Delhi District Court
C.A No. 125/2019 Anil Sareen vs . Asharfi Lal Date Of Decision: ... on 24 May, 2019
C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019
IN THE COURT OF ADDITIONAL SESSIONS JUDGE04:
CENTRAL DISTRICT, TIS HAZARI: DELHI
PRESIDED BY MS. PINKI
IN THE MATTER OF
Criminal Appeal No. : 125/2019
CNR No : DLCT010034082019
Anil Sareen
S/o Late Mr. O.P. Sareen
R/o B1/37, DIF (Top Floor),
Dilshad Colony Extension,
Village Brahmpur @ Bhopura,
Ghaziabad, U.P
Also At: 01/A3, Dilshad Garden,
Delhi110095 ...... APPELLANT
VERSUS
Mr. Asharfi Lal,
S/o Late Mr. Ramji Lal,
R/o C79, Gali No.4,
Shastri Park, Delhi110093
..... RESPONDENT
Date of Institution : 14.03.2019
Date of Reserving the Order : 17.05.2019
Date of Order : 24.05.2019
DISMISSED Page No.1/15
C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019
JUDGEMENT
1. Vide this order this court shall dispose off the present criminal appeal filed against impugned judgment dated 21.12.2018 and order on sentence dated 19.02.2019 passed by learned Metropolitan Magistrate04, Negotiable Instruments Act, 1881 Central District, Delhi in complaint case no. 535247/16 titled "Asharfi Lal Vs. Anil Sareen"vide which appellant/convict has been awarded sentence to undergo simple imprisonment for a period of one year and is also directed to pay fine of Rs. 9,20,000/ i.e. double the cheque amount and in default of payment of the same, the convict shall suffer simple imprisonment for six months for the offence punishable under Section 138 of The Negotiable Instruments Act, 1881 (herein after called the Act). The amount of Rs. 8,00,000/ was ordered be paid to the complainant/respondent to recompense him. Further, in respect of the remaining amount of Rs. 1,00,000/, the convict/appellant is directed to deposit the same in the Army Relief Funds in www.bharatkeveer.com and Rs. 20,000/ in court as fine.
2. The appellant/convict has impugned judgment dated 21.12.2018 and order on sentence dated 19.02.2019 passed by learned Metropolitan Magistrate04, Negotiable Instruments Act. The DISMISSED Page No.2/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 present appeal has been filed on 13.03.2019.
3. The appellant had appeared with Mr. Rahul Dev before Mr. Vimal Kumar Yadav, Learned Special Judge, P.C Act CBI Central on 14.03.2019. He was admitted to bail subject to his furnishing personal bond and surety bond in sum of Rs. 25,000/. Matter was adjourned for 19.03.2019. On 19.03.2019 respondent complainant had appeared with Mr. Amit Kumar Advocate, vakalatnama was filed. Application u/s 148 of The Negotiable Instruments Act seeking direction to the appellant to deposit amount was moved by the respondent. It was not pressed as appeal itself was taken for disposal. Initially the appellant had sought time to resolve the issue without depositing or paying any amount, even the amount of Rs. One lakh which he promised to pay to the respondent on 19.03.2019 itself through his telephonic talk with the respondent. Matter was adjourned for judgment on 29.03.2019.
4. On 29.03.2019 appellant had appeared through Mr. Rahul Dev, Advocate an application seeking exemption from personal appearance was moved on behalf of appellant by his counsel on medical grounds which was allowed subject to filing of medical certificate on the next date of hearing i.e. 03.04.2019. Mr. Vimal Kumar Yadav, Learned Special Judge (PC Act) CBI08 DISMISSED Page No.3/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 Central District had allowed the application and matter was adjourned for judgment on 03.04.2019. On 03.04.2019 no one had appeared for the appellant. Bailable warrants in sum of Rs. 5,000/ were issued against the appellant returnable by 06.04.2019. On 06.04.2019 again no one had appeared for the appellant. Mr. Amit Kumar, Advocate had appeared for the respondent. Bailable warrants were not issued for 06.04.2019 due to paucity of time. Matter was adjourned for 08.04.2019.
5. On 08.04.2019 no one had appeared before Mr. Vimal Kumar Yadav, Learned Special Judge (PC Act) CBI08 Central District and matter was transferred to this court, at that time presided by learned Predecessor Mr. Prashant Kumar. On 08.04.2019, Mr. Rahul Dev counsel for the appellant had appeared before the Learned Predecessor of this court, however, the appellant preferred not to appear. Mr. Amit Kumar counsel for respondent had also appeared and application was moved by counsel for the appellant praying for cancellation of bailable warrants. A cost of Rs. 6000/ was imposed upon the appellant to be paid to the respondent vide order dated 08.04.2019 passed by learned Predecessor of this court and the matter was adjourned for 14.05.2019.
6. On 14.05.2019, Mr. Amit Kumar, Advocate for the respondent DISMISSED Page No.4/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 had appeared, however, none had appeared on behalf of the appellant and matter was adjourned for 17.05.2019 for orders after hearing arguments on behalf of respondent. It was also ordered that in case learned counsel for appellant wish to argue, may argue by 16.05.2019. On 16.05.2019 Mr. Rahul Dev, Advocate for appellant had appeared, however, appellant was absent. Cost of Rs. 6,000/ imposed upon the appellant as per order dated 08.04.2019 was also not paid and the matter was adjourned for 17.05.2019. On 17.05.2019, proxy counsel for respondent appeared however none had appeared on behalf of the appellant and matter was adjourned for orders on 20.05.2019. On 20.05.2019, court was on leave and therefore order is being passed today.
7. Submissions on behalf of respondent have been heard and considered. The record as well as trial court record has been carefully and thoroughly perused.
8. The appellant did not comply order dated 08.04.2019 passed by learned Predecessor of this court and has not paid the cost in the sum of Rs. 6,000/ imposed by learned Predecessor of this court and no one has argued on behalf of the appellant despite ample opportunity granted to the appellant.
DISMISSED Page No.5/15C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019
9. The brief facts as borne out from the present appeal are that appellant/convict in discharge of liability to repay the amount paid towards sale purchase of a flat by the respondent/ complainant issued the cheque in question bearing no. 960556 dated 29.12.2008 for a sum of Rs. 4,60,000/ drawn on Indian Bank, Kashmere Gate, New Delhi110006 in favour of the respondent/complainant which upon presentation got dishonoured for the reason "Refer to drawer and signature differ" and even after the expiry of statutory period of fifteen days of service of legal notice dated 12.01.2009 did not pay the cheque amount.
10. The appellant has challenged the judgment dated 21.12.2018 interalia on the grounds that the judgment dated 21.12.2018 and order on sentence dated 19.02.2019 is wrong in law and on facts of the case; the learned Trial Court has committed irregularities and manifest error on the face of record; no proper opportunity was given to crossexamine the complainant by the appellant and to lead his defence evidence and just relied on the false facts disclosed by the counsel for the respondent; the order has been passed one sided; it has caused serious prejudice to the appellant; the learned Trial Court did not appreciate the material on record and the respondent has failed to prove his case according to the crossexamination on behalf of the appellant.
DISMISSED Page No.6/15C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 The learned Trial Court did not appreciate the true facts and material on record.
11. Per contra, learned counsel for respondent has submitted that the impugned judgment and order on sentence do not suffer from any infirmity and there is no error and ample opportunity was granted to the appellant for trial.
12. A perusal of record shows that complaint case no. 535247/16 titled "Asharfi Lal Vs. Anil Sareen" was filed on 09.02.2009. The appellant/accused was summoned vide order dated 20.04.2009. He did not appear and vide order dated 17.03.2011 bailable warrants were issued against him observing that the appellant/accused was deliberately avoiding the service of process. Pursuant to order dated 17.03.2011 passed by learned M.M05 Central, the appellant/accused appeared with his counsel Mr. Amit Sinha and surety Mohd. Shakil and he was granted bail, however, he did not have sufficient surety at that time. He had furnished his personal bond on 28.06.2011. His surety bond was accepted on 05.08.2011. The matter was settled in Mediation Cell on 22.11.2011. Thereafter, Non Bailable Warrants were issued against him vide order dated 24.11.2011 which were stayed on 24.12.2011 and 03.01.2012. Appellant had sought exemption on 13.01.2012 and 02.04.2012.
DISMISSED Page No.7/15C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 Appellant again remained absent on 07.09.2012 and 07.02.2014. The application under Section 145(2) of The Negotiable Instruments Act, was considered on 24.05.2013 in presence of the appellant and Learned Metropolitan Magistrate has ordered that the defence of the accused that complainant had received the cheque amount in question from the accused in presence of witnesses but did not return the cheque in question thereafter and the same defence is taken in reply to the notice given by the accused. Learned Metropolitan Magistrate has observed that this defence is probable defence and accused needs to be given an opportunity to crossexamine the complainant witnesses. PW1 Mr. Mahesh Kumar Verma was examined on 07.12.2013 in presence of the accused/appellant but no one had crossexamined this witness on behalf of the accused/appellant despite opportunity. On 21.04.2015 accused/appellant was present, complainant/respondent was ready for his testimony i.e. examinationinchief as well as crossexamination however accused/appellant sought adjournment as his counsel was not available and adjournment was granted. The complainant/ respondent remained absent on 02.07.2015, 04.09.2015 and 09.11.2015. On 09.11.2015, the complainant/respondent was directed to appear and prosecute the complaint failing which it shall be dismissed for non prosecution. On 20.09.2016, in presence of the appellant/ DISMISSED Page No.8/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 accused, the learned Trial Court has granted last and final opportunity to the accused to crossexamine the complainant. On 12.12.2016, it was also ordered that no further opportunity shall be granted and any default shall be burdened with heavy cost and shall lead for closing of the right of the accused. 12.12.2016 was declared holiday and on 14.12.2016, accused had appeared with Mr. Pankaj Kumar, Advocate and adjournment was sought on the ground that learned counsel for accused has been engaged recently. Adjournment was granted subject to cost of Rs. 500/ and matter was adjourned for 21.04.2017. On 21.04.2017 cost was paid. On 28.08.2017, complainant evidence could not be recorded due to non availability of the stenographer and matter was adjourned for D.E on 13.10.2017. Thereafter vide order dated 18.12.2017, learned Trial Court has directed the accused/counsel to file a detailed application under Section 254 of The Code of Criminal Procedure, 1973 citing the relevancy of the witnesses to be examined and documents to be produced and copy of the same be furnish to counsel for complainant a week prior to the next date of hearing subject to cost of Rs. 4,000/ . As per order dated 06.06.2018, accused/ appellant had appeared with Mr. Rahul Dev Advocate and filed his vakalatnama. Since, opportunity granted to the accused vide order dated 18.12.2017 was not availed hence D.E was closed on 06.06.2018 and matter DISMISSED Page No.9/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 was adjourned for final arguments and after hearing final arguments, vide impugned judgment dated 21.12.2018 appellant was convicted and he was sentenced as mentioned in para supra vide order dated 19.02.2019.
13.It is pertinent to mention that admittedly the defence evidence was closed on 06.06.2018, the appellant has not challenged that order and has taken one of the grounds challenging the impugned judgment.
14. Vide order dated 28.08.2017 matter was adjourned for DE in presence of parties as well as their counsel, however, this order dated 28.08.2017 has also not been challenged by the appellant for the reasons best known to him. The accused/appellant had appeared with Mr. Rahul Dev on 06.06.2018 when Mr. Rahul Dev had filed vakalatnama and no such steps have been taken praying for crossexamination of the complainant and for leading defence evidence. The testimony of PW1 Mahesh Kumar Verma was recorded on 07.12.2013 in presence of the accused/ appellant but he was also not crossexamined despite opportunity.
15. The learned Trial Court has rightly observed that the original cheque Ex CW 1/2 and issuance of the same is admitted by the DISMISSED Page No.10/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 accused/appellant in his reply to the legal notice dated 12.01.2009 wherein accused/appellant has admitted the cheque in question was given to the complainant/respondent as security on assurance that complainant/respondent will return the same upon receipt of due amount. The accused/appellant has not denied during the trial that he did not issue the cheque. The accused/appellant has not crossexamined the complainant/ respondent despite ample opportunity.
16. While dealing with the fact that the cheque has been issued in discharge of legal liability, the Trial Court has rightly observed that the signatures on the cheque were admitted, therefore, the presumption raised under Section 139 of the Negotiable Instruments Act, 1881 becomes applicable and the issuance of cheque in discharge of the legal liability stands proved. It has been rightly observed that the presumption under Section 139 Negotiable Instruments Act, 1881 is in favour of the complainant once he file the necessary documents i.e. dishonoured cheque, returning memo, legal notice and delivery proof and has averred that the cheques were issued for legally enforceable debt which the accused/appellant has failed to pay despite expiry of fifteen days of the delivery of legal notice. The complainant has led his evidence by way of affidavit. In this case the accused/appellant has approached the DISMISSED Page No.11/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 complainant/respondent for sale of residential flat and complainant/respondent had paid a sum of Rs. 6,60,000/ at the time of execution of agreement to sell when accused/appellant undertook to execute sale deed within twenty days, accused/ appellant had failed to comply with the undertaking. The agreement to sell executed between the parties was cancelled and accused/ appellant had to repay the amount to the complainant/ respondent, therefore, accused/appellant has issued the cheque in question. The learned Trial Court has also clarified that whereas the complainant in his affidavit in evidence states that Rs. 6,60,000/ were given for the purchase of the flat but the said agreement of purchase Ex CW 1/1 mentions at the back of page 1 that Rs.4,60,000/ balance remains after the cheque of Rs. 2 lakh given by the complainant to the accused was returned by the accused.
17. The learned Trial Court has also observed that vide order dated 28.08.2017 case was kept for D.E and thereafter when accused failed to avail the opportunity to take steps for D.E, it was closed on 06.06.2018. The learned Trial Court has rightly presumed that C.E was closed to which the accused has not taken steps for revival by filing application under Section 311 of The Code of Criminal Procedure, 1973 and evidence of complainant remained unrebutted. The defence of the accused is DISMISSED Page No.12/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 that the transaction between the complainant and accused regarding sale of the flat was cancelled by the complainant and thereafter the accused had returned the cash which is also reflected in his reply to legal notice dated 29.01.2009 but neither the accused had proved such legal notice nor has proved the payment to the complainant. After discussing the same the learned Trial Court has rightly observed that the cheque in question was issued owing to his legally recoverable liability.
18. The learned Trial Court has also rightly observed that the cheque in question was retuned unpaid on 31.12.2008, cheque is dated 29.12.2008, therefore, it was presented for payment within the statutory period of three months. The learned Trial Court has also rightly opined that the cheque was returned unpaid with the remarks "refer to drawer and signature differ' and original return memo has also been proved as Ex CW 1/3 which proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act which is also uncontroverted.
19. It has also been duly proved that the demand notice was issued within thirty days of the intimation of dishonour of cheuqe and it was served upon the accused. The accused has admitted in his defence in notice under Section 251 of The Code of Criminal DISMISSED Page No.13/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 Procedure, 1973 regarding receipt of legal notice and replied the same.
20. The accused has not paid the payment of cheque amount within fifteen days of the receipt of legal notice and therefore the complaint has been filed hence the cheque in question was presented against legally recoverable liability in favour of the complainant and these were got dishonoured for the reasons "refer to drawer and signature differ' and the cheque was drawn and issued on account of the accused for which payment was not made within the period of fifteen days of receipt of legal notice.
21. Keeping in view the totality of the matter, this court is of the view that the judgment of conviction dated 21.12.2019 does not suffer from any infirmity. The sentence awarded by the learned Trial Court is reasonable and it does not require interference even in quantum of sentence/compensation as the learned Trial Court has imposed vide order dated 19.02.2019 i.e. the convict/appellant is directed to undergo simple imprisonment for a period of one year and is also directed to pay fine of Rs. 9,20,000/ i.e. double the cheque amount and in default of payment of the same, the convict shall suffer simple imprisonment for six months for the offence punishable under DISMISSED Page No.14/15 C.A No. 125/2019 ANIL SAREEN Vs. ASHARFI LAL Date of Decision: 24.05.2019 Section 138 of The Negotiable Instruments Act, 1881. The amount of Rs. 8,00,000/ be paid to recompensate him. Further, in respect of the remaining amount of Rs. 1,00,000/, the convict/appellant is directed to deposit the same in the Army Relief Funds in www.bharatkeveer.com and Rs. 20,000/ in court as fine.
22. Trial Court record be sent alongwith copy of order. Appeal file be consigned to recordroom.
Announced in the open court on 24.05.2019 (PINKI) Additional Sessions Judge04, Tis Hazari Courts (Central), Delhi DISMISSED Page No.15/15