Delhi District Court
Mohd. Iqbal vs . on 18 September, 2010
1
IN THE COURT OF SH. VIVEK KUMAR GULIA,
METROPOLITAN MAGISTRATE - 1 [East],
KARKARDOOMA COURTS, DELHI.
In the matter of:
Mohd. Iqbal
Vs.
Jagdish Bhardwaj
C.C. No. 516/07
Police Station: Nand Nagri
JUDGMENT
1. The serial number of the case : 619/05
2. The date of institution : 15.02.2005
3. Name of the complainant : Mohd. Iqbal S/o. Sh. Ali Mohd., Proprietor of :
M/s. Sunlight Finishing At E-2/310, Nand Nagri, Delhi-110 093.
4. The name, parentage and residence of accused : Jagdish Bhardwaj Proprietor of :
M/s. Bhardwaj Enterprises R/o. A-560, Gali no. 12, Mandoli Extension, Delhi.
5. Offence complained of : U/s. 138 N. I. Act
6. Plea of the accused : Pleaded not guilty
7. Final Order : Convicted
8. Final argument heard/ Case reserved for Judgment : 08.09.2010
9. Date of such Judgment : 18.09.2010 Page no. 1 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 2 REASONS FOR THE DECISION OF THE CASE :
1. In the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act"), it has been alleged by complainant that accused approached him for a job work, i.e., white washing of 4689 pieces of "top" and after completion of work, a bill no. 000102 dt. 18.09.2003 for Rs.
18,756/- was issued in accused's handwriting. On request of accused, the time for making payment against the aforesaid bill was extended several times and ultimately accused issued a cheque bearing no. 844509 dt. 10.12.2004 for Rs. 12,000/-, drawn on Syndicate Bank, Nand Nagri, Delhi. On presentation, the cheque was returned back unpaid with the remarks "Account Closed". Thereafter, legal/demand notice dated 30.12.2004 was sent to accused through registered post as well as UPC. In view of above, it is prayed that since accused neglected to make payment of cheque amount, he be tried for the offence u/s. 138 of the Act.
2. Substance of accusation in the form of written notice u/s 251 Criminal Procedure Code, 1973, was read over and explained to accused on 18.03.2006, to which he pleaded not guilty and claimed trial.
Page no. 2 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 3
3. In post summoning complainant evidence, Complainant himself appeared as CW1 in the witness box and reiterated the facts mentioned in the complaint. Further he proved the documents, i.e., bill Ex.CW1/1, cheque in question Ex.CW1/2, cheque returning memo Ex.CW1/3, demand/legal notice Ex.
CW1/4, postal receipt Ex. CW1/5 and UPC Ex.CW1/6.
4. The accused was questioned generally about the case put forward by the complainant against him and his statement was recorded U/s. 313 Cr.P.C., whereby he admitted the issuance of the cheque in favour of complainant. However, he denied the receipt of demand notice sent by complainant. It is also stated that he had made payment of cheque amount before its presentation in the bank and documentation work was done in regard to payment given to complainant but the evidence in that regard has been destroyed as fire took place at his business place on 17.01.2006. Accused opted to lead evidence in his defence but failed to produce any despite number of opportunities granted.
5. I have heard the bar and perused the record.
6. The most emphasized plea of accused in his defence is Page no. 3 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 4 that he has discharged his liability in regard to cheque in question as the cheque amount has been paid to complainant in cash and therefore, complainant had no right to present the cheque in bank for encashment. To substantiate his defence, accused cross-examined complainant (CW1). During cross-
examination, it came on record that there were good relations between the parties, however, completion denied the suggestions that he has received Rs. 12,000/- against the cheque in question; that he mentioned later on that he has misplaced the cheque and that he gave in writing that he has received the amount against cheque in question in the presence of two witnesses. The accused's suggestion, that the documentary evidence qua payment against the cheque in question has been destroyed in the fire which took place at the factory of complainant, was also stated to be incorrect. Further the accused failed to produce any witness or documentary evidence in his defence.
7. If the aforesaid evidence is analyzed, it appears that complainant has withstood the test of cross-examination successfully and accused failed to elicit anything during cross-
examination of complainant which can demolish his case or Page no. 4 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 5 which is in favour of accused. It is observed that accused has not disputed the issuance of cheque in favour of complainant and the bill Ex.CW1/1. The only dispute is regarding the subsequent payment allegedly made against the cheque in question. However, the accused has failed to bring an iota of evidence to substantiate his defence that cheque amount was paid to complainant in the presence of witnesses and this transaction was reduced into writing. Neither witnesses of transaction have been produced nor any document is brought on record to establish the cheque payment. Further, it is rightly pointed out by Ld. counsel for complainant that accused has not even summoned any witness from the fire department to prove the incident of fire mentioned in his defence.
9. Now the question arises as to whether material on record is sufficient to disbelieve the version of complainant. The settled position of law is that the rebuttal cannot be by way of mere denial of liability for issuance of cheque and it has to be by way of proof adduced in the form of evidence to the satisfaction of the Court. In other words, the burden to prove that the negotiable instrument was not issued for consideration lies upon the accused in a prosecution under Section 138 of the Act though it is equally established the burden is not heavy as it's Page no. 5 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 6 upon complainant to bring home the guilt of accused beyond reasonable doubts. In the case of Dhanvantrai Balwantrai Desai Vs. State of Maharasthra, AIR 1964, SC 575, the Constitution Bench of Supreme Court, while clarifying the distinction between discretionary and mandatory presumption, held that, " In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision (Sections 118 and 139 of the Act) make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to be rebutted."
10. In light of discussion made above, it is held that accused failed to rebut the presumptions existing in favour of complainant. The defence appears to be improbable, insufficient and unconvincing. In the result, accused is pronounced guilty of Page no. 6 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 7 the offence punishable u/s. 138 of the Act.
Announced in the open (Vivek Kumar Gulia) court on 18.09.2010 MM-I (East) KKD Courts (total seven pages) Delhi. Page no. 7 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 8 1. IN THE COURT OF SH. VIVEK KUMAR GULIA, METROPOLITAN MAGISTRATE - 1 [ East], KARKARDOOMA COURTS, DELHI. S.K. Tiwari Vs. Kumar Gaurav CC no. 176/04 PS Shakarpur ORDER ON SENTENCE 23.08.2010 Present :- Complainant in person.
Convict Kumar Gaurav on bail with counsel.
Arguments heard on the point of sentence. Complainant contended that since convict issued the cheque in discharge of the liability and his guilt has been established beyond any doubt, he be punished with maximum sentence provided.
On the other hand, Ld. defence counsel submitted that convict is the first offender and is the only bread winner of his family consisting of widow mother and younger brother. Therefore, it is prayed that a lenient view may be taken.
Keeping in view the submissions made on behalf of convict and considering that offence u/s. 138 NI Act has been introduced to encourage greater vigilance to prevent usual callous attitude of drawer of cheque and to lend greater credibility to the greater transactions and lastly that the cases of dishonour of cheques are on the high rise in the 2. society, convict is sentenced to simple imprisonment for one Page no. 8 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 9 month alongwith fine of Rs. 56,000/- as per section 143(1) (proviso) N.I. Act r/w section 357(1)(b) of Cr.P.C. Out of this amount, Rs. 55,000/- (cheque amount being Rs. 35,000/-) shall be payable to complainant as compensation and Rs. 1000/- to State within a month from today. In default of payment of any part of fine, convict shall further undergo simple imprisonment for one month.
Further, it is ordered that compensation amount, if not paid in time, shall be recovered as fine as per provisions of 421 Cr.P.C.
At this stage, an application u/s. 389(3) Cr.P.C. for suspension of sentence and grant of bail is moved by convict. Heard. Since the convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount. Bail bond is furnished and accepted till 22.09.2010.
Announced in the open ( Vivek Kumar Gulia )
court on MM-I(East)/KKD/Delhi
C.C. No. 176/04
P.S.: Shakarpur
23.08.2010
Present:- Complainant in person.
Convict on bail with counsel
Separate order on sentenced passed today. In case order Page no. 9 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 10 of the appellate court is not received till 22.09.2010, file be put up before me for further orders.
Copy of judgment and order on sentence supplied to convict free of cost.
File be consigned to Record Room.
(Vivek Kumar Gulia) MM-I (East) KKD Courts Delhi.
Page no. 10 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 11 1. IN THE COURT OF SH. VIVEK KUMAR GULIA METROPOLITAN MAGISTRATE - 1 [East] KARKARDOOMA COURTS, DELHI.
M/s. Celestial Knits & Fabs Vs. M/s. S.S. Enterprises C.C. No. 198/04 Police Station: Gandhi Nagar ORDER ON SENTENCE 07.09.2010 Present :- Complainant in person with counsel.
Convict Harpreet Singh on bail with counsel.
Arguments heard on the point of sentence. It is submitted by complainant that after the judgment, he has settled the dispute with the accused in regard to all the cheques in question and civil litigation voluntarily out of court. Further it is mentioned that today he has received the entire settlement amount by way of a banker's cheque and therefore, he has no objection if a lenient view is taken against the accused. Separate statement of complainant is recorded in this regard.
Page no. 11 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 12 On the other hand, Ld. defence counsel submitted that convict is the first offender and has paid the entire settlement amount to the complainant and therefore, a lenient view may be taken.
Keeping in view the submissions made on behalf of both the sides, I am of the opinion that no purpose would be served by sentencing 2. the convict with imprisonment. Interest of the justice would be served, if convict is burdened with fine only. Accordingly, convict is sentenced to pay fine of Rs. 1000/-. Fine deposited.
Announced in the open ( Vivek Kumar Gulia ) court on 07.09.2010 MM-I(East)/KKD/Delhi Page no. 12 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 13 C.C. No. 198/04 Police Station: Gandhi Nagar 07.09.2010 Present:- Complainant with counsel.
Convict on bail with counsel Separate order on sentenced passed today. Copy of judgment and order on sentence supplied to convict free of cost.
File be consigned to Record Room.
(Vivek Kumar Gulia) MM-I (East) KKD Courts Delhi.
Page no. 13 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07 14 Page no. 14 of 7 Mohd. Iqbal vs. Jagdish Bhardwaj; CC No.516/07