Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SHRI KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
CA No. 223/2024
CNR No. DLSH01-006066-2024
PURAN CHAND
S/o Sh. Het Ram,
R/o A-4701650, Gali No. 10,
Mandoli Extension, Delhi. ...Appellant
Vs.
SH. SONU,
S/o Sh. Nate Ram,
R/o A-1/230, Nand Nagri, Delhi.
...Respondent
Present during the arguments:-
Sh. Uday Vir Singh, Ld. Amicus Curiae for
appellant along with appellant.
Sh. S.K. Jha , Ld. Counsel for respondent along with
respondent.
JUDGMENT
1. The present appeal has been filed against the
impugned judgment dated 24.08.2024 and order on sentence
dated 28.08.2024 passed by Ld. JMFC (NI Act), Shahdara
Karkardooma Courts, Delhi vide which appellant was convicted
and sentenced to undergo SI for a period of 9 months and
directed to pay the fine of Rs. 2,55,289/- to the complainant as
compensation within one month and in default, shall undergo SI
for 1 month.
2. It is submitted by Ld. Amicus Curiae for the
appellant that the said judgment and order are against the law and
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 1 of 18
-- 1 of 18 --
facts and the same are not sustainable in the eyes of law and are
based on conjecture and surmises and hence liable to be set aside.
3. That the Ld. Trial Court erred in finding that there is
no documentary evidence of any loan of Rs.3,68,000/- given by
respondent to the appellant, as in plea of defence the appellant
stated that he had not taken any loan from the appellant as
respondent convinced him to provide a loan of sum of Rs.20
Lacs from his relative’s company and had taken two cheques, a
pronote and an agreement, but the appellant did not get any loan
sanctioned. The Ld. Trial Court erred in trial in the eyes of law as
the appellant was not given the opportunity to lead DE.
4. That the Ld. Trial court did not consider the fact that
the appellant did not receive any legal demand notice where he
resided i.e. A-4701650, Gali No. 10. Mandoli Extension, Delhi
and wrongly considered that the appellant admitted his signatures
on the cheque given for the loan and alleged cheque was given
by the appellant to the respondent when he convinced him to
provide a loan of Rs.20 lacs from his relative’s company, but the
loan was never sanctioned and appellant had not filled up the
particulars of cheque.
5. That the Ld. Trial Court did not consider the fact
that witness no. 1 i.e. Sh. Kishor S/o Rajeev and witness no. 2
Monty Aggarwal S/o Sh. Bal Kishan were not examined to prove
the Friendly Loan Agreement, Ex-CW 1/1. Hence, the friendly
loan agreement dated 18.09.2019 remained unproved.
6. It is submitted by Ld. Counsel for the
respondent/complainant that both judgment dated 24.08.2024 and
order on sentence dated 28.08.2024 have been passed by Ld.
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 2 of 18
-- 2 of 18 --
Trial Court after considering the material on record and
according to prevailing law and are judicially correct and sound.
It is argued that he filed the complaint after the cheque issued by
the appellant in discharge of his legal liability got dishonoured
for the reasons ‘Funds Insufficient’ and the appellant and the
complainant were friends and in September 2019, the appellant
approached the complainant for a friendly loan due to financial
crisis. The loan agreement was executed betweeen the appellant
and complainant and his friend Surender. The complainant
arranged the loan of Rs. 3,68,000/- and gave it to the appellant,
who assured to return it within a period of 12 months i.e. till
September 2020 and issued the cheuqe in question dated
02.09.2020 for the amount of Rs. 1,88,000/-, but it got
dishonoured when presented by the respondent and despite
service of legal notice, appellant did not pay the said amount.
7. Ld. Counsel for the respondent/complainant has
further argued that the complainant proved his case against
accused/appellant beyond reasonable doubt and Ld. Trial Court
has passed a judicious order after considering all the materials on
record including the evidence and the documents relied upon in
the complaint, which were duly proved in Ld. Trial Court and
appellant failed to rebut the presumptions u/s 118(a) and 139 NI
Act and he had taken the friendly loan of Rs. 3,68,000/- from the
complainant and issued the aforesaid cheque dated 02.09.2020
for a sum of Rs. 1,88,000/- in discharge of legally recoverable
debt. No reply to the said legal notice was filed by the appellant.
The said cheque was issued as security cheque, but it was issued
for the loan taken by appellant from complainant and was legally
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 3 of 18
-- 3 of 18 --
recoverable debt. No notice/complaint was given to the Bank or
Police against the complainant and no legal notice was given
regarding misuse of cheque. The accused had admitted his
signature on the cheque and failed to rebut any of the
presumptions and his financial capacity and source was not
questioned during trial.
8. I have heard the rival contentions and perused the
record.
9. The present complaint was filed by complainant
Sonu u/s 138 NI Act against appellant Puran Chand, wherein it
was alleged that complainant and appellant were having friendly
relations and in the month of September 2019, the accused was
suffering from financial crisis and requested the complainant for
a friendly loan of Rs.3,68,000/- for his personal use and the
complainant agreed and contacted his associate namely Surender
Kumar Singh and both complainant and his friend jointly gave
Rs.3,68,000/- to the accused and an agreement was also signed
amongst them and as per agreement, the accused handed over
two cheques, one in the name of complainant vide Cheque No.
000033 of RBL Bank amounting to Rs.1,88,000/- and another
cheque in the name of Surender Kumar vide cheque No. 000034
of RBL Bank amounting to Rs.1,80,000/-.
10. It is further submitted that due to the financial need
and requirement of the accused, the complainant and accused had
entered into an agreement dated 18.09.2019 executed between
them, which was duly notarized by the Notary Public Delhi.
Thereafter, on the terms and conditions of the said agreement, the
complainant being the friend of the accused, acceded his request
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 4 of 18
-- 4 of 18 --
and advanced him a friendly loan of Rs.3,68,000/- and appellant
assured to return the same within a period of 12 months i.e. till
September 2020. It is further submitted that to fulfill his liability,
the accused had issued a cheque bearing no. 000033 dated
02.09.2020 drawn on RBL Bank, Capitol Point Branch, Baba
Kharak Singh Marg, Connaught Place, New Delhi and at the time
of issuance of cheque, the accused had assured the complainant
that the same would be honored on presentation.
11. Complainant presented said cheque No. 000033
dated 02.09.2020 amounting to Rs.1,88,000/- in his bank i.e.
Bank of Baroda, Mandoli, Delhi, but the same was dishonored
due to the reason “FUNDS INSUFFICIENT”. Then, the
complainant immediately contacted the accused and informed
about the same, who again assured the complainant and promised
him that the same cheque would be encased, if presented again
after two weeks. The accused again presented the said cheque,
but it dishonoured again with same reason. Then, the
complainant immediately contacted the accused, but he avoided
him on different pretexts.
12. That from the endorsement, the complainant came to
know that the accused had issued fake cheques to him only to
cheat him and from the above said conduct of the accused, it was
crystal clear that he had deliberately withheld the payment under
the said cheques and he had no intention to pay back the amount
of Rs.3,68,000/- to the complainant since beginning. The conduct
of the accused shows that he had dishonest intention and had
deliberately caused wrongful loss to the complainant and
wrongful gain to himself. Later on, the complainant issued a
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 5 of 18
-- 5 of 18 --
statutory notice dated 15.10.2020 through speed post to the
accused calling upon him to pay the amount of the aforesaid
cheque. The said notice was sent at the last known correct
address of the accused and it was duly served upon the accused,
but despite service, he failed to make the payment of the cheque
amount of the complainant within the statutory period of 15 days
and as such, has committed an offence under Section 138 of N I
Act.
13. The Ld. Trial Court took cognizance of the offence
and summoned the accused on 11.12.2020, who appeared in
person on 05.03.2021. The notice u/s 251 Cr.P.C. was framed on
01.08.2023 against accused and he admitted his signature on the
cheque and also admitted his address, but denied receipt of legal
notice and that he had not taken any loan and cheques were taken
on the pretext of providing loan of Rs. 20,000,00/-, but no loan
was sanctioned and cheque was misused.
The appellant also admitted the signing of loan
agreement and he also admitted the returning memos of the bank,
as mentioned in the order dated 01.08.2023 in the proceedings
u/s 294 Cr.P.C.
14. The complainant examined himself as CW1 and led
evidence by way of affidavit, Ex.CW1/A reiterating the facts of
complaint and proved the following documents/exhibits:
Documentary Evidence
Ex.C1 (colly)
(Ex. CW1/1)
Friendly Loan Agreement dated 18.09.2019
Ex.CW2 Cheque bearing No. 000033 dated 02.09.2020 of Rs.
1,88,000/-
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 6 of 18
-- 6 of 18 --
Ex.C3 (Ex. CW1/3) Cheque Returning Memo dated 05.09.2020
Ex.C4 (Ex. CW1/4) Cheque Returning Memo dated 25.09.2020
Ex.C5 (Ex. CW1/5) Legal demand notice dated 15.10.2020
Ex.C6 (Ex. CW1/6) Postal receipt
Ex.C7 (Ex. CW1/7) Tracking Report
15. CW1 tendered his evidence by way of affidavit, and
relied upon the above documents, Ex.CW1 to Ex.CW7 and
reiterated the facts of the complaint.
16. The main contentions of the appellant in the present
appeal are that:
(i) That the cheque amount was not given by
complainant to the appellant and he had not taken any loan.
(ii) That the cheque in question was given to the
complainant as he had promised to pay the loan of Rs. 20 Lac
from his relative’s company, but did not pay.
(iii) That the cheque in question was not filled by
the accused and he did not receive any legal demand notice and
he has no legal liability to pay any amount to complainant.
17. Section 138 NI Act: Dishonour of cheque for
insufficiency, etc. of funds in the accounts:
Where any cheque drawn
by a person 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, is returned by
the bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an offence
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 7 of 18
-- 7 of 18 --
and shall, without prejudice to any other provisions of this Act, be punished
with imprisonment for [a term with may be extended to two years] or with
fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless-
(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 its
validity, whichever is earlier,
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said amount of money
by giving a notice in writing, to the drawer of the cheque [within thirty
days] of the receipt of information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of
the said amount of money to the payee or, as the case may be, to the holder
in due course of the cheque, within fifteen days of the receipt of the said
notice.
18. The application of appellant/accused u/s 145(2) NI
Act was allowed on 01.08.2023 and he was given opportunity to
cross-examine the complainant/CW1 and in the said application,
he denied the contents of complaint, but admitted that he had
issued the blank cheque, but not in favour of complainant and on
the pretext of providing loan from his known company,
complainant had taken two cheques including agreement and
pronote for security.
19. During his cross-examination, CW1 stated that he
was working as Goldsmith and earlier he was running a business
of plastic utensils and his last ITR was of Rs. 5 Lacs and he did
not remember, if the money given to accused was shown in ITR
and he vouched that he could produce the ITR, if required and
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 8 of 18
-- 8 of 18 --
that cheque was given as security by accused stating that it would
be encashable after 12 months and he denied the suggestion that
it was not encashable after 12 months and no money was taken
by accused from complainant and he also denied that he had
misused the cheque.
20. The accused at the time of framing of notice had not
taken the defence that no agreement was executed between him
and complainant and he has not questioned the execution of said
agreement, Ex.C1 vide which, it was agreed between accused
and complainant and one Surender Kumar Singh that accused
had taken friendly loan of Rs. 3,68,000/- before the witnesses
from them without interest for a period of 12 months from
18.09.2019 to 17.09.2020 and issued two cheques including the
present one as security. The accused had not disputed his
signature on the same or on the attached pronote, executed by
him, which shows that accused had issued cheques in discharge
of his legal liability to pay the friendly loan amount taken from
complainant and Surender Kumar.
21. The legal notice dated 15.10.2020 was issued by
accused vide Ex.CW1/5, but accused disputed its receipt, but
admitted his address, which was also mentioned in the said legal
notice at the time of framing of notice and complainant also
proved the postal receipt, Ex.CW1/6 and the tracking report,
Ex.CW1/7 was not disputed by the appellant in his SA.
Section 27 of The General Clauses Act, 1897.
27. Meaning of service by post:
Where any Central Act or Regulation made after the
commencement of this Act authorizes or requires any document to be served
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 9 of 18
-- 9 of 18 --
by post, whether the expression serve or either of the expressions give or
send or any other expression is used, then, unless a different intention
appears, the service shall be deemed to be effected by properly addressing,
pre-paying and posting by registered post, a letter containing the document,
and, unless the contrary is proved, to have been effected at the time at which
the letter would be delivered in the ordinary course of post.
22. In
C Niranjan Yadav & D Ravi Kumar 2024 Livelaw
(Kar) 313, Hon’ble Karnataka High Court held that
notice u/s 138
NI Act is valid if sent to last known address of accused and onus is on the
accused to say why he did not receive it and also held as follows:
29. Presumption under the General Clauses Act, 1897, would
go to show that if a person has addressed a registered letter to the last known
address that was known to a particular person, it is deemed to have been
served.
30. Under such circumstances, admission, i.e. obtained in the
cross-examination attributable to the complainant is not that significant
enough to hold that the entire case of the complainant is to be discarded. As
is referred to supra, since the purpose of issuing notice is to save the
bonafide drawer of the cheque, nothing prevented the accused to pay the
money after he appeared before the learned trial Magistrate or at least at the
stage of the appeal, or at least before this Court.
31. Therefore, the arguments put forward on behalf of the
petitioner that improper service of notice should result in dismissal of the
complaint cannot be countenanced in law.
23. The defence of the accused that he did not receive
legal demand notice is without any merits. In
C.C. Alvi Haji V.
Palpetty Muhammad & Anr. (2007) 6 SCC 555, it was held that
in case, drawer of cheque raises an objection that he never received legal
notice, he/she can within 15 days of the receipt of the summons make
payment of cheque amount and in case, he does not do so, he cannot
complain that there was no proper service of legal notice u/s 138 NI Act.
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 10 of 18
-- 10 of 18 --
24. In his SA recorded u/s 313 Cr.P.C. on 01.05.2024,
appellant admitted his signature on the friendly loan agreement,
Ex.CW1/1 and stated that he issued blank cheque, Ex.CW1/2.
Thus, issuance of cheque and execution of loan agreement is not
disputed and he also admitted cheque returning memo,
Ex.CW1/3 and Ex.CW1/4 , legal demand notice, Ex.CW1/5, the
postal receipt, Ex. CW1/6 and tracking report, Ex.CW1/7. Thus,
all these documents stand proved against the accused.
25. The appellant did not examine any witness including
himself in DE nor examined any witness to the said loan
agreement to prove his contention.
26. The documents, Ex.CW1/1 to Ex.CW1/7 are proved
by CW1 in his evidence and also admitted by accused in SA and
nothing has come to doubt about the genuineness of said
documents and testimony of CW1 remained unrebutted.
27. Appellant/accused despite the receipt of legal notice,
Ex.CW1/5, failed to make any payment nor he replied the same,
which also points out his liability towards complainant.
28. There are presumptions under Negotiable
Instruments Act and the relevant ones are as follows:
Section 118 NI Act: Presumption as to negotiable
instruments: Until the contrary is proved, the following
presumption 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;
(b) as to date - that every negotiable instrument bearing a
date was made or drawn on such date;
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 11 of 18
-- 11 of 18 --
(g) that holder is a holder in due course - that the holder of a
negotiable instrument is a holder in due course;
Section 139 NI Act: Presumption in favour of
holder-
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 NI
Act for the discharge, in whole or in part, of any debt or other liability.
29. The onus to prove whether the cheque in question
was issued by the appellant in discharge of his liability in whole
or in part lies on the complainant, but once the issuance of the
cheque is established and the signatures on the cheque is
admitted, then the presumption u/s 139 of NI Act is to be raised
against the accused. The appellant has admitted his signatures on
the said cheque of Rs. 1,88,000/- dated 02.09.2020 issued in the
name of complainant, Ex. CW2 (Ex.CW1/2), but he stated that
he had not filled the particulars therein.
30. Section 4 of Indian Evidence Act:
“Shall presume”:
Whenever it is directed by this Act that
the court shall presume a fact, it shall regard such fact as proved, unless and
until it is disproved.
Section 102 Evidence Act: On whom burden of
proof lies:
The burden of proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on either side.
Illustration
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was
obtained by fraud, which A denies.
In no evidence were given on either side, A would succeed,
as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 12 of 18
-- 12 of 18 --
31. The accused has not disputed his signature on the
cheque and thus, it shall be presumed that the holder of the
cheque received the same for the discharge in whole or in part of
any debt or other liability. The moment, the signature and
issuance of cheque is admitted, the onus shifts on the appellant to
disprove the allegations made against him by the complainant in
the complaint. The usage of word
‘shall’ in Section 118 and 139
NI Act cast a duty on the Court to raise presumption particularly
when the signature on cheque is admitted by the appellant.
32. In case
Kashmir Singh v. Satnam Singh, (Punjab and
Haryana) 2024 (1) R.C.R. (Criminal) 407, Hon’ble P & H High
Court has upheld the conviction of the accused u/s 138 NI Act
passed by Ld. Trial Court and held,
“Para 14. That in the instant case, the petitioner has not
denied his signature on the cheque. His contention is that the contents of the
body of the cheque had been filled up and therefore, the cheque in question
was a forged one. It may be relevant to mention here that once the
signatures on the cheque are admitted, a rebuttable presumption arises that
the said cheque has been issued in the discharge of a legally enforceable
debt. The accused has led absolutely no evidence to rebut the said
presumption either independently or by virtue of the cross examination of
the complainant. In fact the petitioner has been unable to explain as to how
the cheque has come into possession of the complainant and as to what was
the enmity between the parties because of which he (petitioner) had been
falsely implicated. It is also relevant to mention here that though the
question of the financial capability of the complainant to pay the amount in
question cannot be questioned once the issuance of cheque is established,
however, in the instant case, the complainant has been able to establish his
financial capacity by leading evidence to the effect that he was the owner of
60 acres of agricultural land…”
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 13 of 18
-- 13 of 18 --
33. Hon'ble Supreme Court in
Rangappa Vs. Sri Mohan
reported as (2010) SCC 11 441 held that
presumption u/s 139 of NI
Act would also include within its ambit the presumption regarding existence
of legally enforceable debt or liability.
34. The appellant could have rebutted the presumptions
u/s 118 and 139 NI Act, but he failed to do so as he had not made
any complaint against the complainant that he had misused the
cheque to the police or other authority or withheld the cheque in
question as security and even he did not make any representation
to the concerned bank in this regard that complainant might
misuse the said cheque nor he sent any legal notice to the
complainant to return the said cheque by claiming that he had no
legal liability towards the complainant.
35. Appellant claimed that he had only signed the
cheque and not filled the particulars therein, which is not tenable.
Section 20 NI Act: Inchoate stamped instruments:
Where one person signs and delivers to another a paper
stamped in accordance with the law relating to negotiable instruments then
in force in [India], and either wholly blank or having written thereon an
incomplete negotiable instrument, he thereby gives prima facie authority to
the holder thereof to make or complete, as the case may be, upon it a
negotiable instrument, for any amount specified therein and not exceeding
the amount covered by the stamp. The person so signing shall be liable upon
such instrument, in the capacity in which he signed the same, to any holder
in due course for such amount.
36. It is pertinent to mention here that as per judgment
in
Bir Singh Vs. Mukesh Kumar (Crl. Appeal No.230-231 of
2019), Hon'ble Supreme Court has observed that:
"37. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular, Sections 20, 87 and 139,
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 14 of 18
-- 14 of 18 --
makes it amply clear that a person who signs a cheque and makes it over to
the payee remains liable unless he adduces evidence to rebut the
presumption that the cheque had been issued for payment of a debt or in
discharge of a liability. It is immaterial that the cheque may have been filled
in by any person other than the drawer, if the cheque is duly signed by the
drawer. If the cheque is otherwise valid, the penal provisions of Section 138
would be attracted.
38. If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the amount and other
particulars. This in itself would not invalidate the cheque. The onus would
still be on the accused to prove that the cheque was not in discharge of a
debt or liability by adducing evidence. In Ravi Chopra vs State & Anr Vs.
Hon’ble High Court of Delhi held that Section 20 NI Act talks of inchoate
stamped instruments; and states that if a person signs and delivers a paper
stamped in accordance with the law and;either wholly blank or have written
thereon an incomplete negotiable instrument, such person thereby gives
prima facie authority to the holder thereof to make or complete as the case
may be upon it, a negotiable instrument for any amount specified therein
and not exceeding the amount covered by the stamp."
XXX XXX XXX "A collective reading of the above
provisions shows that even under the scheme of the NI Act it is possible for
the drawer of a cheque to give a blank cheque signed by him to the payee
and consent either impliedly or expressly to the said cheque being filled up
at a subsequent point in time and presented for payment by the drawee.
There is no provision in the NI Act which either defines the difference in the
handwriting or the ink pertaining to the material particulars filled up in
comparison with the signature thereon as constituting a material alteration
for the purposes of Section 87 NI Act. What however is essential is that the
cheque must have been signed by the drawer;"
37. The accused had taken the plea that he had given the
cheque as security to complainant, but he had legal liability to
pay the friendly loan taken from complainant and even if, cheque
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 15 of 18
-- 15 of 18 --
was taken as security, the accused was duty bound to return the
loan amount to complainant within 12 months as per written
agreement signed by him or to get the cheque honoured on its
presentation, but he deliberately did not pay the amount and got
the cheque dishonoured and as such he is liable towards
complainant and committed offence u/s 138 NI Act.
38. In
ICD Vs. Beena Shabir & Anr. 2002 (6) SCC 426
the Hon’ble Supreme Court held that
the security cheques would also
fall within the purview of Section 138 NI Act and a person cannot escape
his liability merely by stating that the cheque has been given as security. As
such when there is existence of debt on the date of pretension of cheque and
the security cheque issued is dishonoured, the accused would be liable u/s
138 NI Act. Similar view was taken by Hon’ble Delhi High Court
in
Wilson Mathew Vs. State of NCT of Delhi Crl. Rev. P.
188/2015 dated 15.09.2015.
39. The accused/appellant had admitted taking amount
of Rs. 3,68,000/-, which is mentioned in the loan agreement duly
signed by him and it is common between friends, family friends
and relatives to make cash payments in the needy time and in this
case, the accused required the money towards financial help and
out of good faith, the complainant had given the said amount as
friendly loan.
40. The judgment of Ld. Trial Court is well reasoned
and supported by judicial precedents on the issues raised by the
accused before the Ld. Trial Court and as such the appellant is
not entitled to any relief in the present appeal and accordingly,
the judgment dated 24.08.2024 and order on sentence dated
28.08.2024 of the Trial Court are upheld.
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 16 of 18
-- 16 of 18 --
41. The complainant had proved that the said amount of
Rs. 1,88,000/- was the legally enforceable debt as explained in
Section 138 of NI Act and also all the ingredients, the offence u/s
138 NI Act have been proved against the appellant before the Ld.
Trial Court and the same do not require any interference from
this Court.
CONCLUSION
42. In view of the discussion above, the appeal of the
appellant Puran Chand is dismissed and the judgment dated
24.08.2024 and order on sentence dated 28.08.2024 passed by
Ld. JMFC, Shahdara Karkardooma Courts, Delhi are upheld i.e.
SI for a period of 9 months and fine of Rs. 2,55,289/- to be paid
to the complainant as compensation within one month and in
default, shall undergo SI for 1 month.
43. In
R. Vijayan Vs. Baby (2012) 1 SCC 260, the
Hon’ble Supreme Court held that in all cases where there is a
conviction, there should be a consequential levy of fine of an
amount sufficient to cover the cheque amount and interest
thereon at a fix rate of 9% per annum interest.
44. The appellant is directed to pay the further 9%
interest on the cheque amount of Rs. 1,88,000/- from the date of
Ld. Trial Court’s order on sentence i.e. 28.08.2023 till the date of
realization of the said amount apart from the said compensation
of Rs. 2,55,289/- as ordered by the Ld. Trial Court within 30 days
and in default appellant has to undergo SI for 9 months.
45. Further, the default sentence against the
compensation or fine cannot be a solution for the complainant
and the accused may escape his financial liability by serving the
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 17 of 18
-- 17 of 18 --
default sentence. The solution lies u/s 421/431 Cr.P.C. (461/471
BNSS) under which the compensation/fine may be made
recoverable and the law in this regard has been laid down in
Kumaran Vs. State of Kerala 2017 (7) SCC 471.
The compensation amount as well as the interest
accrued and the cost imposed shall be recoverable u/s 421/431
Cr.P.C. (461/471 BNSS), if not paid.
The present appeal of appellant Puran Chand is
disposed of.
Compensation/fine amount not paid.
Appellant/convict Puran Chand is absconding and
complainant may approach the Ld. Trial Court for execution of
sentence against appellant in accordance with law.
Copy of this judgment be sent to Ld. Trial Court
with TCR and to the convict/appellant/Ld. Amicus free of cost.
The appeal file be consigned to Record Room after
necessary compliance.
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
14.08.2025
CA. No. 223/2024
Puran Chand Vs. Sonu
Page 18 of 18
-- 18 of 18 --