IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. A. No. 802/2003
20.12.2008
Judgment reserved on: 06.08.2008
Judgment delivered on:December 20,2008
Shri Hamid Khan ...... Appellant
Through: Mr. Shahid Ali with
Mr. Shoeb Shakeel, Advs.
versus
Shri Mohd. Arif ..... Respondent
Through: Mr. M. Mohsin Israily, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
By way of this appeal filed under Section 374 Cr.P.C. the appellant
seeks to challenge the judgment and order of sentence dated 10.11.2003 and
12.11.2003, respectively, passed by the Additional Sessions Judge Shri Chandra
Gupta in NIA No. 52/2003. Brief facts as set out in the appeal and relevant for
deciding the present appeal, are as under:-
The appellant Sh. Hamid Khan had issued a cheque bearing No. 426360 dated
20.3.2001 for an amount of Rs.27,000/- drawn on Standard Chartered Bank Branch,
Parliament Street, New Delhi on account of his debt/liability towards the
respondent/complainant being Prop. Of M/s Zubeda Enterprises in whose favour the
said cheque was issued by the appellant/accused as proprietor of M/s H.K. Craft
(India). The said cheque on being presented for encashment to the bankers of
the appellant/accused by the respondent/complainant through his banker was
dishonoured vide cheque returned unpaid Memo dated 24.5.2001, for the reasons
?Insufficient Funds?, which information alongwith the dishonoured cheque was
received by the respondent/complainant vide Debit Advise dated 25.5.2001 from
his banker M/s Bombay Mercantile Bank Ltd. The respondent/complainant issued a
legal notice dated 30.5.2001 under the provisions of Section 138 (b) of the Act
to the appellant/accused vide Registered A D Postal Receipt and also by UPC both
dated 31.5.2001. That the appellant/accused did not make payment of the cheque
amount within the stipulated period as envisaged under the provisions of Section
138 (c) of the Act and hence the complaint within the period of limitation was
filed. The respondent/complaint further stated in his complaint that the said
cheque was issued in his favour by the appellant/accused on account of the
payment of privately run committee for a total amount of Rs.50,000/- which
the respondent/complainant had subscribed at a monthly subscription of Rs.2500/-
along with 19 other members. It is further stated that since the respondent had
already paid 19 installments at the rate of Rs.2500/- to the appellant/accused
thereby making total payment of Rs.47,500/- towards the said committee of
Rs.50,000/- he became entitled to an amount of Rs.47,500/- from the
appellant/accused after deducting the amount of Rs.2500/- towards its 20th
installment for the said committee amount of Rs.50,000/-. It has been further
alleged that out of Rs.47,500/- an amount of Rs.20,500/- has already been paid
by the appellant/accused to the respondent/complainant and for the balance
amount of Rs.27,000/- the appellant/accused had issued the subject cheque in his
favour.
The principal contention raised by Mr. Shahid Ali, counsel for the
appellant is that the Trial Court has completely overlooked the testimony of two
independent witnesses, who entered the witness box as DW-1 and DW-2 and
unequivocally supported the defence version. Contention of the counsel for the
appellant was that the appellant made the payment of Rs. 27,000/- in cash in the
presence of the said witnesses and due to cordial relations between the parties
the appellant did not insist for the return of the cheque. Counsel for the
appellant further submitted that it is admitted case of the parties that the
appellant was running a committee in which the respondent complainant was a
member and the total payment of Rs. 50,000/- was payable by the appellant to the
respondent. It is also not in dispute that the appellant had made payment of Rs.
20,500/- in cash after adjusting an amount of Rs. 2,500/- towards one monthly
subscription of committee and a sum of Rs. 27,000/- was left to be paid by the
appellant. It is also not in dispute that post dated cheque in the sum of Rs.
27,000/- was issued by the appellant in favour of the respondent as a security,
otherwise appellant would not have handed over the said post dated cheque at the
time of making payment of the said amount of Rs. 20,500/- in cash in the month
of December, 2000. Strengthening his arguments further, counsel for the
appellant contended that for what reasons the respondent had not presented the
cheque for about more than two months after the date of the issuance of the said
cheque. Counsel for the appellant also submitted that the legal notice dated
30th May, 2001 alleged to have been sent by the respondent complainant was never
received by the appellant. Counsel for the appellant further pointed out that
the testimony of both DW-1 and DW-2 remained unipeached and therefore, there was
no option for the Trial Court except to rely upon the testimony of both the said
independent witnesses. No contrary suggestion to these witnesses was given by
the respondent suggesting that the amount of Rs. 27,000/- was not paid by the
appellant to the respondent or the suggestion that the appellant did not ask for
the return of the cheque from the respondent. That the Trial Court also wrongly
held that the cheque in question was not post dated one and the payment of the
cheque could not have been made on 17.3.2001 prior to the date of the said post
dated cheque. No reasons have been advanced by the Trial Court in disbelieving
the statements of the said two witnesses, who deposed in total conformity with
the stand taken by the appellant in his statement recorded under Section 313 of
the Cr.P.C. Based on the said submissions counsel for the appellant submitted
that the judgment and order of sentence passed by the learned Trial Court is ex
facie illegal, perverse and against the facts on record.
Refuting the said submissions of the counsel for the appellant Mr. M.
Mohsin Israily, counsel for the respondent supported the judgment and order of
sentence passed by the learned Trial Court. Counsel for the respondent submitted
that the learned Trial Court rightly discarded the testimony of the said two
witnesses DW-1 and DW-2 in the face of the dishonuored cheque as well as the
legal notice sent by the respondent. The contention of the counsel for the
respondent is that the theory of cash payment by the appellant in the presence
of the alleged two persons without any insistence on the part of the appellant
for the return of the original cheque clearly proves falsehood on the part of
the appellant and such witnesses being procured witnesses. Counsel for the
respondent further submitted that legal notice was duly sent to the appellant
vide registered AD as well as UPC and, therefore, it cannot be said that no
legal notice was served upon the appellant. Without denying the fact that the
said cheque was post dated cheque, he further submitted that the same was not
presented for collection of the amount only due to the request received from the
appellant for not presenting the cheque for about two months period. Counsel for
the respondent thus submitted that there is no illegally, infirmity or
perversity in the judgment and order of sentence passed by the learned Trial
Court.
I have heard learned counsel for the parties at considerable length and
perused the record.
Both the parties admitted that appellant was running a private committee
in which the respondent was a member. The said committee comprised of 20 members
for a period of 20 months with monthly payment of Rs. 2,500/- depending upon the
bid amount and total amount payable was a sum of Rs. 50,000/-. Further, it is
also admitted by both the parties that a total amount of Rs. 47,500/- was
payable to the respondent by the appellant after deducting an amount of Rs.
2,500/- towards the last 20th installment. It is also an admitted fact between
the parties that Rs. 20,500/- was already paid to the respondent by the
appellant and only Rs. 27,000/- was due for which the appellant issued a cheque.
It is also not in dispute that the said cheque No. 426360 was issued by the
appellant towards a debt of Rs. 27,000/- in favour of the respondent which when
presented on 14.5.2001 and 24.5.2001 was returned on 15.5.2001 and 25.5.2001
with the reason ?insufficient funds?, thus, indisputably the said cheque bounced
due to insufficiency of funds in the account of the appellant.
Now, the dispute arose on account of the fact that the cheque bounced and
the appellant did not pay Rs. 27,000/-, which was due, to the respondent. The
appellant?s story is that he paid Rs. 27,000/- to the respondent in cash and
asked for return of the post dated cheque issued by him in front of Sh. Naseem
Ahmad, DW-1 and Sh. Shahid Khan, DW-2, when they were sitting with the appellant
at Bathak at Seelampur on 17.3.2001.
There appears to be something fishy in the story of the appellant and
also in the depositions of the aforesaid witnesses Sh. Naseem and Sh. Shaheed.
The story made by the appellant talks about a post dated cheque being issued by
him but nowhere in the complaint of the respondent there is a mention of the
post dated cheque. Further, I fail to comprehend that when the payment was made
in cash, as per the story of the appellant, then apart from asking for return of
the cheque why directions were not given to the bank to stop payment of the said
cheque.
Furthermore, though both Sh. Naseem, DW-1 and Sh. Shaheed, DW-2 narrated
the same story but both also admitted in their cross examination that they were
unaware of the transactions between the appellant and the respondent. Sh.
Naseem Ahmad, DW-1 in his statement stated that the accused asked the respondent
to return the cheque on payment of Rs. 27,000/- in cash in front of him and
later in his cross examination stated that he was not told about any cheque by
the appellant.
In the backdrop of the above discussion, I feel that the trial court did not commit any error in holding appellant guilty for offence committed under Section 138 Negotiable Instruments Act.In view of the above discussion, the judgment dated 10.11.2003 and order of sentence dated 12.11.2003 imposing fine of Rs. 40,000/- and in default of
payment of fine to suffer R.I. for 6 months is upheld.
Appeal dismissed.
December 20, 2008 KAILASH GAMBHIR
rkr JUDGE
