Delhi District Court
The Accused Approached The Complainant ... vs . on 13 February, 2012
Gurmail Singh v. Sarabjit Singh alias Vicky
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-03,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Gurmail Singh
S/o Sh.Darshan Singh,
R/o H-3/13, Malviya Nagar,
New Delhi.
. . . Complainant
Vs.
Sarabjit Singh alias Vicky
S/o Sh.Someshwar Singh,
R/o JF-16, IIIrd Floor,
Gupta Colony, Khirki Extension,
New Delhi.
. . . Accused
CC NO. : 2362/11
OFFENCE COMPLAINED OF : U/s 138 of Negotiable Instruments Act
PLEA OF ACCUSED : Not Guilty
DATE OF INSTITUTION : 30.09.2002
DATE OF RESERVING ORDER : 04.02.2012
FINAL ORDER : Conviction
DATE OF ORDER : 13.02.2002
Present: Complainant in person
Proxy Cl. Sh. Zubair Raza for the Accused alongwith accused in person
JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/s 138 of Negotiable Instruments Act. The brief facts of the case are as follows: -
1. The accused approached the complainant being a friend for some financial help and represented that the amount if advanced will be returned shortly and accordingly, the complainant advanced the friendly loan. In order to discharge the part liability of the friendly loan, the accused issued one cheque bearing no.033289 dated 27.8.2002 for a sum 02406R0494952010 -1- Gurmail Singh v. Sarabjit Singh alias Vicky of Rs.80,000/- drawn on Bank of Punjab Limited, C-32, Ground Floor, Malviya Nagar, New Delhi with the assurance that the same would be encashed positively on its presentation. The said cheque is Ex.CW1/A. The complainant presented the cheque in question for encashment with his banker i.e. Syndicate Bank, BGMS Hostel, New Delhi on 28.08.2002 with the remarks "Insufficient Funds" and the intimation to this effect was received by the complainant later on. The returning memo is Ex.CW1/B. Thereafter, a legal demand notice dated 04.09.2002 (dispatched on 05.09.2002) was served upon the accused, which is Ex. CW1/C and the postal receipt is Ex. CW1/D and U.P.C. receipt is Ex.CW1/D1. However, the said notice was received back as undelivered with the remarks "Bar bar jane par tattha ittelah dene par bhi praptkarta nahin milta". The returned registered envelopes are Ex.PW1/E. However, the notice sent under UPC has been duly served. The accused failed to make payment of the cheque amount to the complainant within the period stipulated in the legal demand notice. Therefore, the complainant has filed the present complaint, which is Ex.CW1/F.
2. Accordingly, the summoning order was passed against the accused on 13.12.2002 and on appearance of the accused, the notice under section 251 Cr.P.C. was served upon the accused on 26.04.2006, to which the accused pleaded not guilty and claimed trial.
3. I have perused the entire material on record and heard the submissions of the rival parties.
I have also perused the written submissions filed by counsel for the complainant.
4. At the outset, it is pertinent to mention the law in respect of section 138 of N.I. Act. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to prove all the following ingredients:
i. There is legally enforceable liability / debt.
ii. The drawer of the cheques issued the cheques to satisfy part or whole of the debt or other liability.
iii. The cheques so issued have been returned due to insufficiency of funds or exceeds arrangement.02406R0494952010 -2-
Gurmail Singh v. Sarabjit Singh alias Vicky iv. Payment not made by the accused despite service of the legal demand notice.
5. Moreover, the Negotiable Instruments Act also raises certain presumptions in favour of the holder in due course of a negotiable instrument. As per section 118 (a) of the said Act, "Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
6. Section 139 of the Act stipulates and as under:
"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, or any debt or other liability."
7. Under the light of these provisions and the provisions of the Law of Evidence, I have examined the evidence placed on record on behalf of both the parties. Now, the complainant filed his post summoning evidence by way of affidavit, vide which he only reiterated the averments made by him in his complaint and his pre-summoning evidence by way of affidavit. On the first opportunity, the accused failed to cross-examine the complainant and therefore, he sought another opportunity by moving an application under section 311 of Cr.P.C., which was allowed and the complainant was cross-examined. In the cross-examination, the complainant stated that the accused was residing at Gupta Colony and not Geeta Colony at the time when the legal demand notice was despatched to the accused. Thereafter, the complainant was confronted with the father's name of the accused, to which he denied any knowledge that the name of the father of the accused is "Late Sh. Jogeshwar Singh". The complainant also denied the suggestion that he has done any manipulation or forgery with the envelope in which the legal demand notice was sent, by tampering with the address and changing 'Geeeta Colony' to 'Gupta Colony'. The complainant then voluntarily stated in his cross-examination that the accused used to 02406R0494952010 -3- Gurmail Singh v. Sarabjit Singh alias Vicky reside in the house of his mother, which was in M-Block and in July, 2002, the accused was living on rent. The complainant further deposed that the accused had denied the receipt of the notice when he had sent it to him. He also denied the suggestion of the counsel for the accused that the accused had never resided at the address mentioned on the demand notice or that the accused never resided at the address mentioned on the legal demand notice. On being further questioned, the complainant stated that it is correct that he has not placed anything on record to show that the accused had actually received the legal demand notice. This statement of the complainant is meaningless in view of the noting given on the envelope of the legal demand notice and also the averment made in the complaint and affidavit of the complainant that despite several visits of the postman, the accused could not be served and the notice returned unserved.
8. The complainant, on being further cross-examined admitted that he had made a complaint to the SHO on 04.02.2002, but denied that he had mentioned in the same about running three committees of Rs. 9 lakhs with 20 members, with accused as one of the members. He, however, admitted Ex. CW1/D1, which is the complaint dated 04.02.2002 given to the SHO, P.S. Malviya Nagar, by the complainant. The complainant admitted knowledge of the FIR No. 1103/02, filed by the accused regarding certain cheques being stolen, including the cheque in question. He, however, stated that the said FIR has already been cancelled by the Court. He denied knowledge of any complaint pertaining to the stolen cheques being pending. The complainant further denied the suggestion that on 08.10.02, the accused had visited him to ask as to why the complainant had presented the cheque in question when the accused had never given the said cheque to the complainant. The complainant also denied that he threatened the accused on the said date or that he had forcefully taken the signatures of the accused on some blank papers under influence of liquor. The complainant also denied the suggestions in his cross that he has forged the writings on the cheque in question or that there is no liability against the accused in respect of the present complaint.
02406R0494952010 -4-Gurmail Singh v. Sarabjit Singh alias Vicky
9. In his statement under section 313 Cr.P.C., the accused stated that in August, 2002 he had found four cheques bearing no. 33281, 33288, 33283, 33289 missing from the drawer of his drawing room, and when after searching a lot he could not find the said cheques, he went to his bank on 23.09.2002 for giving 'Stop Payment' instructions in respect of the said cheques. He further stated that the bank informed him that one of the cheques out of the said cheques has already been tendered in an account through SyndicateBank, DGHS Hostel branch, New Delhi, and after making enquiries he came to know on 08.10.2002, that the cheque was presented by the complainant for encashment. He, therefore, immediately contacted the complainant on that day and asked him as to why he had stolen the cheque and tendered the same in his account for encashment. The accused further submitted that on the same day, the complainant threatened him that if the accused approached the Police, then he would lose his life and that the complainant further threatened him that he had formidable contacts with the Police and he obtained the signatures of the accused on certain blank papers under the influence of liquor. The accused further stated that thereafter he made a complaint to the police and ultimately filed one complaint in the court as well against the complainant regarding stealing, forgery of the cheque in question and later on an FIR was registered.
10. In his defence, accused did not examine any witnesses, except examining himself under section 315 Cr.P.C. In his examination, accused deposed that he was living in J1/74A, Khirki Extension, Gupta Colony, New Delhi in the last week of August, 2002. He stated that during the same time it came to his notice that four cheques bearing no. 033281, 033283, 033288, 033289, which had his signatures but no other details filled in, were misplaced from the drawer of the table in his drawing room. He further stated that he had kept the said cheques in his drawer for making payment to the labourers in respect of his construction business. The accused further deposed that when after making a search he could not find the said cheques, he went to his banker, i.e. Bank of Punjab, Malviya Nagar branch, and gave 'Stop Payment' instructions to his banker in respect of the said cheques. vide letter which is Ex. DW2/1. The perusal of the letter shows that the same is not the 02406R0494952010 -5- Gurmail Singh v. Sarabjit Singh alias Vicky letter vide which the accused has given the 'Stop Payment' instructions to his banker, rather the said letter is only an inquiry from the bank as to whether they had stopped the payment in respect of the above mentioned cheques in view of the request made by the accused vide letter dated 23.09.2002. The said letter bears the endorsement of the bank stating that had already stopped the payment of the said cheques on 23.09.2002 and the said endorsement is dated 05.12.2002. The letter by which the "stop payment" instructions were given by the accused to his banker was, however, not tendered in evidence.
11. The accused further deposed in his examination in chief that on the same day when he had gone to give 'stop payment' instructions to his banker, the bank official sitting at the desk informed him that one of the cheques bearing no. 033289 (which is the cheque in question) has already been dishonoured. It is further stated by the accused that after making an inquiry from the bank it came to his knowledge that the said cheque has been presented by the present complainant in his bank. The accused also admitted the signatures on the cheque in question, however, deposed that the other details on the cheque are not in his handwriting. He also stated that, thereafter he visited the residence of the complainant and questioned him as to why he had presented the cheque for encashment. It is further stated that the accused and the complainant had an argument on the said day and the complainant allegedly threatened the accused of his life and even told him that he has certain blank papers signed by the accused in his possession. It is further stated by the accused that complainant had also threatened him by saying that he has several contacts in the Police and he will make the accused run around in the courts. The accused then submits that he filed a complaint before SHO, P.S. Malviya Nagar and the same is still pending before the Ld. ACMM in CC No. 41/1. The said complaint alongwith certain documents was marked as Ex. DW2/B (Colly) and DW2/C. The photocopy of the complaint given by the accused to SHO was objected to by the opposite party as not being the original document. The accused also filed a rent agreement dated 07.07.2002, to prove that he was not residing at the address mentioned in the complaint and the legal demand notice. The accused stated that he has been residing at J 1/74 A, III Floor, Back side, 02406R0494952010 -6- Gurmail Singh v. Sarabjit Singh alias Vicky Gupta Colony, Khirki Extension, Malviya Nagar since 07.07.2002 as is evident from the said rent agreement. The perusal of the said rent agreement shows that the same was effective from 09.07.2002 and was valid for a period of 11 months. The accused also deposed that the complainant was aware about his said address as he used to visit the accused on the said address.
12. In the cross-examination, there were several discrepancies, contradictions and lacunaes found in the deposition of the accused. The accused, firstly, did not give any satisfactory reply to the question regarding the issuance of cheques between the numbering 033283 to 033287. He also did not state anything as regards the issuance of cheque no. 033282. The accused stated in his cross that he had gone to the house of the complainant prior to the filing of the complaint, that is on 08.10.2002. Perusal of the record shows that the complaint to the SHO concerned was made by the accused on 08.10.2002. The accused had stated in his statement under section 313 Cr.P.C. that after many visits, he came to know on 08.10.2002 that the cheque in question was presented by the complainant and immediately on that day he contacted the complainant as to why he had stolen the said cheque and tendered the same in his account for encashment. The accused further stated in his statement under section 313 Cr.P.C. that, thereafter, he went to the police and made complaint and ultimately filed one complaint case in the court against the complainant. The accused gave the same statement in his examination-in-chief as well that he had visited the residence of the complainant on 08.10.2002. But, it is evidence from the cross-examination of the accused that he clearly faltered in his statement when he stated he had visited the complainant's residence prior to the filing of the complainant on 08.10.2002.
13. The accused further stated in his cross that he cannot say whether he had gone to the residence of the complainant after giving 'stop payment' instructions to his banker or prior to that. In his statement under section 313 Cr.P.C., accused had stated that he had gone to his banker for giving 'stop payment' instructions on 23.09.2002. The document 02406R0494952010 -7- Gurmail Singh v. Sarabjit Singh alias Vicky Ex. DW1/1 is also clear that the 'stop payment' instructions were given to the banker on 23.09.2002. Also, from the discussion in th previous para, it is also clear that the accused had visited the residence of the complainant on 08.10.2002, that is after giving 'stop payment' instructions to his banker in 23.09.2002. Now, on being further cross-examined, the accused had deposed that "It is correct that I had given the 'stop payment' instructions to my bank in December, 2002". It is clear from these depositions of the accused that the accused is contradicting himself at various points.
14. Moreover, the entire depositions of the accused when read together show that after an inquiry from his bank, accused had come to know on 08.10.2002 that the cheque in question was presented by the complainant in bank account. The same day itself accused went to the residence of the complainant to question him as to why he stole the cheque and presented it for encashment; on the same day, accused and the complainant had a quarrel wherein the complainant threatened the accused; the same day itself the complainant made the accused sign on certain blank papers; and on the same day itself the accused lodged a complaint to SHO, P.S. Malviya Nagar against the complainant. It is highly improbable and beyond any logic to perceive that the entire series of events as stated above could have happened on a single day, that is, on 08.10.2002. The story prepared by the accused defies all logic and reasoning of common perception.
15. The accused has also contradicted himself when he states in his examination-in-chief that the complainant had threatened him on 08.10.2002 that he has certain blank papers signed by the accused in his possession, which he had got from the accused under influence of liquor; while in the statement under section 313 Cr.P.C., the accused had stated that on the same day itself, that is when he went to the residence of the complainant on 08.10.2002, the complainant quarreled with him and had obtained the signatures of the accused on some blank papers under influence of liquor. These apparent contradictions create a serious doubt in the defence prepared by the accused. Moreover, it is also beyond one's imagination to think that when a person goes to the residence of the other and a quarrel 02406R0494952010 -8- Gurmail Singh v. Sarabjit Singh alias Vicky breaks in between both the persons, the said two persons would then sit together and drink alcohol and consequently one of the persons would be able to procure the signatures of the other on certain blank papers. The entire story of the defence is full of doubts, fallacies and baseless averments.
16. The accused further stated in his cross-examination that he had never mentioned his address as M-77, Malviya Nagar in P.S. Malviya Nagar on 13.02.2002 and that he had never visited the said P.S. on the said date. The record contains the document dated 13.02.2002, whereby a settlement was arrived at between the parties in respect in respect of certain money to the tune of Rs. 3,72,125/- due upon the accused in favour of the complainant and the accused had agreed in his statement given in P.S. Malviya Nagar that he will repay the said amount in installments of Rs. 5000/- per month. The said document contains the signatures of the both the parties. Even though the said document has neither been confronted to by the complainant from the accused, nor the same has been tendered in evidence by the complainant, a bare glance at the document makes it clear that as per the said document, the accused could not have signed a blank paper on which the contents were later on added. The signatures of the accused are somewhere in the middle of the document at the corner and the accused has also put date after signing the same. It is very hypothetical case to think that the said document was a blank paper on which the signatures of the accused must have been taken and thereafter the contents on the said document must have been written down. Nevertheless, since the said document has not been brought on record, therefore, the same is not being relied upon for the purpose of proving any of the averments given by the accused.
17. The accused had also denied the suggestion made by the counsel for the complainant, that he had ever appeared in P.S. Malviya Nagar in respect of a complaint dated 04.02.2002, filed by the complainant. The photocopy of the said complaint is Mark PW1/1 (Colly) as the counsel for the accused objected to the photocopy being tendered in evidence. The accused was also shown photocopies of two cheques bearing no. 033285 and 360474 and 02406R0494952010 -9- Gurmail Singh v. Sarabjit Singh alias Vicky was asked to identify his signatures at point 'A' on the said documents, to which the accused gave a vague reply that he cannot identify his signatures as the same are not legible. The said documents were, thus, marked as Mark PW1/2 and PW1/3, and the same were also objected to by the counsel for the document as being the photocopies. Since these documents have not been sufficiently proved, therefore, they are not being relied upon in evidence by this Court. Nevertheless, the documents Marked as Mark PW1/2 and PW/3 does raise a doubt that the same may have been issued to the complainant by the accused in lieu of the settlement, which the complainant had allegedly stated, was arrived at in P.S. Malviya Nagar dated 13.02.2002. Moreover, as the accused had earlier stated in his cross examination that he must have issued cheques between the series 033283 to 033287 to some other persons for making payments to them, his refusal now to identify his signatures clearly raises a suspicion that the accused is intentionally trying to suppress certain facts.
18. The accused in his further cross-examination stated that he does not remember the date on which he had filed the complaint which is pending as CC No. 41/1 (Ex. DW2/B). The perusal of the said complaint shows that the same was filed on 10.12.2002. In his statement under section 313 Cr.P.C. as well as deposition under section 315 Cr.P.C. the accused had stated that after the confrontation he had with the complainant on 08.10.2002, he went to lodge a police complaint in P.S. Malviya Nagar on the same day. There is nothing on record to show as to what happened to the said complaint. Now, the complaint before Ld. ACMM as mentioned above has been filed on 10.12.2002. After reading the entire material on record and establishing the connection between all the facts, it appears that the said complaint before ACMM was nothing but an after-thought by the accused as when when no action was taken on the complaint filed by the accused in P.S. Malviya Nagar, the accused filed the complaint before Ld. ACMM in order to build a strong defence against the complainant and escape liability, as his cheque issued to the complainant was already dishonoured.
02406R0494952010 -10-Gurmail Singh v. Sarabjit Singh alias Vicky
19. Perusal of the record also shows that the accused had lodged an FIR dated 21.12.2002 in P.S. Malviya Nagar, the photocopy of which is CW1/D2 and which was confronted to by the counsel for the accused during cross-examination of the complainant. In the arguments, the counsel for the complainant had stated that the FIR filed by the accused has already been cancelled by the Court as no prima facie evidence was found in respect of the allegations made by the accused in the said complaint. The accused had, on the contrary, argued that the FIR was cancelled as the complainant had contacts with the Police officials, but no evidence was led to support this argument. It has not been made clear by the accused as to why he lodged the said FIR after the filing of the complaint before Ld. ACMM. Thus, the entire defence prepared by the accused, that is, the complaint to SHO, P.S. Malviya Nagar dated 08.10.2002, the complaint filed in the Court of Ld. ACMM dated 10.12.2002 and the FIR dated 21.12.2002, when read in series, appear to be nothing but an after-thought to prepare a planned defence against the complainant. The complainant had argued that the complaint which was pending before Ld. ACMM has been dismissed in default as the accused, who was complainant in the said complaint, had not appeared before the court for several dates. The said argument was not countered by the accused, and hence, the argument of the complainant appears to be valid. In view of the said observations, the defence of the accused appear to be nothing but a false and concocted story and the documents furnished by the defence appear to be nothing but an after-thought.
20. The only other defence which the accused had heavily relied upon is that the legal demand notice was never served upon him and the complainant was well-aware that the address on which the notice was issued was not the address of the accused. The complainant, however, denied every suggestion put by the counsel for the accused in the cross- examination of the complainant that the address on which the notice was sent was not the correct address of the accused. Moreover, the noting of the postman on the envelope in which the demand notice was sent, nowhere shows that the addressee was not the resident of the given address. Had the address been wrong, the noting would have been 02406R0494952010 -11- Gurmail Singh v. Sarabjit Singh alias Vicky "incorrect address" or "no such person at the given address". The defence led by the accused was the rent agreement to show that he was resident of premises situated at J-1/74A, Khirki Extn., Gupta Colony, New Delhi since July, 2002. It was also alleged by the accused that the complainant was well-aware about the said address of the accused as the complainant used to often visit the residence of the accused. The complainant, however, categorically denied in his cross examination that he was aware about said address of the accused or that he intentionally dispatched the legal demand notice on the wrong address. Even though, the accused filed a rent agreement to show that since 09.07.2002, he was residing on rented premises, the noting mentioned on the legal demand notice that 'the accused was not found at the given address despite several visits' could not be rebutted. The rent agreement also does not sufficiently corroborate the submissions of the accused in view of the noting given on the envelope.
21. Further, the legal demand notice was served upon the last known address of the accused.
Also, it is a settled law that once the notice is dispatched on the correct address of the accused, unless and until the contrary is proved by the addressee, service of the notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business (in judgment of C.C. Alavi Haji v. Palapetty Muhammed & Anr., 2007 Cr.L.J. (SC) 3214 : 2007 (7) SCR 326 (emphasis supplied)). It is also common perception that sending notice on the last known address of the accused is sufficient service upon the accused, as the complainant cannot be expected to trace out the address of the accused, who may keep on changing his address in order to evade service This would, in fact, frustrate the spirit of section 138 of N.I. Act as it would be easy for fraudulent and unscrupulous parties to evade service of demand notice by changing their address, once it comes to their knowledge that the cheque given by him has been dishonoured. Moreover, in Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, it was held that there is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is 02406R0494952010 -12- Gurmail Singh v. Sarabjit Singh alias Vicky open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.(emphasis supplied). In Parimal v. Veena @ Bharti, (2011) 3 SCC 545, where a similar controversy regarding the service of the notice was considered by the Apex Court, the court while quashing the order of the High Court and relying upon its previous opinion, observed that the respondent had not made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Also, not a single document had been summoned from the post office neither any attempt has been made by the respondent to examine the postman. (emphasis supplied) Further, the provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. In the present case as well, the onus was upon the accused to establish that the notice was not served upon him, but no cogent evidence was brought by the accused to prove the same.
22. As held in various caselaws, the standard of proof on the part of the accused and that of the prosecution is different in a criminal. Whereas, prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he/she relies (cited from, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of 02406R0494952010 -13- Gurmail Singh v. Sarabjit Singh alias Vicky Drum Manufacturing Co. v. Amin Chand Pyarelal (1993) 3 SCC 35, after analysing various judgments, the Apex Court observed that the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant (or the accused) can prove the non-existence of a consideration by raising a probable defence. Furthermore, in the recent judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) INSC 373 (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is a rebuttable presumption, even though this initial presumption lies in favour of the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, prosecution can fail.
23. Thus, the accused was not able to sufficiently rebut the presumption lying in favour of the complainant. The contradictions and discrepancies in the depositions of the accused at various places further weaken the defence of the accused. In view of the material on record, submissions of the Counsel for both sides, the admission by the accused of the signatures on the cheque in question as well as the fact of giving "stop payment"
instructions to his banker, and the presumption of the law lying in favour of the complainant, I am of the considered view that the complainant has proved its case beyond reasonable doubt as against the accused. Accused has clearly failed to rebut the presumption of law. Apart from not raising a probable defence, accused was also not able to contest the existence of a legally enforceable debt or liability. I, therefore, hold accused Sarabjit Singh @ Vicky, guilty of the offence under Section 138 of Negotiable Instruments Act. Accused is convicted.
File be consigned to record room after due compliance
Pronounced in open court. (Ms. ANKITA LAL)
Dated: 13.02.2002 MM (NI Act)-03, South-East,
Saket Courts, New Delhi.
02406R0494952010 -14-
Gurmail Singh v. Sarabjit Singh alias Vicky
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-03,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Gurmail Singh
S/o Sh.Darshan Singh,
R/o H-3/13, Malviya Nagar,
New Delhi.
. . . Complainant
Vs.
Sarabjit Singh alias Vicky
S/o Sh.Someshwar Singh,
R/o JF-16, IIIrd Floor,
Gupta Colony, Khirki Extension,
New Delhi.
. . . Accused
ORDER ON SENTENCE
Date: 16.02.2012
Present: Sh.Sanjeev Singh, Counsel for the complainant alongwith complainant in person.
Sh.Samir Chandra, Counsel for the accused alongwith accused in person.
Accused Sarabjeet Singh has been convicted for the offence punishable u/s 138 of N.I. Act vide judgment dated 13.01.2012. I have heard Ld. Counsel for complainant as well as Ld. Counsel for the accused on the sentencing of the accused.
Ld. Counsel for the accused submits that the accused is now ready to settle the matter with the complainant and he has brought the entire amount of cheque in question. The complainant, on the other hand, submits that he has fought the case for more than 10 years and has suffered great expense at the cost of the accused, both physically and mentally. It is also argued by counsel for the complainant that in last 10 years, the accused never approached the complainant for any settlement and the complainant has undergone extreme mental agony and harassment during the entire course of the litigation. It is further argued that the complainant has also suffered heavy 02406R0494952010 -15- Gurmail Singh v. Sarabjit Singh alias Vicky monetary loss in pursuing the present litigation and the accused should also be made liable to pay heavy compensation to the complainant in order to make good the loss suffered by the complainant in these last 10 years.
I have perused the record of this case and after considering the submissions of both the counsels, and in view of the fact that the accused is now ready to compound the matter with the complainant, I deem it fit to take a lenient view against the accused. I am of the view that after balancing the interests of both the parties, I deem it proper to impose a sentence of fine of Rs. 1,60,000/- upon the accused. The entire fine shall be paid as compensation to the complainant. In default of payment of fine, the accused shall be liable to undergo a Simple Imprisonment of 1 month. Accused has paid part compensation of Rs. 80,000/- to the complainant in cash today, and he seeks one week's time to make the balance payment of the compensation. Accused is given time till 22.02.2012 to make payment of the entire balance compensation to the complainant.
Bail Bond of Accused Sarabjeet Singh is cancelled. Surety is discharged. Endorsements, if any be cancelled. Documents, if any, be returned.
Copy of this order as well as the copy of judgment be given to the accused immediately, free of cost.
Pronounced in open court. (MS. ANKITA LAL)
Dated: 16.02.2012 MM (NI Act)-03, South-East,
Saket Courts, New Delhi.
02406R0494952010 -16-