IN THE COURT OF SH [ENTITY], CIVIL JUDGE02, NEW DELHI DISTRICT PATIALA HOUSE COURT, NEW DELHI [CASE NUMBER] [CASE NUMBER] Date of Institution of the Complaint : 04.12.2009 Name of Complainant : Flamering Machines & Tools Z52, Okhla Industrial Area Ph.II, New Delhi110020 Name, parentage and address of the accused : 1. M/s [ENTITY] Through its Authorised Signatory [ENTITY] 2. [ENTITY] Authorised Signatory of M/s Nutech ` Industries, C34, Sector 63, Noida 201301, Registered office at A56, JangpuraB, New Delhi Offence Complained of : U/[SECTION] of [ACT] Offence Proved : Yes. Plea of the Accused in her examination. : Cheques was given as security cheques and machine not delivered. Date of Reservation of Order : 16.11.2013 Date of Order : 28.01.2014. Final Order : Convicted. Police Station : Okhla Industrial Area [CASE NUMBER] , M/s [PRECEDENT] [ENTITY] & Anr. Page 1 of 19 JUDGMENT
1. It is the case of complainant that complainant firm deals with the manufacture and sale of chillers and the accused no.2 [ENTITY] being the CEO and authorised signatory of accused no.1 has been dealing and negotiating in respect of sales and purchase of different types of chillers. On 15.04.2009 the accused no.2 placed an oral order to the complainant on behalf of accused no.1, for the purchase of a chiller40 TR ( complete) for a total consideration of Rs. 5,93,978/ and being the authorised signatory of accused no.1, accused no.2 has also issued two cheque bearing no. 252327 dated 16.04.2009 for a sum of Rs. 1,93,978/ and 252328 dated 15.04.2009 for a sum of Rs. 4,00,000/ favour of the complainant towards the cost of the above mentioned machine. It was also agreed that cheque bearing no. 252328 would be encashed before the delivery of the impugned machine and cheque bearing no. 252327 would be encashed after the delivery of the impugned machine. The impugned machine was delivered on 21.04.2009 vide invoice no.001 dated 21.04.2009 and same was duly received by accused through one Mr. [ENTITY]. It is further alleged that as per agreement between the parties, the complainant presented the cheque bearing no. 252327 dated 16.04.2009 for a sum of Rs. 1,93,978/ for encashment , the same was returned unpaid/dishonoured for the reason 'payment stopped by attachment order'. The complainant got issued legal notice dt. 20.10.2009 and despite receipt of legal notice the accused failed to make payment of the cheque amount and, hence, committed an offence U/[SECTION] [ACT].
2. The complainant filed his presummoning evidence through Sh. [ENTITY] as CW1 by way of affidavit Ex. CW1/A and relied upon the documents Ex.
CW1/1 to Ex. CW1/8 which are as follows: (1) Ex. CW1/1 is original impugned cheque. (2) Ex. CW1/2 is return Memo. (3) Ex. CW1/3 is legal demand notice. (4) Ex. CW1/4 is postal receipt. (5) Ex. CW1/5 fax sending receipt . (6) Ex. CW1/6 Email report. (7) Ex. CW1/7 is reply dated 12.11.2009 and (8) Ex. CW1/8 is present complaint. Bail bond and Notice
3. The court took cognizance of the offence U/[SECTION] of [ACT] and issued process to the accused. The accused put in appearance and was admitted to court bail . Notice u/[SECTION] [ACT] was given to the accused to which the accused pleaded not guilty and claimed trial. He also stated that impugned cheque is without any consideration and complainant misused the cheque. Thereafter, an opportunity was granted to accused to file application under [SECTION] of the [ACT]. However, accused has not preferred any application under [SECTION] of the [ACT] and matter was listed for defence evidence.
Substance of Defence Evidence
4. Accused examined Sh. [ENTITY] as DW1 who deposed that he has been working in the accused company for last 8 years. He further stated that invoice dated 21.04.2009 did not bear his signatures. He also placed on record Ex. DW1/1 and stated that he has not received the impugned machine.
5. In his crossexamination he stated that the office of the accused company is situated at C34, Sector 63, Noida and there is also sister concern of accused company in the name of Dry Cool System( 1) Pvt ltd. He further admitted that document Ex. DW1/X1 belongs to him which is his visiting card as a purchase officer of the above mentioned sister concern of accused company and his name is written as [ENTITY] in Ex. DW1/X1. He denied that on 21.04.2009 he went to the factory of complainant to receive impugned machine and has signed the invoice and handed over his visiting card Ex. DW1/X1 to complainant. He also placed on record copy of his pan card vide Ex. DW1/X2. He also stated that document of accused firm bearing his signature was pertaining to year 2009 and his pan card was prepared in the year 2010.
6. Accused no. 2. [ENTITY] examined himself as DW2 in his defence and stated that complainant was known to him since 2007 and in the year 2009 he had placed an order for supply of Chiller Heat exchanger machine for which he had issued the impugned cheque Ex. CW1/1 as a security but the complainant did not deliver the same. On seeing the delay on part of complainant he requested complainant to refund his amount and instructed his bank to stop the payment in August 2009. He has also placed on record his statement of account vide Ex. DW2/1. He has also received the legal demand notice which was duly replied by him vide Ex. CW1/7. He further deposed that on receipt of documents attached with the complaint he came to know that the impugned machine was received by one [ENTITY] and there is no employee in the name of [ENTITY] in the accused company. DW2 further stated that he has not received any machine from the accused that as per his duly audited balance sheets vide Ex. DW2/2 only a sum of Rs. 421458 is outstanding against the complainant. He has also filed copy of form 38 from the Department of Commercial Taxes for the yer 20092010.
7. In his crossexamination, he has stated that he has no document to show that he has placed order for supply of chiller heat exchanger on complainant for the purpose of trading. He further voluntarily stated that at earlier occasions also no formal order had been placed and the order was placed verbally. He had not sent any letter to the complainant demanding the refund of Rs. 4,00,000/ which was paid by way of cheque and the return of another cheque which was given in blank to the complainant from the month of April 2009 till 12.11.2009 as well as regarding nonsupply of the ordered goods. He further stated had an employee by the name of [ENTITY] who is also known as [ENTITY] and he was also having his visiting cards wherein he has mentioned himself as the purchase officer of accused company M/s [ENTITY] as well as of M/s Drycool Systems India Pvt. Ltd. He further could not tell whether the signatures appearing on Ex. DW1/1 are of [ENTITY] or [ENTITY]
8. In his further crossexamination he could not tell whether the balance sheet Ex. DW2/2 has been prepared after receipt of summons of from the Court or not. He further admitted that date is not mentioned in the balance sheet for the entry of Rs. 4,21,458/. He further admitted that document mark A i.e return of sales tax and commercial tax has been filed by him to the department. He further admitted the issuance of document mark X by him. He further could not recall from where he had purchased the compressor which was installed in the chilling plant and also whether the same was Indian or imported. He further voluntarily stated that 80 per cent compressors were imported. He also could not tell that the above mentioned compressor installed in the chilling plant was purchased by the complainant from M/s Hand Bell Machinery co Ltd. Taiwan. He also denied that he had issued two cheques bearing no. 252327 dated 16.04.2009 for a sum of Rs. 193978/ and cheque bearing no. 252328 dated 15.04.2009 for a sum of Rs. 4 lakhs in favour of the complainant towards cost of the inpugned machine or that same was delivered to him on 21.04.2009 vide invoice no. 001 and also same was received by employee Mr. [ENTITY] from the factory premises of the complainant. He has also denied that the impugned cheque was issued against the existing liability. He further voluntarily stated that impugned cheque was given blank in all respect as a security deposit. Accused has never received the chillar vide invoice no. 001 dated 21.04.2009 and the impugned cheque was stopped when the material was not received to avoid the misuse.
9. Accused also produced one Sh. [ENTITY], clerk, Bank of India, as DW3 who produced the attested copy of statement of account of M/s [ENTITY] from 01.10.2009 to 13.10.2009. Same is Ex. DW3/A.
10. In his cross examined he stated that the cheque bearing no.252327 of Rs. 1,93,978/ was returned with reasons 'payment stopped'. He further admitted that the account holder had withdrawn a sum of Rs. 2,00,000/ prior to the presentation of this cheque and only a sum of Rs. 65,811.48/ remained in balance in the said account. He further admitted that for stopping payment of any cheque written instructions from the drawer is required. However, he did not know whether any written instructions were there with the bank to stop payment of the above mentioned cheque on the relevant day or not.
11. Accused also produced Sh. [ENTITY], working as Handwriting Expert and examined him as DW4 (Inadvertently written as DW3 in case file). He got examined the disputed signature and writing alleged to be of [ENTITY] on an invoice Ex. DW1/1 and compared the same with the specimen writing and signatures on specimen sheet EX DW3/1 ( colly. Running into 2 pages) with the help of necessary magnifying lenses.
12. After examination and comparison of the disputed and specimen writing and signature from the original documents as mentioned above, DW4 (Inadvertently written as DW3 in case file) reached to the conclusion that the disputed writing and signatures on an invoice Ex. DW1/1 is not written by one and the same person [ENTITY] whose specimen writing and signatures are on specimen sheet Ex DW3/1. The reason and observations for the same are that the specimen signatures and handwriting is written with wrist movement with medium speed of writing whereas disputed writing and signature is written with wrist cum forearm movement with medium to fast speed of writing as the specimen are having narrow and angular formation letter and stroke having vertical pen scope whereas disputed are having smooth and curved stroke having extended pen scope. The executional mode of formation of letter and stroke in between the disputed and specimen along with detailed design, way and place of joining the stroke, nature of curves and angles, relative size and relative spacing are also found different having different range of natural variations with regard to size, curves, angles and spacing. It was further averred by DW 4 (Inadvertently written as DW3 in case file) that there is a double staff stroke in the formation of letter 'R' which is following with its body part having an open or blind loop, or retracing at the elbow of body part in the specimen writing wherein there is an independent formation of staff stroke followed by a broad circular formation in the body part having angular formation at its elbow. There is an elongated loop in the formation of all the letters 'e' having angular cup in the specimen writing wherein there is a horizontal loop and broad curved cup in the disputed writing. Letter 'v' is formed as a combination of two slanting independent stroke in the disputed writing wherein it is formed with single pen operation in the specimen writing. Letter 'd' is having a circular body part and vertical staff stroke in the disputed writing but it is entirely different in the specimen writing wherein body part is small or angular and formed as a cross loop with the staff stroke. Both upper and lower curved part of letter 'S' are smoothly curved in the disputed but in a specimen it is angular. There is a direct commencement in letter 'h' in the disputed writing having a smooth hump in the disputed writing wherein there is a hook at the initial start and angular and narrow hump in the specimen writing. There is a simple vertical stroke representing letter 'l' in the disputed writing but in the specimen it is written in copy book style. There is a smooth cup in letter 'u' in the disputed writing wherein there is an angular cup in the specimen writing. There is a categorical hook at the initial start of digit 2 in the specimen writing wherein hook is merging with the body part in the disputed writing. The terminal stroke of digit 2 is double curved stroke in the specimen but it is single curved stroke in the disputed. There are some similarity in the formation of digit '1' and '0' which are occasional only as other writing characteristics are different. Cup of digit '4' is smooth in the disputed but angular in specimen. Angular elbow as observed in digit '2' of year 2009 in the disputed writing is not available in the specimen. Oval of digit is making a smooth angular joining with a vertical stroke in the disputed but it is making a narrow angular formation with or without some replacement in the specimen.
13. In his cross examination DW4 (Inadvertently written as DW3 in case file) admitted that he met the accused before his examination in chief and no detailed discussion was done in that meeting. He was called by the accused to give give examination in chief w.r.t the signatures in the present case and he was not appraised of the facts of the case by the accused.
14. He further stated that he has no such degree or certificate which exclusively declares him as handwriting expert. However, I has requisite skill, knowledge and experience about the science of handwriting comparison. He further admitted that forensic science is a broad term and he has not enclosed any certificate to show that I have obtained practical training for about two years. However, he can produce the same. He also admitted that chances of error are more in the handwriting examination in comparison to the finger print examination. He also could not recollect of those cases wherein his opinion was different from any other expert in the same case. However, there had been occasions when the opinion given by him was different from the opinion given by the another expert on the same handwriting. He further replied that there is no scientific instrument known as document expert so no reply can be given in this regard, however, he admitted that magnifying glasses and microscope are necessary instruments for an handwriting/document expert. However, VSCIV is not a necessary instrument. DW4 (Inadvertently written as DW3 in case file) also deposed that he has prepared rough notes at the time of examination but did not submit the same in the Court and also replied that there may be some occasional similarities in handwriting/signature of two different persons but in toto the handwriting/signature of two different person shall never match. A person may be successful or may not be successful in disguising his specimen handwriting or signatures.
15. DW4 (Inadvertently written as DW3 in case file) further denied that specimen handwriting/signature furnished by [ENTITY] in the present case have been distorted/disguised by the writer to baffle the disputed signatures/writing on document Ex.DW1/1.
Judgment and Reasons
16. Final arguments of both the parties were heard at length.
17. It has been observed by the Hon'ble Supreme Court in [PRECEDENT], that: ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in [SECTION] of [ACT] have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by [SECTION] of the Act.
18. It was further observed that the test to be applied in cases U/[SECTION] [ACT] was one of preponderance of probabilities, which has been held in various other case law as well. In [PRECEDENT] (supra) it has been observed as follows:
1. 2010 [ENTITY] ([CASE NUMBER] We are in agreement with the respondent claimant that the presumption mandated by [SECTION] of the Act does indeed include the existence of the legally enforceable debt or liability this is of course, in the nature of a rebuttable presumption and it is open to accused to raise a defence where in the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favors the complainant it is a settled position that when and accused has to rebut the presumption U/[SECTION], the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can failed. The accused can rely on materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
19. Further in [PRECEDENT] it has been observed as follows: The accused in a trial U/[SECTION] [ACT] has two options. He can either show that consideration 2 [PRECEDENT] and debt did not exist or that under the particular circumstances of the case the non existence of consideration or debt is so probable that a prudent man ought to suppose that no consideration or debt existed. To rebut the statutory presumption the accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial.
20. It has further been observed by the Hon'ble Punjab & Haryana High Court in the judgment of [PRECEDENT], that it is not required that the accused must lead positive evidence to rebut presumption and presumption can be rebutted from circumstances on record and hence, not bringing on record any defence evidence by the accused does not cause prejudice to the accused.
21. For the purpose of reaching a decision in the present matter, it is thus important to first decide whether the complainant has been able to satisfy the ingredients as enumerated under [SECTION] [ACT] and if yes, then decide if the accused has been able to rebut the statutory presumption contemplated by [SECTION] of [ACT] on the basis of preponderance of probabilities.
22. The essential ingredients which need be proved for constituting the offence under [SECTION] of [ACT] were discussed in the case [PRECEDENT]. In view of the judgment and also the provisions U/[SECTION] [ACT], an offence U/[SECTION] of [ACT] is committed when a person draws a cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, and that cheque is returned by the bank unpaid due to "insufficient funds" or "exceeds arrangements" or any other such reasons. Further, as per proviso to [SECTION] of [ACT], the drawer shall be liable only if;
A) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of validity, whichever is earlier;
B) the holder of the cheque makes a demand for the payment of the cheque amount by giving a legal notice to the drawer within 30 days of receipt of information by him from the bank regarding dishonor;
C) the drawer of the cheque fails to make the payment to the drawee within 15 days from receipt of legal notice.
23. On perusal of the file it is seen that all the cheques bearing no. 252327 dated 16.04.2009 and dishonored when presented within the period of validity; legal notice sent dt.20.10.2009 i.e., within 30 days of receipt of return memo; and complaint within 30 days of sending of legal notice and further 15 days of non receipt of payment thereafter. Thus the complainant has filed sufficient evidence to raise the presumption u/[SECTION] [ACT].
24. All the necessary ingredients for the offence have been made out against the accused with the aid and assistance of the presumption raised under the Act. So, the complainant had discharged, the initial burden of proving the stage beyond reasonable doubt and now the onus shifted upon the accused to come up with a probable defends and rebut the presumption raised against him and put the burden back on the complainant.
25. Accused has raised the defence, that the impugned cheque in question was given as security cheque and there is no legal liability as complainant has not delivered the machine as ordered.
26. It is submitted by ld. Counsel for accused that the impugned cheque in question was issued as security cheque and accused has placed an order for supply of Chiller Heat Exchanger and given an advance of Rs. 4 lakhs by way of one cheque and issed one another cheque which is impugned cheque in question as security. Complainant has not delivered the ordered goods and accused requested the complainant to refund his amount and when the complainant paid no heed to the request of the accused , accused stopped payment of the impugned cheque in question. It is also submitted by ld. Counsel for accused that impugned cheque in question was given as security cheque is substantiated from the fact that signatures and other details are in different ink which clearly suggest that complainant has filled the cheque as per his convenience and presented the same before the bank despite the fact that the ordered goods have not been supplied to him. It is further submitted by ld. Counsel for accused that signatures on documents Ex. DW1/1 is forged and fabricated document and has been prepared by the complainant just to extract illegal money from the accused. It is further submitted by ld. Counsel for accused that signatures on Ex. DW1/1 are not of the employee of the accused as claimed by the complainant and the same is substantiated from the fact that the alleged employee and the handwriting expert has denied the signatures.
27. Per contra it is submitted by ld. Counsel for complainant that accused has placed an oral order for the supply of chiller 40 TR ( complete) on 15.04.2009 and the total consideration of the transaction was 5,93,978/ and made the payment by way of two cheques; one cheque dated 15.04.2009 for the sum of Rs. 4 lakhs was duly encashed and other cheque which is the impugned cheque in question for the sum of Rs. 1,93,978/ has dishonoured when the same was presented before the bank for encashment despite the fact that ordered machine was duly delivered to the accused. It is further submitted by ld. Counsel for complainant that goods were received by one of the employee of the accused with acknowledgment which is reflected in document Ex.DW1/1.
28. After hearing the submissions of both the parties and after going through the evidence adduced and documents filed by both the parties, it is observed by the court that both the parties had made contradictory statement w.r.t placing of order. It is averred by the complainant that accused placed an order for supply of 40 TR Chiller ( complete). Per contra it is submitted by accused that order was placed for chiller heat exchanger. Neither of the parties has filed any document w.r.t placing of the order.
29. After going through evidence of both the parties it came to the fore that it is admitted that the order between the parties usually placed orally and this order was also placed orally. It is further averred by ld. Counsel for accused that he neither received the chiller heat exchanger which was ordered by the accused nor he has received any other machine as claimed by the complainant. It is averred by the complainant that chiller 40 TR ( complete) for a total amount of Rs. 5,93,978/ was delivered to the accused and delivery was taken by one of the employee of the accused namely [ENTITY] with due acknowledgment on the copy of the invoice and accused has deliberately denied the fact that no machinery was taken by or on behalf of accused from the complainant. Accused produced his employee [ENTITY] as DW1 in his defence and DW1 stated that he has never received the chiller 40 TR ( complete) or any other machine as mentioned in the complaint and invoice dated 21.04.09 Ex. DW1/1 does not bear his signature. Accused also produced one handwriting expert as DW4 (Inadvertently written as DW3 in case file). He also submitted that the signature does not belongs to [ENTITY] employee of the accused. Now at this staged the question that has to be decided is that whether the machinery was delivered by the complainant to the accused or not; as it is only the complainant who has filed the copy of the invoice with the acknowledgment from the employee of the accused, though the same has been denied by the employee of the accused, yet accused has not filed any other documentary evidence to prove that the machinery as alleged have not been supplied to the accused. Now this question has to be decided by way of circumstantial evidences. It is observed by the Court that admittedly an order was placed and in accordance with the complainant the supply of Chillar 40 T.R. (Complete) was duly made and in accordance with the accused no machine was delivered to him. No documentary evidence has been filed by both the parties in this behalf to substantiate their claim. It is admitted fact that a payment of Rs. 4 lakhs by way of cheque bearing no. 252328 dated 15.4.2009 was made by the accused to the complainant which was duly encashed and accused also handed over another cheque bearing no. 252327 dated 16.4.2009 for the sum of Rs. 1,93,978/. As per the complainant the machine was duly delivered on 21.4.2009 vide invoice no. 001 dated 21.4.2009 and the same was duly received by the accused person through Mr. [ENTITY]. The fact of delivery of the machine has been denied by the accused. However, accused has not filed any document or any other proof to substantiate his claim that the machinery was not delivered to him or that he has made communication in this behalf with the complainant to remind the complainant or press that the machine has to be supplied or the same has not been supplied.
30. It is also pertinent to mention here that the impugned cheque in question was presented by the complainant before the Bank for the encashment in the month of October, 2009 i.e. almost six months after the date when the order was placed and the advance payment of Rs. 4 lakhs was made by the accused to the complainant. It is very strange that the accused has not made any communication with the complainant for the recovery of substantial sum of Rs. 4 lakhs. It is also observed by the Court that it is averred by the accused that he had stopped the payment with respect to the impugned cheque in question in the month of August, 2009 itself, however, the same has not been substantiated by the averments made by the Bank Official as DW3. It was averred by the Bank Official as DW3 that the he is not aware whether any written instructions were there with the bank to stop the payment with respect to the impugned cheque in question and the accused has withdrawn a sum of Rs. 2 lakhs prior to the presentation of the impugned cheque in question and further submitted that after withdrawal of Rs. 2 lakhs only a sum of Rs. 65,811.48/ remained in the account which was not sufficient to honour the impugned cheque in question. It is also observed by the Court that though the signature on the invoice exhibited as DW 1/1 was denied by the DW1 yet he has not produced any document which pertains to date prior to the date of the invoice on which the signatures have been allegedly affixed by the DW 1. The only document which has been produced to corroborate signatures is the copy of the PAN card exhibited as Ex. DW 1/X2 and the same was admittedly got prepared/executed after the date on which the invoice exhibited as Ex. DW 1/1 was executed. It is also pertinent to mention here that despite giving reasonable opportunities DW 1 has not produced any document which bears his signature signed by him in the year 2009 or any year prior to year 2009. It is also pertinent to mention here that DW 4 (inadvertently mentioned as DW 3 in the judicial file) also supported the version of DW 1. However, it is trite now that evidence of a private handwriting expert has to be put on the same footing as the evidence of an interested witness and the same cannot be relied upon unless and otherwise same is corroborated or supported by other facts. In the present case DW 1 himself has not produced any document which have been signed by him on or before year 2009 despite the fact that he undertook to produce the same before the Court, which gives an adverse inference with respect to the avernments of DW1. Circumstantial evidence as discussed above do not support the version of accused.
Conclusion
31. On considering the entire evidence and after keeping in mind the above mentioned discussions, the court found that accused has not come with a cogent probable defence; the accused has miserably failed to inspire the confidence of the Court. The accused has categorically admitted the fact of the dishonour of the cheque and receipt of the legal notice has been proved as mentioned above. It is amply clear after the above mentioned discussion the impugned cheque was issued against the payment of remaining sum /amount against the machinery received by the accused. Admittedly a sum of Rs. 4,00,000/ have already been paid by accused to the complainant toward payment of the machine. The part payment/remaining payment was to be made by way of impugned cheque and liability is the legally enforceable liability.
32. On preponderance of probabilities, the accused has not been able to rebut the presumption under [SECTION] of [ACT].
Decision
33. In the considered opinion of the Court, in view of the legal provisions and case law discussed, the accused persons are held guilty for the offence u/[SECTION] [ACT] and is accordingly, convicted.
Announced in open Court Place: New Delhi Date: 28.01.2014 ([ENTITY]) [PRECEDENT]
CC NO. 676/1/12 M/s Flamering Machines vs. M/s [ENTITY] & tools 30.01.2014 Present: Ld. Counsel for complainant along with AR for complainant.
Ld. Counsel for convict along with convict no.2 in person. Convict no.1 is being represented by convict no.2.
Arguments on sentence heard.
Vide my separate order on sentence, the convict no.2 is hereby sentenced to simple imprisonment for a period of two months and convict is also sentenced and convict no.1 and 2 are sentenced to pay a compensation of Rs. 2,65,000/ to the complainant within one month from today, i.e on or before 03.03.2014, in default the convict will undergo Simple Imprisonment for a period of one month.
At this stage, ld. Counsel for accused moved an application u/[SECTION] [ACT] for suspension of the sentence on behalf of accused /convict as he intends to present an appeal. Same is perused. Submissions heard.
In view of the submissions and the averments made in the application, the sentence is suspended till 03.03.2014. Accused/convict no.2 is admitted to court bail on furnishing a bail bond and surety bond in the sum of Rs.20,000/ Bail bonds and surety bond furnished and are accepted till 03.03.2014.
Put up on 03.03.2014 at 2 PM for apprising the status of appeal, if any/execution of sentence.
Copy of judgment, order on sentence as well as this order be given dasti to Ld. Counsel for convict free of cost.
([ENTITY]) CJ02/ NDD/PHC/New Delhi 30.01.2014 IN THE COURT OF SH [ENTITY], CIVIL JUDGE 02, NEW DELHI DISTRICT PATIALA HOUSE COURT, NEW DELHI [CASE NUMBER] [CASE NUMBER] [ENTITY] New Delhi110020 Versus M/s [ENTITY] Through its Authorised Signatory [ENTITY].
2. [ENTITY] Authorised Signatory of M/s [ENTITY], C34, Sector 63, Noida 201301, Registered office at A56, JangpuraB, New Delhi Offence U/[SECTION] of [ACT] Date of Order : 28.01.2014.
Final Order : Convicted. Police Station : Okhla Industrial Area ORDER ON SENTENCE 30.01.2014 Present: Ld. Counsel for complainant along with AR for complainant.
Ld. Counsel for convict along with convict no.2 in person. Convict no.1 is being represented by convict no.2.
Ld. Counsel for complainant states that the convict has not adhered to their commitment of paying the money within the time frame despite the fact that the machinery was delivered to him. He further submitted that matter is pending since the year 2009 and he should be punished as per law. He further states that the prescribed punishment is for a term of two years and the fine is double the amount of impugned cheque.
On the other hand, Ld. Counsel for convicts states that the present matter pertains to a commercial transaction and convict is a first time offender. It is further submitted by the Ld. Counsel for the convict that he is the sole bread earner for his family and a lenient view may be taken. Submissions of both the parties heard.
Almost 4 years have elapsed since the liability of Rs.1,93,978/ accrued and the same has yet not been paid.
Considering, the above said submissions and keeping in view the terms of judgment pronounced, the liability of the convict would be equivalent to the total amount as mentioned in the cheques in question i.e Rs.1,93,978/. This amount should be returned to the complainant along with loss of interest that he has suffered. Calculating at a simple rate of interest @ 9 per cent per annum, the amount of interest come to approximately Rs. 70,000/. It is true that the object of [SECTION] [ACT] is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noted that when this offence was inserted in the statute in 1988, it provided for imprisonment up to 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. Accordingly, the convict no.2 is hereby sentenced to simple imprisonment for a period of two months and convict no.1 and 2 are sentenced, to pay a compensation of Rs. 2,65,000/ to the complainant within one month from today, i.e on or before 03.03.2014, in default the convict will undergo Simple Imprisonment for a period of one month.
Copy of this order on sentence be given dasti to the convict free of cost.
Announced in open Court on 30th, January,2014 ([ENTITY]) [PRECEDENT] CC. No. 676/1/12
Flamering Machines & Tools Vs. M/s [ENTITY] & Ors.
28.01.2014 Present: Ld. Counsel for complainant along with AR for the complainant in person.
Accused in person.
Vide my separate judgment announced in open Court today, the accused is held guilty for the offence u/[SECTION] [ACT] and is accordingly, convicted.
Put up for arguments on sentence on 30.01.2014 at 02.00 pm. ([ENTITY]) CJ03/ NDD/PHC/New Delhi/28.01.2014