Delhi District Court
Mr. Sunil Kumar vs . M/S Narain Jewellers on 17 March, 2010
1
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ /
JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE
COURTS, NEW DELHI
Mr. Sunil Kumar Vs. M/S Narain Jewellers
CC NO. 1099/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1099/1/09
(b) The date of the commission of the
offence : 1.10.1997
(c)The name of the complainant : Sunil Kumar Mehra,
Proprietor of M/S
Technoxl Associates
59/11, Kalkaji, New Delhi
(d) The name of the accused person,
and his parentage & residential address :1. M/S Narain Jewellers, New Delhi House, Barakhamba Road, New Delhi-01
2. Amrit Narain Mehra , Karta,M/S Narain Jewellers, New Delhi House, Barakhamba Road, New Delhi-01 also at M 10, GK Park 1, New Delhi
(e) The offence complained of or proved : U/S 138 N.I. Act
(f) The plea of the accused : Pleaded not guilty
(g) The Final Order : Convicted.
(h) The date of order : 16.2.2010 Facts as borne out from the complaint are as follows:
1. The case set up by Complainant Firm is that it had granted a loan of Rs. 12,25,000/- to accused and accused issued a cheque bearing No. 584937 dated 31.03.1997 drawn on Catholic Syrian 2 Bank Ltd., Connaught Circus, New Delhi which was returned unpaid on presentation by the drawer banks for "Insufficient Fund"
vide return memo dated 01.10.1997. The complainant made a demand for the payment of the said amount of money by giving a demand notice to accused through registered A.D. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant has filed this complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. On 08.06.1999 the Court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused, the Court summoned the accused for offence U/s 138 of the Act.
3. On 3.8.99 accused has appeared pursuant to the summons issued by the Court. On 22.10.1999 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the complainant examined Sh. Sudhir Kumar Mehra, Attorney of the Firm as CW 1. Sh. Purshottam Lal is examined as PW 2, Sh. Dinesh Sharma, Clerk from Khatri Co-operative Bank is examined as PW 3 and Sh. Shaji Kurien , Clerk-cum-cashier is examined as PW 4.
5. Accused in his defence has examined himself as DW1 by way of an affidavit, besides Witness Shri N.R Sundar Asstt Manager, Catholic Bank, DW2 Shri Subhash Chand clerk from State Bank of Bikaner.
36. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation.
7. In his examination U/s 313 Cr.P.C,, recorded on 11.2.2003, the accused has submitted that that he had issued four blank cheques to the complainant and out of which three cheques were filled by Complainant with amount of Rs. 30,000/- to Rs. 37,000/- and these cheques were encashed. Accused stated that the fourth cheque was filled by the complainant with heavy amount without informing accused and which was got dishonoured. Accused stated that he has not received any legal notice. He further stated that he had paid an amount of Rs. 8-9 lakhs to the complainant as final settlement, the details of which he could supply. He stated that he was having a current account with the complainant.
8. I have heard arguments of learned counsels for complainant and ld counsel for the defence and perused the relevant statutory provisions and evidence alongwith written arguments filed on record. Before looking into the factual issues involved herein, let us consider the provisions of Section 138 of Act. The requirements are :
(1) there is a legally enforceable debt (2) the drawer of the cheque issued the cheque to satisfy the whole or the part of the debt (3) the cheque so issued has been returned due to insufficiency of funds.
9. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would 4 shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to granting the relief.
10. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan; AIR 1999 Supreme Court 3762; it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption.
11. In State of Madras Vs. A. Vaidyanatha Iyer: AIR 1958 SC 61; it was held that it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused".
12. In Hiten P. Dalal Vs. Bratindranath Banerjee; AIR 2001 Supreme Court 3897; Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/S 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a 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." 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.
513. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575.
14. From the aforestated settled legal principles, it is crystal clear that Section 118 of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact. The presumption has to be rebutted by proof and not by a statement or plausible explanation. In this regard, I have considered the evidence produced on record.
15. In his pursuit to knock down the edifice of the complainant case, defence has argued with vehemence that there is a complete variance in the case set up by the complainant in the complaint and the evidence adduced in support thereof. It is argued that though in the complaint, a loan of Rs. 12.25 lacs has been shown by Complainant Firm to the accused and in discharge of the same amount, the accused had issued the impugned cheque, whereas in the evidence, CW1 Shri Sunil Kumar, in his deposition talks of the loan of Rs. 16.05 lacs. It is argued that even otherwise, accused has already made all the payments to the complainant and there was no outstanding dues when the cheque Ex.CW1/B was presented by complainant for encashment.
16. It is further argued by defence counsel that in his letter Ex.CW1/D5 dated 17.7.97, it is categorically admitted that the total outstanding liability on the said date was Rs. 7.5 lacs, which amount had been paid by the accused subsequent thereto by 6 different cheques, and as such the complaint filed for the impugned cheque is without consideration and is liable to be dismissed. It is further argued that various payments were made between the period of March 1997 and September 1997. It is argued that these payments are deliberately not disclosed by the complainant in complaint, having made by accused pursuant to the Agreement between parties and the complaint is bad for concealment of material facts. It is argued that in cross examination of CW1, the witness repeatedly pleads about his ignorance of having received the payments without verifying records. It is argued that complainant has not produced the record showing such payments and record, admittedly in its possession. It is argued that in cross examination, the complainant has admitted receipt of various payments between the period of date of issue of cheque and its presentation but the complainant however has tried to improvise its case by stating that the said amounts paid by the accused were towards the interest. It is argued that complainant neither in his complaint nor his pre summoning evidence has mentioned anything about the interest. Ld. counsel for defence in support of arguments has placed reliance upon various judgments of Superior Courts.
17. It is further the contention of defence that the cheque in question though handed over to complainant on 31.3.97 but is presented only on 30.9.97. It is argued that the letter dated 17.7.97 of complainant is silent about the cheque in question or about any interest. A detailed written synopsis has been filed on behalf of accused. Subsequently Additional synopsis alongwith judgments has been placed on record. I have carefully gone into the record as well as the written arguments in the light of the judgments relied upon by parties.
718. It is submitted by the counsel for the accused that the complainant by his own vide document Ex.CW1/D5 dated 17.7.97 has confirmed that the outstanding amount was Rs. 7.5 lacs which was paid through subsequent cheques/ pay order/ cash.
19. Per contra, it is argued by counsel for complainant that from evidence, complainant has proved that the cheque in question was signed by accused which was dishonoured vide memo and despite service of legal notice, accused did not make payment. It is argued that during cross of CW1, nothing material has come out and the complainant has been able to prove his case. It is argued that accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the provisions of NI Act.
20. Now the question is whether the complainant has proved to the hilt, that whether the amount was legally enforceable debt. I have analysed the deposition of witnesses of complainant. Having considered the testimonies, the issuance of cheque is not in dispute. It is proved that the cheque was issued by accused in partial discharge of liability for the entire loan amount of Rs. 16.05 lacs, which was dishonoured for the reasons of Insufficiency of Funds and accused was served with a notice through registered AD within the stipulated time and despite that no payment has been made by him.
21. The main emphasis of defence is that there was no debt or liability payable by accused, as admittedly a sum of Rs. 7 lacs had been paid before presentation of cheque in question and during the intervening period of 31.3.97 and 29.9.97, only a sum of Rs. 7.5 lac as letter date 17.7.97 Ex.CW1/D5 was demanded by complainant. The plea further is that even after September 1997, accused paid a sum of Rs. 1,70,000/- by way of Pay orders/cheques and as such 8 had made the payment of Rs. 8,70,000/-, even before the summons were issued. A meaningful reading of the allegations in the complaint as well as of the statement of the complainant would show that the entire loan transaction was of Rs. 16.05 lacs between the parties as is proved by the bank document Ex.CW1/1 and for repayment of which three cheques were issued by the accused including the cheque of Rs. 12.25 lacs. There is no cross examination anywhere to this part of the statement of the complainant that his statement as above is not correct nor there is any challenge to the document Ex.CW1/1 that it is not reflecting the correct position of loan or the document is not a correct document. For the want of any cross examination of the statement of CW1 on the point of giving loan of Rs. 16.05 lacs and for the want of any challenge to the document Ex.CW1/1, both stands unrebutted and go against the accused on record. On consideration of the pleadings and evidence coming on record, it cannot be said that there is any variance in complaint and evidence in support thereof or evidence led by the complainant has improved the case set up in the complaint in any manner. The testimony of CW-1 Sunil Kumar Mehra has only clarified the position which also stands confirmed by the bank document Ex.CW1/1 that loan amount was of Rs. 16.05 lacs and in discharge thereof the accused had issued three cheques including the cheque in question Ex.CW1/B for the amount of Rs. 12.25 lacs. The contention of the counsel of the accused to dismiss the complaint on this ground is merit less and has to be rejected. So far, the document Ex. CW1/D5 is contended by the defence showing the limited liability to the extent of Rs. 7.5 lacs, nowhere this document Ex.CW1/D5 suggests that the entire loan amount has been admitted by the complainant only to the extent of Rs. 7.5 lacs as claimed. This is a deliberate misreading of the document on the part of the accused and has to be rejected being factually incorrect.
922. So far as submission of the counsel of the accused regarding the variance in case pleaded and evidence adduced is concerned, it may be noted that complainant Sunil Kumar in his statement made on 17.1.2001 has deposed that he has given a loan of Rs. 16.05 lacs by the different cheques. According to him Ex.CW1/B (impugned cheque) was issued by the accused in favour of his company. Further in the statement recorded on 6.11.2001, it has been stated by the complainant that he had given the loan of Rs. 12.25 lacs by way of different cheques and according to him apart from this loan, he had also given other loans and admitted as correct that one single cheque of Rs. 12.25 lacs was not given but number of cheques were given for the said amount. He stated that against total loan amount of Rs. 16.05 lacs, the complainant was issued three different cheques amounting to Rs. 12.25 lacs (impugned herein), 2.5 lacs and 1.3 lacs. According to him details of the cheques of the amount given by the complainant to the accused has been given by him in document Ex.CW1/1. This document Ex.CW1/1 has been proved by PW3 Dinesh Sharma summoned from the Khatri Co-operative Bank, i.e Bank of the Complainant.
23. On consideration of the evidence coming on record, the only defence set up by the accused through cross examination of the complainant is that:
A) Impugned cheque was given in blank with other cheques as advance; and B) The complainant had received the entire payment of loan from the accused before the presentation of the impugned cheque Ex.CW1/B. Both these suggestion have been denied by the complainant.
24. In his statement U/S 313 Cr.P.C the accused has stated that:
10He had issued four cheques to the complainant out of which three cheques were filed by the complainant for Rs. 30,000/- to Rs. 37,000/-. These were encashed and fourth cheque was filled by the complainant of heavy amount without telling him and cheque got dishonored. He has paid complete 8-9 lacs to square everything
25. It may be noted that these two statement of facts were never a part of cross examination of the complainant by the accused and both are question of facts well within the knowledge of the accused at the time of cross examination of the complainant, having a direct bearing on the case in dispute. They should have been put up by the complainant to elicit the truth. As such, this amounts to an improvement in defence. The accused has also led his defence evidence vide an affidavit. He has been examined as DW1 on 15.7.2003 and again on 15.10.2005. In his affidavit, he has denied that complainant has advanced any loan to Narain Jewellers. He deposed that parties had several business/money transactions. He deposed that the blank cheques were given by him on the request of the complainant to utilize the same as and when required. He deposed that apart from the other cheques, the complainant was in possession of several other cheques No. 352502 - 05, all drawn on the bank of Bikaner and Jaipur, Barakhamba Road, New Delhi. He states that these cheques were issued as parties had dealt with each other for number of years and also number of blank cheques were given because of the mutual trust and faith between the parties. He further states that in June/July 1997 complainant had approached for settlement of accounts and made a request for payment of Rs. 7 to 7.5 lacs. He further states that accordingly accused No. 1 M/s Narain Jewellers started making payments to the complainant and between July, 1997 to September 1997 accused No. 1 made payment of Rs. 7 lacs to the complainant by way of Pay Order. He 11 states that accused No. 1 Narain Jewellers made further payment to the complainant after September, 1997. He states that even after receipt of the summons of the case, accused No. 2 appeared first time in August, 1999 and complainant had agreed for settlement and offered to withdraw all his complaints and demanded a sum of Rs. 50,000/-. It is further stated that in order to settle the matter, the accused paid the said sum on 9.9.1999 where after the complaints pending in the court of Shri Ghanshyam Gupta, Ld. M.M. were withdrawn in December, 1999, January 2000 and February 2000. He stated that he had made substantial payments to the complainant and called the complainant to hand him over all the cheques in his possession.
26. The accused further deposes in his affidavit that complainant received Rs. 9 lacs by way of cheque/pay order/cash and complainant on number of occasions had taken jewellary from him on account of which no payment was made and such purchases were also adjusted.
27. A close appraisal of the entire defence set up by the accused would show that no such questions are put by the accused to the complainant's witness in cross examination. These statements made in the affidavit first time during trial were directly relating to the complainant and the complainant was the best witness to answer all these questions and not putting up these questions to the complainant's witness, would be sufficient to discard the evidence holding that the cheque is not worth consideration.
28. Moreover, no supportive evidence has been filed to prove the assertions made by accused in his affidavit. He admits there was no connection between the complainant's business and his business and in view of this the defence raised that the parties were having business money transactions has to be rejected being unbelievable.
12The defence has not produced any evidence on record that all the payments as alleged by the accused were in discharge of the liability arising out of the cheque in question . In cross, accused admits that he was maintaining the accounts of his business and is also an Income Tax Assessee. No such accounts or Income Tax record has been produced to support the statement of the payments having made by him to the complainant, in discharge of the liability against the impugned cheque. In Kundan Lal Rallaram Vs. Custodian Evacuee Property Bombay AIR 1961 SC 1316, it was held that if a relevant evidence is withheld the court may draw a presumption to the effect that if the same was produced it might have been unfavourable to the Plaintiff. In the present case also the non production of the material evidence by way of accounts of the business or of the Income Tax record would lead to draw an adverse inference against the accused more particularly when the complainant has denied that the payments made to him by the accused were in discharge of the liability under the impugned cheque. Since the plea has been raised by the accused, it was for him to prove the same under the law by leading the reliable evidence, which accused has not led at all in this case.
29. The defence of the accused is inconsistent about the total amount paid by him to the complainant. No suggestion whatsoever is put by defence during cross examination of complainant's witnesses as to how much amount was paid by accused in all. In his statement U/S 313 Cr.P.C, accused states that he had paid total Rs. 8-9 lacs to square everything whereas in his own affidavit, he states that complainant received Rs. 9 lacs by way of cheque/Pay order/cash. The accounts which have never been produced, could have given the best answer to the amount of the payments having made by the accused and also to prove the factum, as to for what purpose this amount was paid by him, when the consistent stand of complainant is that the amount is paid to him towards the payment 13 of interest on the loan amount given by him. The accused while himself giving a suggestion to the complainant in his cross examination that entire amount of the loan has been paid before the impugned cheque is presented, has denied in his statement that he was ever having any loan transaction with complainant and thus shows the defence of the accused as highly inconsistent and improbable, thus unreliable.
30. The defence evidence led through affidavit and cross examination of accused shows a marked improvement in the defence set up by him as it was nowhere a part of cross of either CW Sunil Kumar Mehra or even of his own statement U/S 313 Cr.P.C. No evidence has been produced by the accused when it was informed to him that the cheque has been destroyed by the complainant and no suggestion is also put to the complainant in cross examination.
31. The onus was on the accused to rebut the presumptions by leading a cogent and reliable evidence. The accused has failed to show that the payment was made in discharge of the liability for the amount under the impugned cheque. Accused has not produced the Statement of Accounts and Income Tax records without their being any justified reason for the same and thus has withheld the best evidence available with him. During cross examination, accused was also confronted with document Mark A i.e certificate dated 19.8.97, certifying that during the financial year 1996-97, he had paid a sum of Rs. 1,70,333/- to M/s Techno XL Associates as interest on loan and also admitted in the document that on that day, a sum of Rs. 14,75,000/- was the credit balance. Similarly, while admitting in cross that Mugal India was one of his business firms, accused denies the document Mark B i.e a letter dated 3.7.96 on the letter head of Mugal India certifying that during the financial year 1995- 96 a sum of Rs. 4,800/- was issued as interest to Shri Sunil Kumar 14 Mehra and confirmed that a sum of Rs. 20,000/- was credit balance as on 31.3.1996. Both documents Mark A and B have been denied by the accused saying that he cannot answer as to if Mark A was filed by him with Income Tax Return to take benefit. Similarly regarding document Mark B, accused states it does not bear his signatures though he dos not dispute that it was on the letter head of firm. Mark A and Mark B are the documents prepared on the letter head of Narain Jewellers and Mugal India, both being firms of accused and the denial of the same is hardly worth acceptance. Both these documents support the stand of complainant that accused was paying interest on loan amount. The production of the Income Tax record of the accused could have been relevant to the defence of the accused against the documents Mark A and B and non production of the same leads to an adverse inference against the accused even for the purpose of these two documents.
32. The appreciation of overall evidence coming on record would show that the defence put up by accused is not supported by any evidence and is inconsistent as at one place, accused himself has taken up the plea that all amount of loan has been repaid and at other place he states that no loan was ever taken by him. The defence of having paid such amount is without support of any documentary evidence.
33. It is difficult to believe the version of the accused for the reason that the best evidence available with him is withheld by him. Even otherwise, there is no supporting evidence put up by him that cheque in question was blank as claimed or that the cheques referred by him in his defence were having any connection or relevance to the cheque in question. Accused has also not given any definite reply as to why some cheques were issued and what were those transactions except saying that these were given in blank, which were misused by complainant. The explanation offered by 15 him that the cheques were given in advance for business transaction is not found believable. He also has not made any complaint against the complainant for the alleged misuse nor any representation is made even to the complainant in this regard, before taking up this defence, first time in his affidavit in evidence. I have also gone into the judgment in CR case No. 1898/1 in another connected case filed against accused U/S 138 NI Act before Ld. M.M., against Firm Mugal India, which is one of the business concerns of the accused. The said complaint is also filed by the complainant Sunil Kumar Prop. of Firm Techno XL Associates, wherein accused was found guilty and was punished and all his defences having found to be false and meritless.
34. Accused has also sought to take up a plea of his having not received the Legal Notice. PW2 Shri Purshottam Lal, Asstt. Suptd has produced the delivery Certificate Ex.PW2/1 issued on the basis of receipt dated 19.11.97 by Chief Post Master, GPO, New Delhi and there is no reason to disbelieve his statement. The notice was sent at the correct address of the accused and through registered cover and a presumption U/S 27 General Clauses Act has to be raised against the accused in C.C. Alavi Haji Vs. Palalpetty Mohd and Anr. 2007 (3) Crime 120 SC, it is held that Section 27 General Clauses Act gives rise to presumption that service of notice has been effected when it is sent to the correct address by Registered Post. The submission that notice U/S 251 Cr.P.C was served upon the accused was defective, has to be rejected as it is not shown how it has caused any prejudice to the accused on that count.
35. In totality of the facts & circumstances of the case, it was the liability of the accused to bring positive evidence, in the wake of disputing the extent of liability by him. The liability was more intense particularly when the accused allegedly had made part payments. It was the sole burden and duty of the accused to prove 16 the extent of liability, if any, when he was defending a presumption, which was supporting the dishonoured cheque. The forbearance of the accused in bringing before the court, best evidence with supportive documents, renders Complainant's case proved. The accused has failed to discharge the burden. Having considered the entire evidence, it is proved that accused had issued the cheque against liability and against legally enforceable debt and the said cheque was dishonoured due to insufficiency of funds.
36. There is overwhelming evidence on record as referred above to infer the liability of accused. Defence has failed to canvass any good ground for giving the cheque in question to the complainant and thus cannot take shield under the armour of plea that complainant had misused the cheque, given in blank form.
37. Having gone through the provisions of Section138 of the Act, it is clear that evidence U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues a cheque towards the discharge of a debt or liability as a whole or in part and the cheque is dishonoured by bank on presentation.
38. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/ S 138 N.I. Act. Let he be heard on the point of sentence on 24.2.2010 at 3.00 PM.
(Announced in Open Court (MS. RAVINDER BEDI)
on 16.2.2010 ) JSCC cum ASCJ cum Guardian Judge
(South)
17
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ /
JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE
COURTS, NEW DELHI
Mr. Sunil Kumar Vs. M/S Narain Jewellers
CC NO. 1099/1/09
U/s 138 N.I. Act
17.3.2010
3.00 PM
ORDER ON SENTENCE
Present: Counsel for complainant alongwith AR of complainant.
Convict present in person with counsel Mr. Anil Airi.
1. I have heard the convict and his counsel on the Point of Sentence.
2. It is argued by ld counsel that convict is an old aged person, suffering from multiple ailments of hypertension, visual impairment as a result of a brain stroke happened in the year 2002. Ld. counsel has placed on record Clinic Summary of the convict. Ld. counsel submits that the convict is constantly attending the investigations and is under continual care of Dr. Vineet Suri (neurosciences). It is argued that the convict has a family to support. It is argued that convict has no criminal antecedents and the learned counsel for the convict has prayed that a lenient view be taken in the present matter as the convict is religiously appearing before the Court since the year 1999. It is submitted that certain amounts were paid at different occasions in the year 1999 to the complainant company.
3. Counsel for the complainant to the contrary argues that since the convict had issued the cheque in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. It is argued that the trial has expanded for over more than 11 years and complainant had to suffer greatly. Referring to the judgments of superior Courts regarding provisions U/S 431 Cr.P.C and Section 357(3) of Cr.P.C,, Counsel has prayed for compensation considering the conduct of the Convict. Therefore, Ld. 18 counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
5. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for one year alongwith fine of Rs. 13,00,000/- as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. Out of this amount, Rs. 12,75,000/- shall be payable to the complainant as compensation and Rs. 5,000/- to the State within a month from today. In default of payment of fine payable to state, convict shall further undergo imprisonment for three months.
6. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
7. At this stage, counsel for convict prays for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
Surety / his son is present.
Since convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs 20,000/- with one surety in the like amount.
Bail bond furnished and accepted till 16.4.2010 at 2.00 PM.. Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI)
on 17.3.2010) JSCC cum ASCJ cum Guardian Judge
(South) 17.3.2010