12 In The Judgment Reported As Sanjay ... vs . Kanishka on 23 July, 2013

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Delhi District Court

12 In The Judgment Reported As Sanjay ... vs . Kanishka on 23 July, 2013

In the Court of Sh. Gorakh Nath Pandey: Senior Civil Judgecum
  Rent Controller of New Delhi District at Patiala House Courts, 
                          New Delhi   

C. C Nos. 3520/1/09, 3525/1/09,  3526/1/09,  3527/1/09 and  3528/1/09 


M/s Newtech Computer Services Pvt. Ltd.
through its Director Sh. Ashwani Jaitly
609, Chiranjiv Towers,
43, Nehru Place, New Delhi                             ..................          Complainant
                                                   VERSUS


1       M/s Param International
        F90/12, Okhla PhaseI
        New Delhi110020


2       Sh Vipin Kumar Jain
        Chairman,
        M/s Param International
        F90/12, Okhla PhaseI
        New Delhi110020


3       Sh. Sandeep Jain
        Chairman,
        M/s Param International
        F90/12, Okhla PhaseI
        New Delhi110020
        (Declared PO vide order dated 17.11.2011)

C. C. No. 3520/1/09, 3525/1/09,  3526/1/09,  3527/1/09 and  3528/1/09                             
                                                                                Page no. 1 of 11
 2nd Address:    R18/19, IInd Floor,
                     Pull Prahladpur, New Delhi               .................            Accused
 
Date of Institution :     02.04.2005
Date of Arguments:     23.07.2013
Date of Judgment  :     23.07.2013                      


       COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE 
                  INSTRUMENTS ACT, 1881.


 JUDGMENT  :

1 Vide this common judgment I shall dispose off five above mentioned complaint cases under section 138 of the Negotiable Instruments Act, 1881 ( hereinafter called the Act) filed by the complainant against the accused, as the parties are the same and the evidence is common.

Facts as per the complainant's version are that the complainant is a private limited company duly incorporated as per the provisions of Indian Companies Act, 1956 and Sh Ashwani Jaitly, is authorised to sign, file, verify and institute the present complaint case. The accused has been purchasing computer parts and software installation from the complainant on regular basis and have been making part payments on account in regard to the total outstanding from time to time. The accused issued various cheques mentioned below in favour of the complainant C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 2 of 11 company respect of the said liability: Caheque No. Date Amount Drawn on 74686 5.9.04 45,753/ IDBI Bank, Nehru Place,New Delhi 74681 25.9.04 1,00,000/ do 74683 5.8.04 45,753/ do 983236 30.10.04 50,000/ do 983237 7.11.04 50,000/ do 983238 14.11.04 1,00,000/ do 74680 10.10.04 1,00,000/ do 74691 28.9.04 66,024/ do 74682 7.9.04 1,00,000/ do 74690 16.9.04 45,753/ do 74687 20.9.04 45,753/ do 74685 30.8.04 45,753/ do 74684 25.8.04 45,753/ do 74688 30.9.04 45,753/ do 74689 4.9.04 45,753/ do 2 It is stated in the complaint that the complainant deposited all the aforesaid cheques for encashment with its banker but the same received unpaid vide memoranda dated 27.1.2005 with the remarks C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 3 of 11 "insufficient funds". It is further stated in the complaint that thereafter the complainant sent a legal notice dated 5.2.2005 to the accused through its counsel vide registered AD post and UPC on 10.2.2005 but in spite of the service of the legal notice the accused neither tendered nor paid the cheques amount. It is further stated in the complaint that the accused be summoned, tried and punished for having committed offence punishable under section 138 of N.I. Act in respect of the cheque in question. 3 The above mentioned five complaints were made on 2.4.2005. After examination of the complainant under section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by way of an affidavit and having considered the documents the accused was summoned under section 138 of the Act in respect of cheques in question in all the abovementioned complaint cases.

4 In pursuance of the process issued by the court accused failed to appear before the court and vide order dated 17.11.2013 accused no. 2 Vipin Kumar Jain and accused No. 3 Sandeep Jain were declared proclaimed offender. After examining CW Mr. Ashwani Jaitly u/s 299 CrPC the file was consigned to record room vide order dated 26.04.2012 and it was directed that as and when accused surrender before the court or they are apprehended and brought before the court, the file be called from the record room for proceeding against the accused as per law. 5 Upon the application dated 28.1.2013 filed on behalf of C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 4 of 11 accused Vipin Kumar Jain for setting aside the order dated 26.4.2012, production warrant was issued to Superintendent Jail and accused was produced before this court on 7.3.2013 in pursuance of the production warrant issued by this court. The accused was admitted to bail. Subsequently, on 2.05.2013 a notice of accusation under section 251 of Cr.P.C. was explained to the accused for offence punishable under section 138 of the Act in respect of cheques in question. The accused did not plead guilty.

6 In view of of the judgment dated 28.7.2010 passed by the Hon'ble Delhi High Court in Crl. M.C. No. 1996/10 entitled Rajesh Aggarwal v. State & Another, the accused is called upon to disclose his defence and in pursuance of the direction of the court the accused has disclosed his defence which is as below: "I was not aware regarding any dealing though I have signed the cheques. I have issued the cheques as I was the partner in the company but I am not liable to make any payment. There is no any liability against the accused."

7 No application under section 145 (2) of the Act 26 of 1881 was made on behalf of the accused. In these circumstances case was put up for defence evidence. The accused neither examined any witness nor filed list of witnesses. No steps taken for summoning the witnesses also. As no C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 5 of 11 explanation was furnished by the accused in this regard the DE was closed by the order of the court on 5.6.2013.

8 I have heard the final arguments on behalf of the complainant. This court has no privilege to hear the arguments on behalf of the accused as the accused failed to address the final arguments despite repeated and ample opportunities and the court was constrained to pass the judgment on the basis of materials on record.

9 Ld. Counsel for the complainant has argued that the complainant has proved the case beyond reasonable doubts in view of un rebutted and uncontroverted testimony of the witness and the relevant documents have also been proved by the complainant as per law. As the accused failed to pay the amount despite service of the legal notice it is prayed that the accused be convicted for the offence alleged against him. 10 Section 138 of the Act which pertains to dishonour of cheque for insufficiency, etc., of funds in the account, at the relevant time, read as follows:

138. Dishonour of cheque for insufficiency, etc., of funds in the account ― Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 6 of 11 Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation For the purposes of this section, "debt or other liability"

means a legally enforceable debt or other liability.

11 From a reading of section 138 of the Act it can be discerned that to render a drawer of a cheque liable under the said section it is essential that the cheque must be drawn to discharge a legally enforceable debt or liability. If such cheque is drawn not to discharge any legally enforceable debt or liability, the drawer of such cheque cannot be held liable for commission of offence punishable under section 138 of the Act. From a reading of proviso to section 138 of the Act it can also be discerned that after dishonour of the cheque unless and until a notice as required by clause (b) of the said proviso is served upon the drawer of the cheque whereby he is called upon to make payment against the cheque, such drawer cannot be held liable for the commission of offence punishable C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 7 of 11 under section 138 of the Act.

12 In the judgment reported as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) His Lordship after referring the decision in the case Krishna Janardhan Bhat v. Duttatraya G. Hagde, 2008 (1) Apex Courts Judgement 412 (SC) referred the ingredients of the offence under section 138. Paragraph 29 reads thus:

"29. Section 138 of the Act has three ingredients viz.:

(i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debut; and

(iii) that the cheque so issued had been returned due to insufficiency of funds."

13 From a reading of section 138 of the Act it can be discerned that to render a drawer of a cheque liable under the said section it is essential that the cheque must be drawn to discharge a legally enforceable debt or liability. If such cheque is drawn not to discharge any legally enforceable debt or liability, the drawer of such cheque cannot be held liable for commission of offence punishable under section 138 of the Act. 14 Further the Hon'ble Court in Sanjay Mishra's case (supra) in paragraphs 30 and 31 dealt with the presumption under section 139 of the said Act. Paragraphs 30 and 31 read thus:

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 8 of 11 "30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.

31. The courts below, as noticed hereinbefore, proceeded on the basis that section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct." (Emphasis added).

15 The complainant witness deposed that accused had been purchasing the computer parts and software from the complainant and made payment on account. The witness further deposed that the cheques in question were issued by the accused for discharge of liability. It is proved that the cheque Ex. PW1/2 to Ex. PW 1/4 returned dishonoured due to insufficient funds vide return memo Ex. CW1/5, Ex. CW1/5A and Ex. CW1/5B respectively. It is further deposed that legal notice dated 05.02.2005 was served upon the accused through registered post as well as UPC but the accused failed to make the payment. The witness has further proved the postal receipts in this respect. The witness was not cross C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 9 of 11 examined and therefore, the testimony of the witness remained un impeached and uncontroverted. This court does not find any ground to doubt the testimony of the complainant witness. Further the complainant has proved all the relevant documents in view of the provisions of the Evidence Act.

16 The accused did not deny the allegations of the complaint. The accused at the time of notice admitted that he had signed and issued the cheques as he was partner in the company. Nothing was done by the accused at all to deny the liability as alleged and rebut the presumptions against him in view of the 139 of the NI Act. Simplicitor denial by the accused of the liability is not sufficient to rebut the claim / presumption against him.

17 As mentioned, under section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and this presumption can be rebutted by the person who gives the cheque. The presumption is for casting the burden of proof as to who should adduce evidence in a case. It is open to the accused to adduce evidence to rebut the said presumption but it is observed that the accused has failed to do so.

18 The testimony of the complainant remained unrebutted and uncontroverted. Infact the accused had not denied also the factum of liability, issuance of the cheques, receipt of legal notice etc. therefore, there C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 10 of 11 is no reason to disbelieve the testimony of the CW. The complainant has proved the liability of the accused, issuance of the cheques, its dishonoured and nonpayment despite service of the notice. The accused, therefore, liable to be convicted for the offence alleged against him u/s 138 of the Act. 19 In view of the above discussed, accused no. 2 Vipin Kumar Jain is found guilty and convicted for having committed offence punishable under section 138 of N. I. Act in all the five complaint cases bearing CC Nos. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09. 20 Let the convict be heard on the question of sentence on 01.08.2013.

Announced in the open court on this 23rd day of July, 2013 ( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 11 of 11 In the Court of Sh. Gorakh Nath Pandey, Senior Civil Judge, New Delhi District at Patiala House Courts, New Delhi C. C No. 3526/1/13 M/s Newtech Computer Services Pvt. Ltd. through its Director Sh. Ashwani Jaitly 609, Chiranjiv Towers, 43, Nehru Place, New Delhi .................. Complainant VERSUS 1 M/s Param International F90/12, Okhla PhaseI New Delhi110020 2 Sh Vipin Kumar Jain Chairman, M/s Param International F90/12, Okhla PhaseI New Delhi110020 3 Sh. Sandeep Jain Chairman, M/s Param International F90/12, Okhla PhaseI C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 12 of 11 New Delhi110020 (Declared PO vide order dated 17.11.2011) 2 Address: R18/19, IInd Floor, nd Pull Prahladpur, New Delhi ................. Accused ORDER ON SENTENCE:

Present: AR of the complainant with counsel.

Convict on bail with Ms. Dipti Rai, Advocate.

The convict namely, Mr. Vipin Kumar Jain was put on trial for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4. By judgment dated 23.07.2013 the accused was found guilty of having committed the offence charged against him and was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and the matter for posted for arguments on the quantum of sentence.

I have heard the convict and his counsel. I have also heard counsel for the complainant and have gone through the material on record carefully. It is submitted by the convict that he is not a previous convict. It is also submitted by the convict he is a poor person and he is ready and willing to make the payment in installments and a lenient view be taken against him on the point of sentence.

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 13 of 11 It is submitted by counsel for the complainant that the convict intentionally did not appear before the court and his appearance was secured only after the coercive steps were taken against him and he was declared as proclaimed offender. It is further prayed that as the convict is liable and had failed to pay the due and outstanding amount, he be severely punished and the complainant be adequately compensated.

I have given my thoughtful consideration to the submissions made on behalf of the parties.

In the present case, as per the material on record, to discharge his liability towards the complainant the convict issued cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid. It has also been proved that after return of the above said two cheques as unpaid a demand notice Ex. CW1/6 was sent to the convict and he had failed to make payment of the cheques amount to the complainant.

In view of the law laid down by the Hon'ble Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.

The offence committed by the convict is not an act of passion and the same has been done with due deliberation. However, keeping in C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 14 of 11 view all the facts and circumstances and the condition of the convict I take lenient approach in so far as passing of sentence of imprisonment against him is concerned. The Hon'ble Supreme Court in judgment dated 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijyan v. Baby and another having discussed the provisions of Act 26 of 1881 and Cr.P.C. held as follows:

As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

In view of the judgment passed by the Hon'ble Supreme Court in R. Vijyan's case (supra) sentence of fine is also required to be passed against the convict as there are no special circumstances for dispensing with passing of such sentence.

Keeping in view all the facts and circumstances convict Mr. Vipin Kumar Jain is sentenced to undergo rigorous imprisonment for one year and six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and further sentenced to pay fine in a sum of Rs. 3,32,000/ C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 15 of 11 ( i.e. approx. double the amount of the cheques). In the event of his making default in payment of fine the convict shall further undergo rigorous imprisonment for thirty days.

It has been proved from the record that for a period of nine years, the convict deprived the complainant of the use of the amount of cheques in question owed by him to the complainant against cheque Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and interest thereon. Therefore, out of the fine of Rs.3,32,000/ imposed on the convict a sum of Rs. 2,50,000/ shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.

Convict Mr. Vipin Kumar Jain is also directed to pay cost of Rs.5,000/ to the complainant under section 359 of the Code of Criminal Procedure, 1973. In the event of his failure to make payment of cost convict Mr. Vipin Kumar Jain shall undergo simple imprisonment for 15 days. It is further made clear that the sentence awarded to the convict shall run concurrently and he is also granted benefit u/s 428 Cr.P.C.

( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi Announced in the open court on this 1st day of August, 2013 C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 16 of 11 In the Court of Sh. Gorakh Nath Pandey, Senior Civil Judge, New Delhi District at Patiala House Courts, New Delhi C. C No. 3520/1/13 M/s Newtech Computer Services Pvt. Ltd. through its Director Sh. Ashwani Jaitly 609, Chiranjiv Towers, 43, Nehru Place, New Delhi .................. Complainant VERSUS 1 M/s Param International F90/12, Okhla PhaseI New Delhi110020 2 Sh Vipin Kumar Jain Chairman, M/s Param International F90/12, Okhla PhaseI New Delhi110020 3 Sh. Sandeep Jain Chairman, M/s Param International F90/12, Okhla PhaseI C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 17 of 11 New Delhi110020 (Declared PO vide order dated 17.11.2011) 2 Address: R18/19, IInd Floor, nd Pull Prahladpur, New Delhi ................. Accused ORDER ON SENTENCE:

Present: AR of the complainant with counsel.

Convict on bail with Ms. Dipti Rai, Advocate.

The convict namely, Mr. Vipin Kumar Jain was put on trial for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4. By judgment dated 23.07.2013 the accused was found guilty of having committed the offence charged against him and was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and the matter for posted for arguments on the quantum of sentence.

I have heard the convict and his counsel. I have also heard counsel for the complainant and have gone through the material on record carefully. It is submitted by the convict that he is not a previous convict. It is also submitted by the convict he is a poor person and he is ready and willing to make the payment in installments and a lenient view be taken against him on the point of sentence.

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 18 of 11 It is submitted by counsel for the complainant that the convict intentionally did not appear before the court and his appearance was secured only after the coercive steps were taken against him and he was declared as proclaimed offender. It is further prayed that as the convict is liable and had failed to pay the due and outstanding amount, he be severely punished and the complainant be adequately compensated.

I have given my thoughtful consideration to the submissions made on behalf of the parties.

In the present case, as per the material on record, to discharge his liability towards the complainant the convict issued cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid. It has also been proved that after return of the above said two cheques as unpaid a demand notice Ex. CW1/6 was sent to the convict and he had failed to make payment of the cheques amount to the complainant.

In view of the law laid down by the Hon'ble Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.

The offence committed by the convict is not an act of passion and the same has been done with due deliberation. However, keeping in C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 19 of 11 view all the facts and circumstances and the condition of the convict I take lenient approach in so far as passing of sentence of imprisonment against him is concerned. The Hon'ble Supreme Court in judgment dated 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijyan v. Baby and another having discussed the provisions of Act 26 of 1881 and Cr.P.C. held as follows:

As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

Keeping in view all the facts and circumstances convict Mr. Vipin Kumar Jain is sentenced to undergo rigorous imprisonment for one year and six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and further sentenced to pay fine in a sum of Rs. 3,80,000/ C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 20 of 11 ( i.e. approx. double the amount of the cheques). In the event of his making default in payment of fine the convict shall further undergo rigorous imprisonment for thirty days.

It has been proved from the record that for a period of nine years, the convict deprived the complainant of the use of the amount of cheques in question owed by him to the complainant against cheque Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and interest thereon. Therefore, out of the fine of Rs.3,80,000/ imposed on the convict a sum of Rs. 3,00,000/ shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.

( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi Announced in the open court on this 1st day of August, 2013 C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 21 of 11 In the Court of Sh. Gorakh Nath Pandey, Senior Civil Judge, New Delhi District at Patiala House Courts, New Delhi C. C No. 3525/1/13 M/s Newtech Computer Services Pvt. Ltd. through its Director Sh. Ashwani Jaitly 609, Chiranjiv Towers, 43, Nehru Place, New Delhi .................. Complainant VERSUS 1 M/s Param International F90/12, Okhla PhaseI New Delhi110020 2 Sh Vipin Kumar Jain Chairman, M/s Param International F90/12, Okhla PhaseI New Delhi110020 3 Sh. Sandeep Jain Chairman, M/s Param International F90/12, Okhla PhaseI C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 22 of 11 New Delhi110020 (Declared PO vide order dated 17.11.2011) 2 Address: R18/19, IInd Floor, nd Pull Prahladpur, New Delhi ................. Accused ORDER ON SENTENCE:

Present: AR of the complainant with counsel.

Convict on bail with Ms. Dipti Rai, Advocate.

The convict namely, Mr. Vipin Kumar Jain was put on trial for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4. By judgment dated 23.07.2013 the accused was found guilty of having committed the offence charged against him and was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and the matter for posted for arguments on the quantum of sentence.

I have heard the convict and his counsel. I have also heard counsel for the complainant and have gone through the material on record carefully. It is submitted by the convict that he is not a previous convict. It is also submitted by the convict he is a poor person and he is ready and willing to make the payment in installments and a lenient view be taken against him on the point of sentence.

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 23 of 11 It is submitted by counsel for the complainant that the convict intentionally did not appear before the court and his appearance was secured only after the coercive steps were taken against him and he was declared as proclaimed offender. It is further prayed that as the convict is liable and had failed to pay the due and outstanding amount, he be severely punished and the complainant be adequately compensated.

I have given my thoughtful consideration to the submissions made on behalf of the parties.

In the present case, as per the material on record, to discharge his liability towards the complainant the convict issued cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid. It has also been proved that after return of the above said two cheques as unpaid a demand notice Ex. CW1/6 was sent to the convict and he had failed to make payment of the cheques amount to the complainant.

In view of the law laid down by the Hon'ble Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.

The offence committed by the convict is not an act of passion and the same has been done with due deliberation. However, keeping in C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 24 of 11 view all the facts and circumstances and the condition of the convict I take lenient approach in so far as passing of sentence of imprisonment against him is concerned. The Hon'ble Supreme Court in judgment dated 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijyan v. Baby and another having discussed the provisions of Act 26 of 1881 and Cr.P.C. held as follows:

As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

Keeping in view all the facts and circumstances convict Mr. Vipin Kumar Jain is sentenced to undergo rigorous imprisonment for one year and six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and further sentenced to pay fine in a sum of Rs. 4,00,000/ C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 25 of 11 ( i.e. approx. double the amount of the cheques). In the event of his making default in payment of fine the convict shall further undergo rigorous imprisonment for thirty days.

It has been proved from the record that for a period of nine years, the convict deprived the complainant of the use of the amount of cheques in question owed by him to the complainant against cheque Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and interest thereon. Therefore, out of the fine of Rs.4,00,000/ imposed on the convict a sum of Rs. 3,00,000/ shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.

( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi Announced in the open court on this 1st day of August, 2013 C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 26 of 11 In the Court of Sh. Gorakh Nath Pandey, Senior Civil Judge, New Delhi District at Patiala House Courts, New Delhi C. C No. 3527/1/13 M/s Newtech Computer Services Pvt. Ltd. through its Director Sh. Ashwani Jaitly 609, Chiranjiv Towers, 43, Nehru Place, New Delhi .................. Complainant VERSUS 1 M/s Param International F90/12, Okhla PhaseI New Delhi110020 2 Sh Vipin Kumar Jain Chairman, M/s Param International F90/12, Okhla PhaseI New Delhi110020 3 Sh. Sandeep Jain Chairman, M/s Param International F90/12, Okhla PhaseI C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 27 of 11 New Delhi110020 (Declared PO vide order dated 17.11.2011) 2 Address: R18/19, IInd Floor, nd Pull Prahladpur, New Delhi ................. Accused ORDER ON SENTENCE:

Present: AR of the complainant with counsel.

Convict on bail with Ms. Dipti Rai, Advocate.

The convict namely, Mr. Vipin Kumar Jain was put on trial for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4. By judgment dated 23.07.2013 the accused was found guilty of having committed the offence charged against him and was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and the matter for posted for arguments on the quantum of sentence.

I have heard the convict and his counsel. I have also heard counsel for the complainant and have gone through the material on record carefully. It is submitted by the convict that he is not a previous convict. It is also submitted by the convict he is a poor person and he is ready and willing to make the payment in installments and a lenient view be taken against him on the point of sentence.

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 28 of 11 It is submitted by counsel for the complainant that the convict intentionally did not appear before the court and his appearance was secured only after the coercive steps were taken against him and he was declared as proclaimed offender. It is further prayed that as the convict is liable and had failed to pay the due and outstanding amount, he be severely punished and the complainant be adequately compensated.

I have given my thoughtful consideration to the submissions made on behalf of the parties.

In the present case, as per the material on record, to discharge his liability towards the complainant the convict issued cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid. It has also been proved that after return of the above said two cheques as unpaid a demand notice Ex. CW1/6 was sent to the convict and he had failed to make payment of the cheques amount to the complainant.

In view of the law laid down by the Hon'ble Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.

The offence committed by the convict is not an act of passion and the same has been done with due deliberation. However, keeping in C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 29 of 11 view all the facts and circumstances and the condition of the convict I take lenient approach in so far as passing of sentence of imprisonment against him is concerned. The Hon'ble Supreme Court in judgment dated 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijyan v. Baby and another having discussed the provisions of Act 26 of 1881 and Cr.P.C. held as follows:

As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

Keeping in view all the facts and circumstances convict Mr. Vipin Kumar Jain is sentenced to undergo rigorous imprisonment for one year and six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and further sentenced to pay fine in a sum of Rs. 2,70,000/ C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 30 of 11 ( i.e. approx. double the amount of the cheques). In the event of his making default in payment of fine the convict shall further undergo rigorous imprisonment for thirty days.

It has been proved from the record that for a period of nine years, the convict deprived the complainant of the use of the amount of cheques in question owed by him to the complainant against cheque Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and interest thereon. Therefore, out of the fine of Rs.2,70,000/ imposed on the convict a sum of Rs. 2,00,000/ shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.

( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi Announced in the open court on this 1st day of August, 2013 C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 31 of 11 In the Court of Sh. Gorakh Nath Pandey, Senior Civil Judge, New Delhi District at Patiala House Courts, New Delhi C. C No. 3528/1/13 M/s Newtech Computer Services Pvt. Ltd. through its Director Sh. Ashwani Jaitly 609, Chiranjiv Towers, 43, Nehru Place, New Delhi .................. Complainant VERSUS 1 M/s Param International F90/12, Okhla PhaseI New Delhi110020 2 Sh Vipin Kumar Jain Chairman, M/s Param International F90/12, Okhla PhaseI New Delhi110020 3 Sh. Sandeep Jain Chairman, M/s Param International F90/12, Okhla PhaseI C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 32 of 11 New Delhi110020 (Declared PO vide order dated 17.11.2011) 2 Address: R18/19, IInd Floor, nd Pull Prahladpur, New Delhi ................. Accused ORDER ON SENTENCE:

Present: AR of the complainant with counsel.

Convict on bail with Ms. Dipti Rai, Advocate.

The convict namely, Mr. Vipin Kumar Jain was put on trial for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4. By judgment dated 23.07.2013 the accused was found guilty of having committed the offence charged against him and was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and the matter for posted for arguments on the quantum of sentence.

I have heard the convict and his counsel. I have also heard counsel for the complainant and have gone through the material on record carefully. It is submitted by the convict that he is not a previous convict. It is also submitted by the convict he is a poor person and he is ready and willing to make the payment in installments and a lenient view be taken against him on the point of sentence.

C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 33 of 11 It is submitted by counsel for the complainant that the convict intentionally did not appear before the court and his appearance was secured only after the coercive steps were taken against him and he was declared as proclaimed offender. It is further prayed that as the convict is liable and had failed to pay the due and outstanding amount, he be severely punished and the complainant be adequately compensated.

I have given my thoughtful consideration to the submissions made on behalf of the parties.

In the present case, as per the material on record, to discharge his liability towards the complainant the convict issued cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid. It has also been proved that after return of the above said two cheques as unpaid a demand notice Ex. CW1/6 was sent to the convict and he had failed to make payment of the cheques amount to the complainant.

In view of the law laid down by the Hon'ble Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.

The offence committed by the convict is not an act of passion and the same has been done with due deliberation. However, keeping in C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 34 of 11 view all the facts and circumstances and the condition of the convict I take lenient approach in so far as passing of sentence of imprisonment against him is concerned. The Hon'ble Supreme Court in judgment dated 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijyan v. Baby and another having discussed the provisions of Act 26 of 1881 and Cr.P.C. held as follows:

As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

Keeping in view all the facts and circumstances convict Mr. Vipin Kumar Jain is sentenced to undergo rigorous imprisonment for one year and six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and further sentenced to pay fine in a sum of Rs. 2,70,000/ C. C. No. 3520/1/09, 3525/1/09, 3526/1/09, 3527/1/09 and 3528/1/09 Page no. 35 of 11 ( i.e. approx. double the amount of the cheques). In the event of his making default in payment of fine the convict shall further undergo rigorous imprisonment for thirty days.

It has been proved from the record that for a period of nine years, the convict deprived the complainant of the use of the amount of cheques in question owed by him to the complainant against cheque Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4 and interest thereon. Therefore, out of the fine of Rs.3,32,000/ imposed on the convict a sum of Rs. 2,00,000/ shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.

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