69$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Dated of Decision: 23.05.2012
+ CRL.REV.P. 280/2012
KAMRUDDIN ALI ..... Petitioner
Through: Mr Awdhesh Kumar, Advocate.
versus
CITI FINANCIAL & ORS ..... Respondent
Through: Ms. Manali Singhal, Ms. Monika
Singhal and Mr. Mohit Kr. Auluck,
Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA (ORAL)
ORDER
% 23.05.2012 Crl. M.A. No. 6559/2012 in Crl. R.P. No. 280/2012 Allowed, subject to all just exceptions.
Application stands disposed of.
Crl. REV.P. No. 280/2012
1. This Criminal Revision petition U/s 397 Cr.P.C. is against the judgment and order dated 19.5.2012 of Learned ASJ whereby appeal against the judgment 29.10.2011 and order on sentence dated 15.11.2011 of the Learned M.M. in the complaint U/s 138 N.I. Act against the petitioner, was dismissed. Vide judgment dated 29.10.2011 the petitioner was convicted U/s 138 N.I. Act and vide order dated 15.11.2011 he was sentenced to undergo SI for a period of six months and to Crl.Rev.P. 280/2012 Page 1 of 3 pay the compensation of Rs.1,20,000/- to the complainant and in default to further undergo SI for three months.
2. In the complaint that was filed against the petitioner U/s 138 N.I. Act, the allegations are that he had vide agreement and in partial discharge of his liability issued a cheque for a sum of Rs.1,20,000/- in favour of the respondent on 23.12.2009 and the said cheque on presentation got dishonoured on account of "insufficiency of funds" and further that he failed to pay the said amount despite notice of demand dated 15.1.2010. The Learned M.M. decided the complaint on under mentioned two issues:-
a) Whether the legal notice was duly served on the accused?
b) Whether the cheque in question was issued in discharge of any legally enforceable debt or liability?
3. Having regard to the testimony of complainant CW 1 and also the evidence of the postal authority, the Learned M.M. recorded a finding of fact of service of notice of demand on the petitioner.
4. With regard to the second issue, it was noted that there was no dispute that the petitioner had availed a loan of Rs.1,20,000/- from the respondent company which was payable by him in 48 EMIs of Rs.4000/- per month. It was also not in dispute that the petitioner had made payment of nine EMIs. The defence that was taken by the petitioner was that the cheque in question allegedly given by him was blank and given as a security for taking loan from the complainant/respondent. The Learned M.M. recorded the finding of presumption U/s 139 and Section 118
(a) of the N.I.Act in favour of the complainant/respondent, which the petitioner having failed to prove even by the standard of preponderance of probabilities, he resultantly recorded conviction against him.
5. In the appeal, the plea that was raised was that the amount had already been paid to the complainant/respondent and nothing was due and that the blank cheque Crl.Rev.P. 280/2012 Page 2 of 3 was given as security at the time of disbursement of loan. The Ld. ASJ categorically recorded that the petitioner having failed to produce any evidence that he had made the entire payment due against him and that the blank cheque was given by him as security, the said cheque of Rs.1,20,000/- was held as given by him towards legally recoverable debt from him. The plea regarding the non- receipt of legal notice was also turned down recording that the same was addressed at the admitted address of the petitioner. There was no challenge with regard to the fact that notice bearing the complete and correct address was addressed to the petitioner. I do not see any reason to interfere with the finding of the fact of service of notice by learned M.M.
6. In view of my above discussion, I do not see any illegality or infirmity in the impugned judgment. There is no ground made out to interfere in the reasoning given by the learned ASJ. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J MAY 23, 2012 pkv Crl.Rev.P. 280/2012 Page 3 of 3