Delhi High Court
Iftikhar Alam vs Naved Hussain Kidwai on 21 December, 2011
Author: M. L. Mehta
Bench: M.L. Mehta
1 THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 575/2011 with Crl. M.A. 19723-24/2011
Date of Order: 21.12.2011
IFTIKHAR ALAM ..... Petitioner
Through: Mr. Prahlad Kumar, Advocate.
versus
NAVED HUSSAIN KIDWAI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This is a revision petition against the judgment and order dated 26.11.2011 of ASJ, Saket whereby the appeal against the impugned judgment and order on sentence dated 05.05.2011 and 18.05.2011 of MM in CC No. 831/2010 was dismissed. The Ld. MM convicted and sentenced the petitioner to undergo imprisonment for a period of six months and to pay compensation of Rs. 1,25,000/- to the respondent was rejected.
2. The respondent filed a complaint under section 138 N.I. Act against the petitioner alleging that in front of other family members, the petitioner was given friendly loan of Rs. 1,25,000/- with the assurance that the same was to be returned by the petitioner to him within a period of 2 or 3 months. The said sum of Rs. 1,25,000/- was paid in three parts, by way of two cheques of Rs. 50,000/- each and one cheque of Rs. 25,000/- . In part discharge of the said debt, the petitioner issued a cheque of Rs. 1,00,000/- dated 27.07.2004 drawn on ICICI Bank which on presentation got dishonoured with the remarks "payment stopped" by the drawer. The respondent served a demand notice dated 28.07.2007 on the petitioner. Since the petitioner did not make the payment in discharge of his liability of debt despite notice, the respondent filed complaint against him before Crl. Rev. 575/2011 Page 1 of 4 the Court of MM. The defence of the petitioner before the MM was that he had given Rs. 1,25,000/- to the complainant for arranging job for his son. Since the respondent/complainant failed to arrange job for his son, the money was returned by him by way of the three cheques. Later on in July 2007 Nadeem and Sohrab demanded a sum of Rs. 1,25,000/- from him for getting the job for his son. He issued the three cheques in question in favour of the respondent/complainant. After suspecting foul play on the part of the complainant, he got the payment stopped. Learned MM dealt with this defence of the petitioner in the following manner:
"12. The accused has come up with the plea that no loan was ever advanced by the complainant to him. In fact he had given Rs.1.25 lakhs to the complainant in December, 2006 for the job of his son. When the complainant could not arrange the job, he returned the money vide the three cheques bearing no. 074539, 128421 and 128482. It was argued that the accused had paid a sum of Rs.1.25 lakhs to the uncle of the complainant Mr. Ahmad Hussain Kidwai who was accompanied by Mr. Nadeem Akhtar and Saurabh Khan. The same stands reiterated in the examination-in-chief of the accused. However during his cross examination, the accused stated that the sum of Rs.1.25 lakhs was paid to the complainant who was accompanied by one Nadeem, Gulab and Surabh. There is apparent contradiction in the testimo9ney of the accused. 12.1. Further, in his statement under Section 313 Cr.P.C. the accused stated that the abovesaid sum was paid to Mr. Ahmad Hussain Kidwai. The associates do Crl. Rev. 575/2011 Page 2 of 4 not find any mention in the said statement. Again, in the complaint to DCP (South) Ex. DW1/B, accused stated that the sum of Rs.1.25 lakhs was paid to the complaint only. There is no mention of the associates in the cokmplaint Ex. DW1/B also. Furthermore, no receipt has been placed on record showing the payment of Rs.1.25 lakh to the complaint. The place and the date of the said payment have not been disclosed by the accused. The onus of proving the payment of Rs.1.25 lakhs to the complainant lied upon the accused. However, his bald statement uncorroborated by any material on record is insufficient to establish the factum of payment to the complaint. There are glaring inconsistencies and contradictions in the plea of the accused as to the payment of Rs.1.15 lakhs to the complainant. The same does not inspire confidence of this Court and deserves to be rejected."
3. The learned MM recorded conviction of the petitioner under section 138 N.I. Act and sentenced him to six months Simple Imprisonment with compensation of Rs.1,25,000/- to be paid to the complainant. In the appeal the judgment and order of the MM was maintained by the ASJ.
4. It is not in dispute that the cheques in question were given by the petitioner to the complainant/respondent. The defence that was taken was not only inconsistent, but, improbable. The fact of issuance of cheques by the petitioner and the same having been stopped payment by him is not in dispute. The presumption of section 139 N.I. Act that the cheques were given in discharge of a legal and enforceable debt or liability, could not be discharged by the petitioner by any probable and believable defence. Further, admittedly, the legal notice that Crl. Rev. 575/2011 Page 3 of 4 was issued by the respondent/complainant was also, admittedly, received by the petitioner. He neither replied the same nor controverted. It was unbelievable that if the contents of the legal notice were not correct, he would have remained quiet. Not only that, he did not even file any reply to the notice, he never chose to controvert the same at any point of time. Even before me learned counsel for the petitioner, when asked about all these, could not give any satisfactory reply.
5. I do not find any illegality or infirmity in the impugned order of ASJ and that of MM. There is no merit in the petition and the same is hereby dismissed.
M.L. MEHTA (JUDGE) DECEMBER 21, 2011 awanish Crl. Rev. 575/2011 Page 4 of 4