Delhi District Court
Naresh Shadija vs Sudhir Pahwa on 11 January, 2013
Naresh Shadija vs Sudhir Pahwa
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE, NORTH, DELHI
CC No.1759/11
Naresh Shadija
S/o Late Sh. S. D. Shadija
c/o N-Ecko, Drycleaners,
5251, Chandrawal Road,
Delhi-110007.
....................Complainant
vs.
Sudhir Pahwa
S/o Sh. Partap Pahwa,
R/o 5260, Kolhapur House,
Delhi-110007.
............................Accused
The offence complained of or proved : u/s 138 NI Act
The plea of the accused : not guilty
Final order : Convicted
Date of institution of complaint : 10.04.2007
Date on which reserved for judgment : 15.12.2012
Date of pronouncement of judgment : 11.01.2013
JUDGMENT:
1. Vide this judgment this court shall dispose of the present complaint u/s Page 1 of 27 Naresh Shadija vs Sudhir Pahwa 138 Negotiable Instruments Act 1881 filed by the complainant against the accused.
2. Brief facts stated in the complaint are that in the month of May 2004, the accused along with his wife had approached the complainant for a friendly loan. The loan was taken by the accused's wife in her name in the months of May and June. The loan extended to the accused was given partly on 25.07.2004 and then partly in January 2006. The total loan amount Rs.9,00,000/-, which was extended to the accused in good faith by the complainant. The accused's wife had taken a loan of Rs.1,20,000/- in her name and the remaining amount was extended to the accused on the above dates. Towards the part satisfaction of the refund of the said loan taken by the accused from the complainant, the accused had issued two cheques in favour of the complainant bearing no.208828 dt. 26.12.2006 for Rs.2,00,000/- drawn on Central Bank of India, Subzi Mandi, Delhi and cheque bearing no.945006 dt. 25.02.2007 for Rs.3,60,000/- drawn on Punjab National Bank. The cheque no. 945006 is ExCW1/1. The accused had handed over post dated cheques at the time of taking of the loan. Criminal complaint with respect to cheque bearing no. 208828 has already been filed. The complainant presented the cheque bearing no. 945006 for Rs. 2,00,000/- Ex. CW1/1 for encashment through his bankers, Canara Bank, Page 2 of 27 Naresh Shadija vs Sudhir Pahwa Kamla Nagar, on 26.02.2007, however the said cheque was returned unpaid by the bank of the accused along with memo dated 27.02.2007 with the endorsement that the cheque had been returned due to "Account closed" and the cheque return memo is ExCW1/2. The complainant served on the accused legal notice dt.01.03.2007 at both of his addresses calling upon the accused to pay to the complainant the amount of the cheque within the statutory period of 15 days, under registered cover with A/D, under UPC and by courier on 15.01.2007, the said notice was duly served upon the accused on or about 16.03.2007 and the legal notice is ExCW1/3 and the registered receipts are ExCW1/4 to ExCW1/5, the courier receipts are Ex. CW-1/6 and Ex. CW-1/7 and the UPC is Ex. PW-1/8, the original AD cards are Ex. CW-1/9 and Ex. CW-1/10 and the proof of delivery of courier are Ex. CW-1/11 and Ex. CW-1/12. On failure of the accused to make the payment within the stipulated period, the present complaint was filed.
3. After hearing the arguments on summoning, sufficient grounds were made out against the accused u/s 138 NI Act and process was issued against him. On his appearance, the accused was admitted to bail on dt.06.08.2007. Page 3 of 27
Naresh Shadija vs Sudhir Pahwa
4. Notice U/s 251 Cr.P.C was framed upon the accused vide order dt. 13.11.2007 to which the accused pleaded not guilty and claimed the trial.
5. Complainant examined one bank witness Sh. Ved Prakash from Canara Bank, Kamla Nagar, Delhi as CW1 in his evidence and he deposed that he has brought the summoned record which is the statement of account no.14961 in the name of Smt. Jyoti Shadija and Naresh Shadija wef 01.01.2004 to 31.03.2005. Copy of the same is ExCW1/1 and the same is photocopy of the certified copy as per the Indian Evidence Act.
6. Thereafter, complainant examined himself as CW2 and in his affidavit which is Ex.CW1/A reiterated the same facts and he was cross examined at length by the counsel for the accused. During his cross examination complainant stated that it is correct to suggest that accused is his neighbour. He used to do the business of dry cleaning by the name of N. Ekco Dry Cleaners in the year 2004. He did this business till the year 2009. It was a proprietorship firm. Apart from this he used to deal in share some times. He used to earn around Rs.20,000/- to Rs.30,000/- per year from the business of shares. Two workers used to work under him in his shop. Page 4 of 27
Naresh Shadija vs Sudhir Pahwa Workers used to be paid around Rs.5000/- each month. He used to earn on an average Rs.6 Lacs per annum by this firm. He used to maintain books of accounts regarding the said firm. His firm is registered in Income Tax but he does not know whether the firm was registered with Sales Tax Authority or not. He does not remember how much Income Tax he used to pay per year. He can produce the Income Tax Return of previous years. He advanced a loan of Rs.1,20,000/- to the wife of the accused in the month of May and June 2004. Again said, from May to July 2004 and further he advanced Rs.2,00,000/- to the accused between the month of July and Sep 2004, Rs.3,60,000/- in the month of Jan 2005 or 2006. He advanced some money near about Rs.2 Lacs in the month of Dec 2005 also but he does not exactly remember the date on which he advanced the loans to the accused and his wife. Apart from all these transactions, he did not advance any loan to the accused. It is wrong to suggest that he used to deal in Chit Funds Committees and further wrong to suggest that it had 20 members out of one Mr. Suraj was also there. He never executed any document at the time of giving the loan to the accused. He did not file any case against the accused for the balance amount because he had no proof regarding his claim from the accused. It is wrong to suggest that he has no dues from the accused. He had a collection of around Rs.4000/- to Rs.5000/- per day in Page 5 of 27 Naresh Shadija vs Sudhir Pahwa the winter season and around Rs.3000/- in the other seasons. Winter season runs from Oct to March. It is correct to suggest that there had been a quarrel with the accused. It is wrong to suggest that accused fought with him at his shop. Voluntarily stated, fight took place outside the shop near his street. The fight took place when the accused received the legal demand notice and called him to have a talk with him. It is correct to suggest that the accused lodged a complaint against him in PS Subzi Mandi and he appeared in the police station. It is wrong to suggest that he accepted his fault in the police station and he returned the cheque book of the accused to him. It is further wrong to suggest that he stole 2 to 3 cheques from the cheque book of the accused. It is correct to suggest that fight with the accused took place on 06.01.2007. Again said, he does not remember the exact date. It is wrong to suggest that while doing the business of chit fund committees, he used to obtain the blank cheque as security from the persons, who used to take the committee. It is further wrong to suggest that accused and his wife also gave him a blank unsigned cheques as security because they took away the money collected from the committee. It is wrong to suggest that after repayment of the committee amount by the accused, he demanded back from him those blank unsigned cheques and he did not return the same and he lodged the present false complaint. It is wrong to suggest Page 6 of 27 Naresh Shadija vs Sudhir Pahwa that there was a meeting with the accused organized by the traders association in order to settle the matter. It is wrong to suggest that accused never issued him the post dated cheques. It is wrong to suggest that he forcibly took the cheques from the drawer of the accused and had a fight with him regarding which police proceedings took place. It is wrong to suggest that he never advanced any loan to the accused and therefore, he does not remember the exact dates of advancement of loans. Voluntarily stated, he does not remember the dates but he can tell by checking them from his statement of accounts.
At this stage, witness has been confronted with the statement of accounts, to which he had replied that he advanced Rs.60,000/- each to the wife of the accused on 25.05.2004 and 01.06.2004 and he advanced Rs.2 Lacs to the accused on 25.07.2004. He advanced Rs.3,60,000/- more to the accused. He advanced Rs.1,10,000/- to the accused on 15.01.2005 and the balance Rs.2,50,000/- was lent from his household savings. It is correct to suggest that statement of accounts no where mention the names of the accused and his wife and that the said amounts have been advanced to them. It is wrong to suggest that he has manipulated the statement of accounts. It is wrong to suggest that he has filed a false case against the accused and he is deposing falsely. Page 7 of 27
Naresh Shadija vs Sudhir Pahwa
7. All the incriminating evidence had been put to the accused to which he replied in his statement u/s 313 Cr.P.C that whatever money was taken from the complainant it was on the basis of committee transaction / chit fund and he had given the cheques in question as blank unsigned cheques for security purpose. He further said that he has already made all the payments and the cheques were never returned to him on one pretext or the other and since the transactions were in good faith, he never bothered too much about the cheques. He received the legal demand notice. He submits that present case has been filed to extort money. He has also stated that he wants to lead defence evidence.
8. Accused examined himself and two more witnesses in his defence. DW-1 Yashpal has deposed that Naresh Shadija has the shop near his residence. He is in the business of dry cleaning. Side by side he was also into the business of chit fund / committee. He was also a member of committee. Naresh Shadija used to keep a cheque as a security. Accused was also a member of the committee. Accused has also given a cheque as a security. He has received back his cheque but accused did not take his cheque back. Thereafter on dt.06.01.2007 complainant came to the shop of the accused and got into a fight with the accused. Thereafter, Page 8 of 27 Naresh Shadija vs Sudhir Pahwa complainant also took the papers / account papers and cheques from the shop of the complainant. A police report was also filed by the accused against the complainant. He also went along with the accused to the police station. Police failed to settle the dispute between the accused and the complainant and further directed the accused to approach the court in respect of the same.
During his cross examination, he has deposed that there is no chit number or any other identification of which he claimed to be a member under Sh. Naresh Shadija. Voluntarily stated, everything was in kacha. There is also no registration. He does not know if Sh. Naresh Shadija was registered with Registrar of Chit Funds, therefore, he cannot produce any particulars of his registration. He can not give the particulars of the cheque which he claimed to have given to Sh. Naresh Shadija as security. It is wrong to suggest that neither has the complainant ever been in the business of chit fund/committee nor have either he or the accused been members of any such committee or chit funds. He has not mentioned any incident of 6th January, 2007. The incident was of 05th January, 2007 as far as he can remember. It is wrong to suggest that at the time of alleged incident, he was not present at the spot and he has deposed at the behest of the accused. He does not know if the police has not taken any action on the complaint of Sh. Sudhir Pahwa. Page 9 of 27
Naresh Shadija vs Sudhir Pahwa Voluntarily stated, the same must be within his knowledge. In his presence, the matter was compromised before the police where it was agreed that the complainant will return the cheques to the accused and the accused will clear the payment of the complainant which he can recall to be about Rs. 80-85 thousand. It is wrong to suggest that the complainant never went to the shop of the accused either on 05th or 6th January, 2007 or that the complainant has stolen the cheques from the shop of the accused. It is wrong to suggest that Sh. Sudhir Pahwa has never given any cheque as security to Sh. Naresh Shadija as there was no chit fund or committee dealing between them. He can not give the details of the cheques which he claim that Sh. Sudhir Pahwa has given as security or which he claim have been picked by the complainant from the shop of the accused. It is wrong to suggest that the cheques in dispute were given by Sh. Sudhir Pawha towards discharge of loan which was taken by him from the complainant. It is wrong to suggest that he is deposing falsely.
9. Accused examined another witness DW2 Suraj Sharma in his defence and he deposed that he knows the complainant and the accused being his neighbourer as he has a counter for the sale of the clothes on Kolahpur Road, Kamla Page 10 of 27 Naresh Shadija vs Sudhir Pahwa Nagar, Delhi. The complainant was running the shop of dry cleaning namely ECO Dry Cleaners. The complainant was also running a chit fund committee. Accused as well as his wife, one Yashpal and other persons were the member of the chit fund committee. The complainant used to take blank cheque in lieu of the security of the amount given to the member. One blank cheque as a security was also taken from him. The complainant has also taken the cheque from the accused and from his wife. The complainant after receiving the full payment from the member used to return his blank cheque. The complainant has also returned his blank cheque to him after receiving the committee amount from him. He knew that complainant has quarrelled with the accused as he was not returning his cheque and the cheque of his wife which the complainant had taken from them. On 05.01.2007, this quarrel had taken place. The accused has no liability to pay the amount of the cheques in question as the same were taken as a security.
During his cross examination he has deposed that he does not know what chit fund is. But he knows what is Committee. He had never said that he is a member of chit fund committee but not chit fund. The said committee is neither having any registration number nor any membership number, hence, he cannot produce the same. He also cannot give the particulars of cheque which he claims to Page 11 of 27 Naresh Shadija vs Sudhir Pahwa have given to the complainant as security of his membership with the committee.
It is correct that the complainant has not filed any case against him or Yashpal. It is wrong to suggest that he cannot give the particulars of his membership/registration or the particulars of the cheque as neither the complainant was ever running any committee nor was he or Yashpal, accused and his wife members of any such committee.
He had a talk with the accused with respect to the reason why the complainant was not returning the cheques to which the accused had told him that he had snatched the cheques from the Galla of accused and now he was demanding much more amount that was written in the cheque. Voluntarily stated, quarrel took place on 05.01.2007. It is wrong to suggest that accused issued the cheques in question towards discharge of loan liability to the complainant. It has been objected by Ld. Counsel for complainant to the effect that earlier he had said that he does not know anything about it. He does not know if Sudhir Pahwa has taken loan from Naresh Shadija or not as such he cannot say that from where he had received this information. It is correct that he was not present at the alleged incident of 05.01.2007. It is wrong to suggest that he has come at the instance of accused Sudhir Pahwa and he has deposed falsely at his instance. He has deposed whatever Page 12 of 27 Naresh Shadija vs Sudhir Pahwa he came to know from the accused and the market and it is the reality. It is wrong to suggest that he does not have personal knowledge with respect to any fact stated by him. It is wrong to suggest that he is deposing falsely.
10. Accused examined himself as DW3 and deposed that the complainant is his neighbour and is having a shop in the name of ECO Dry Cleaners in front of his shop. The complainant was running a chit fund committee in the year 2006. He and his wife were members of that chit fund committee alongwith Suraj, Yashpal and others. The complainant has taken blank cheques from each member of the committee as a security. The complainant has also taken blank cheques from him and from his wife. He and his wife paid the total amount of the committee which they had received from the complainant but he did not return their cheques. They demanded those cheques from him as a result of which he quarrelled with them on 05.01.2007 and the matter was reported to the police but the police advised them to approach the Court. He has no liability to pay the cheques amount towards the complainant as he and his wife did not take any loan from the complainant or they did not issue any cheques towards the payment of the loan amount. The cheques in question were taken by the complainant as the security amount and it was settled Page 13 of 27 Naresh Shadija vs Sudhir Pahwa that the same will be returned after payment of the committee amount but the complainant did not return the cheques in question to them and filed this false complaint against him and his wife.
On 05.01.07, the complainant had quarreled with him by entering into his shop and also taken some cheques from his drawer. He made a complaint to the police of PS Subzi Mandi in this regard but police did not take any action against Naresh Shadija, complainant. Photocopy of the complaint is Mark A. He also gave a complaint to DCP, North Civil Lines, Delhi. On 16.02.2007 and 17.02.2007 he also gave complaint to the Commissioner of Police, Delhi against Naresh Shadija regarding the incident dated 05.01.2007. Copy of the complaint is Mark B (Colly). He also filed a criminal complaint against Naresh Shadija, which is pending in the court of Sh. Neeraj Gaur, Ld. MM, PS Subzi Mandi, Delhi. He has no liability towards the complainant to pay the cheque amount which he had paid to him and the said cheques were taken by him as a security amount in lieu of the chit fund committee which he has taken from the complainant and was paid by him to the complainant. He requested several times to return his cheques which were taken by complainant as a security of the chit fund committee but he did not return the same and filed this false complaint against him and his wife as they both were members of Page 14 of 27 Naresh Shadija vs Sudhir Pahwa the chit fund committee which was run by the complainant.
During his cross examination, he deposed that he cannot give the name of the Chit Committee of which, he claims himself to be member, nor he can give his membership number and membership receipt. It is wrong to suggest that he cannot give these particulars because neither the complainant was running any chit committee nor he was member of any such committee. He has not lodged any complaint with the Registrar of Chit Funds with respect to the alleged chit committee being run by the complainant and the alleged fraud committed by him with him. It is wrong to suggest that no incident as alleged by him has ever taken place on 05.01.2007 or any other date and it is a story created by him. He does not know if the complainant had sold his residential house. It is wrong to suggest that the complainant has given a loan of Rs.9 Lacs to him and his wife after taking money out of his bank and from his savings and sale proceeds of his house. It is wrong to suggest that cheque ExCW1/1 was given by him towards the repayment of the above stated loan. It is correct that the said cheque has bounced on representation. It is correct that he has received the notice ExCW1/3. It is correct that in response to the legal notice, he has sent reply, photocopy of certified copy of which is DW3/C-1. It is correct that the complainant has filed a civil suit for Page 15 of 27 Naresh Shadija vs Sudhir Pahwa recovery against him pertaining to the cheque in dispute. The photocopy of certified copy of plaint in the said suit is Ex.DW3/C-2 and the photocopy of certified copy of his W.S in that suit is Ex. DW 3/C-3. (Certified copies of DW 3/C-1 to C-3 are placed in connected case bearing CC no.3241/10). It is wrong to suggest that he is deposing falsely.
9. I have gone through the evidence, written submissions and heard the final arguments advanced by both the parties at length.
10. The case laws material for the present facts and circumstances are discussed below.
In case entitled as "Rangappa vs Sri Mohan" [(2010), 11, Supreme Court Cases 441] where the Hon'ble Supreme Court of India, held that the bare denial of the passing of the consideration apparently does not appear to be any defence. To disprove the presumptions, the defendant has to bring on record such facts and circumstances, upon consideration on which the Court may either believe that the consideration does not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that Page 16 of 27 Naresh Shadija vs Sudhir Pahwa it does not exist and it was held that there is an initial presumption, which favours the complainant in the sense that the presumption mandated by Sec. 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. Since the accused did admit that the signatures on the cheques was his, the statutory presumption comes into play and same has not been rebutted even with regard to the material submitted by the complainant.
11. In the judgment "Hiten P. Dalal vs. Bratindra Nath Banerjee" AIR 2001 (SC) 3897 it was held that presumption under NI Act is a presumption of law as distinguished from a presumption under a fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with presumptions of innocence because by the later all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of a presumed fact.
12. In the judgment entitled "Pradeep Aggarwal & Ors vs Y. K. Goel", Page 17 of 27 Naresh Shadija vs Sudhir Pahwa Cr. M. C. 66/2009 (Hon'ble High Court of Delhi), where it was held that complaints u/s 138 NI Act is a summary trial and accused should first disclose his defence and merely saying "He is innocent" or "He plead not guilty" will not be sufficient and onus is on the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences.
It was further held that u/s 138 NI Act, there is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent.
13. In the judgment "Mosaraf Hossain Khan vs Bhagheeraha Engg. Ltd." AIR 2006 S. C. 128(2006), it was held that the object of the provision of section 138 NI Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. Dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Page 18 of 27
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14. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.
15. From the material on record, it is well established that both the complainant and accused are neighbours and have friendly relations from quite some time. Accused has admitted issuing the cheque in question as blank unsigned cheque to the complainant for security purpose, in his statement under section 313 Cr.P.C. Accused in his evidence admitted giving of the cheque in question as security in lieu of the Chit Fund committee which he had taken from the complainant. Accused has taken the defence that he requested the complainant several times to return his cheques but he did not return back the cheques. Assuming for a moment that the accused issued the cheques in question as security in lieu of Chit Fund Committee then what prevented him to lodge any complaint with the Registrar of Chit Funds with respect to the alleged Chit Committee run by the complainant and the alleged fraud committed by him to the accused. Also, the Page 19 of 27 Naresh Shadija vs Sudhir Pahwa accused could not give any name of the Chit Committee, any membership number or membership receipt. Meaning thereby that the accused did owe a debt and liability towards the complainant. The accused has also taken the defence that on 05.01.2007, a quarrel took place between the complainant and him and complainant took away some cheques from his drawer. He made a complaint to the police, but the police did not take any action. He also gave a complaint to DCP, North Civil Lines and on 16.02.2007 and 17.02.2007, he also gave complaint to the Commissioner of Police, Delhi. He has also filed a criminal complaint against the complainant on 15.03.2011. A careful perusal of the dates of these complaints reveal that filing of these complaints appears to be an afterthought. An incident which is as old as 05.01.2007 as per the deposition of the accused a complaint regarding the same before the Court of Law is filed on 15.03.2011, i.e. three years after the incident. Meaning thereby it is clearly an afterthought, on the part of the accused. Moreover, they are separate proceedings and have no relevance for the present case. Accused examined two more witnesses i.e. Sh. Yashpal and Sh. Suraj in his defence, who stated that they were also member of the alleged Chit Fund Committee. However, both of them could neither give any particulars of the committee nor could tell which of their cheque number was given to Naresh Shadija Page 20 of 27 Naresh Shadija vs Sudhir Pahwa as security. Their evidence is of no help to the accused. Resorting to legal remedy u/s 138 N.I Act and simultaneously filing a recovery suit is not barred by law. Hence accused has miserably failed in creating any reasonable probable defence and to rebut the statutory presumption in favour of the complainant.
16. The main contention of the accused is that the cheque in question was dishonored for the reason "Account closed". It is argued on behalf of accused that the reason of dishonor i.e "Account closed" does not fall within the ambit of the provision of sec. 138 of N. I Act. In banking practices the proforma or return memo is given by the bank for the return of the cheque. Said proforma is used only to indicate that the cheque is not honoured for a particular reason mentioned therein. A person in whose favour the cheque has been issued is entitled to have that amount provided there is sufficient amount to the credit of that account. Following the dishonor of cheque a notice has to be issued to the person who has issued the cheque inviting his attention to the fact that the cheque has been dishonored for the reason stated in the bank memo and that he is liable for penal consequence under the provision of sec. 138 N. I. Act. When the reason for the return of the cheque has been mentioned in bank returning memo then it is primary duty of drawer of the cheque to make the payment of the said amount of money to the payee within 15 Page 21 of 27 Naresh Shadija vs Sudhir Pahwa days of the receipt of the said notice, and he fail to comply with clause (c) of the sec. 138, the filing of the complaint within a month from the date of cause of action is also provided for under clause (b) section 142 of the Act. Thus, a notice has to be given to the drawer and the notice is condition precedent. That means, the drawer of the cheque has got an opportunity to know in advance before filing of the complaint the cheque was dishonored for a particular reason. When that information was already available with him and when he has not made any attempt to pay the same, it cannot be said that the cheque was returned not for insufficiency of funds or funds not arranged for. When an opportunity has been given to the drawer of the cheque by inviting his attention and when he has not paid the amount, it has to be construed that "Account closed", ultimately, resulting in the dishonoring of the cheque and preventing the payee from getting amount which is only on the account of the act committed by the drawer who has given the cheques. The drawer of the cheque himself is prima facie answerable for the dishonor of cheque. Therefore, it cannot be said that for the cheque in question which was returned by the bank as dishonored, the provision of sec. 138 of N. I Act are not attracted at all.
17. Ld. Counsel for the accused has relied upon the following case laws i.e. Ms. Narayana Memon vs State of Kerla & Anr.2006 (2) DCR 305, Manjeet Singh vs Page 22 of 27 Naresh Shadija vs Sudhir Pahwa State of Maharastra 2007 Cri.L.J. 2865, John. K. John. Vs Tom Vergis & Anr.IX, (207) SLT 81, Krishna Janardhan Bhat vs Dattatraya G. Hegde, Kumar Exports vs Sharma Carpets reported in I(2008) SLT 593, Vijay Polymers Pvt. Ltd. & Anr. vs Vinay Aggarwal 162(2009), DLT 23, Adarsh Gramin Sehkari vs Datu Ram Dass Ji, 2010, Cri.L.J. 1971, V. D. Jhangan vs State of Uttar Pradesh reported in SCR 1996 page 736, Kali Ram vs State of Himachal reported in (1973) 2 SCC 808, Kaushalya Devi Masand vs Roop Kishore reported in AIR 2011. I have highest regards for the case laws cited on behalf of the accused. However they have been pronounced in different context and is of no help to the accused.
18. Hence, the accused has miserably failed in substantiating his defence and showing that there is no liability of the accused towards the complainant. The complainant successfully proved all the essential requirements of sec 138 of the Act i.e. :
a) The cheque for an amount is issue by the accused to the complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability by the accused.
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c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque.
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
19. Under the aforesaid discussion, accused Sh. Sudhir Pahwa is held guilty for offence U/s 138 NI Act and he is consequently convicted for the offence u/s 138 of Negotiable Instruments Act.
Announced in open court (Deepika Singh) today i.e. on 11.01.2013 MM NI Act / North / Delhi Page 24 of 27 Naresh Shadija vs Sudhir Pahwa IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN MAGISTRATE, NORTH, DELHI CC No.1759/11 Naresh Shadija S/o Late Sh. S. D. Shadija c/o N-Ecko, Drycleaners, 5251, Chandrawal Road, Delhi-110007. ....................Complainant vs. Sudhir Pahwa S/o Sh. Partap Pahwa, R/o 5260, Kolhapur House, Delhi-110007. ............................Convict ORDER ON SENTENCE : 17.01.2013
Present : Complainant in person along with ld. Counsel Sh. Dilpreet Singh.
Convict in person along with ld. Counsel Sh. Hans Raj Singh. Arguments heard on sentencing.
Ld. counsel for the convict has argued that convict has a large family to support including two children and an old widow mother. He is sole bread earner of his family. He has been bonafide throughout in his conduct before the court, hence lenient view should be taken towards him. Page 25 of 27
Naresh Shadija vs Sudhir Pahwa Since the cases of dishonoring of the cheques are on high rise in the society, therefore, court is not inclined to take lenient view and release the convict under Probation of Offenders Act as it would not be having any deterrent effect.
Almost 6 years have elapsed since the cheque was dishonored and the same has yet not been repaid to the complainant.
Keeping in view this conduct of the convict, no leniency ought to be granted to him. It is true that the object of Section 138 N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noticed that when this offence was inserted in the statute in 1988, it provided for imprisonment upto one year which was revised to two years following the amendment to the Act in 2002, which makes it quite evident that the legislative intent to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation.
After hearing the arguments, court is of the considered opinion that convict Sh. Sudhir Pahwa is sentenced to simple imprisonment for three months and he is further liable to pay a compensation of Rs. 4,00,000/-(Rs. Four Lacs only) to the complainant within two months from today i.e. 17.01.2013 failing which, he will be liable to further simple imprisonment of five months.
At this stage, Ld. Counsel for the convict has filed an application Page 26 of 27 Naresh Shadija vs Sudhir Pahwa u/S 389 Cr.P.C for suspension of sentence, so that he can file an appropriate appeal before the appropriate court. Hence convict is admitted to bail for 30 days on furnishing bail bond in the sum of Rs.20,000/- along with one surety of like amount.
Bail bonds furnished. Accepted.
Convict is admitted to bail till the expiry of 30 days.
Come up before this court on 18.02.2013. Copy of the judgment and order on sentence is given free of cost to the convict.
Announced in open court (Deepika Singh)
today i.e. on 17.01.2013 MM-01 NI Act / North / Delhi
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