00 PM.
Announced in the open court (AMIT KUMAR)
on 12.07.2010 JSCC/ASCJ/MM(NW)
ROOM NO.217, ROHINI
COURTS: DELHI
IN THE COURT OF SH. AMIT KUMAR, JSCC/ASCJ/MM(NW) ROHINI COURTS, DELHI CC No.2178/10/03 ID No.02404R1013802003 United Exports Vs. Om Sai Agencies & Another U/s : 138 NI Act P.S : Vikas Puri ORDER ON SENTENCE 15.07.10 Present : None for the complainant Convict in person with counsel Shri Rajesh Kumar, Adv. Arguments heard on the point of sentence. It is stated by the counsel for the convict that there is no liability towards the cheques in question and the convict has been unnecessarily dragged to this litigation and a lenient view should be taken against the convict.
I have heard the submissions and have perused the record. Payment in this case is pending since 2003 and more than 7 years have passed thereafter. I am not inclined to take any lenient view or to grant the benefit of Probation of Offenders Act since the cases of dishonour of cheques are on high rise in the society and shall not serve a deterrent to others if a lenient view is taken. Hence, convict is sentenced to simple imprisonment for a period of one year and also sentenced to pay a compensation to the complainant for an amount of Rs.3,20,000/ and in default of payment of compensation, he shall undergo further simple imprisonment for a period of 90 days.
At this stage, an application under section 389 of the Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence to enable him to file appeal against this order. Heard. The application is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to do the needful and till then convict is admitted on bail on his furnishing a personal bond of Rs.25,000/ with one surety of the like amount. Surety bond furnished and accepted till 16.08.2010. File be consigned to Record Room.
Announced in the open court (AMIT KUMAR)
on 15.07.2010 JSCC/ASCJ/MM(NW)
ROOM NO.217, ROHINI
COURTS: DELHI
(Copy of the Judgment and order on the point of sentence is given to the convict free of charges.)