O.P. Gaur vs O.P. Goel And Anr.
2003 Latest Caselaw 1083 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Appellant is aggrieved by the impugned judgment dated 22th November, 2001 passed by Sh. Rakesh Kumar Sharma. Metropolitan Magistrate, Delhi dismissing the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act against the respondent.

2. By the impugned judgment the learned Metropolitan Magistrate has held in favor of the appellant that indeed the respondent had a legal debt in the sum of Rs. 1,37,258 /- to pay to the appellant and in satisfaction of the said debt issued three cheques in the sum of Rs. 57,000/-, 40,000/- and 40,238/-. When presented for the encashment the cheques returned back dishonoured by the banker. It was also held in favor of the appellant that as per the requirement of law he had issued the statutory notice calling upon the respondent to tender the amount covered by the three cheques within fifteen days of receipt of notice failing which action under Section 138 of the Negotiable Instruments Act would be initiated. It has been held that the said notice was posted within the period of limitation prescribed. The only issue which has been decided against the appellant is that it has not been proved that the statutory demand notice was sent at the correct address of the respondent and in that view of the matter the complaint of the appellant stood dismissed.

3. By the impugned judgment the learned Trial Judge has held that the notice of demand was issued at the following address:

160, MCD Quarters, Nimri Colony, Delhi-110007.

But the acknowledgement due card, filed in support of the fact that the notice was duly received by the respondent/accused bears the address '160, Delhi Administration Quarters, Nimri Colony, Delhi'. It was thus held that this discrepancy shows that the notice was not served upon the respondent.

4. Mr. P.R. Thakur, learned Counsel for the appellant made a very simple submission. The submission was that the A.D. card bore the signatures of the respondent and this was proof enough that the notice was received by him because there was only one notice issued under cover of registered post, acknowledgement due.

5. We have perused the record. CW 1 Laxman Singh, Clerk from Syndicate Bank, Asaf Ali Road, New Delhi proved that the account from which the first two cheques were issued was a closed account and as regards the third, the same was returned with the remarks "exceeds arrangement". From the testimony of CW 2 Pramod Jain it stands established that the accused had issued promissory notes Ex. C7 to Ex. C9 covering the cheque amounts. It is relevant to note that this witness was not cross-examined.

6. Appellant, in his deposition stated that the statutory notice was sent by registered post, acknowledgement due and A.D. card was received back which bore the signatures of the respondent. A mere suggestion was put to the appellant in cross-examination that this was incorrect. It is not disputed that the respondent resides at Flat No. 160, Delhi Administration Quarters, Nimri Colony, Delhi-110007. From the testimony of the appellant it is apparent that there was a mis-description in the address as given in the notice but in the envelope in which the notice was posted. The correct address was mentioned, evidenced by the fact that the A.D. card which was received back by the appellant bore the correct address, and was signed by the respondent.

7. In the statement recorded under Section 313, Cr.P.C. the A.D. card Ex. CW 4/2 was specifically put to respondent and in response thereto he merely denied. He nowhere stated that the signatures on the A.D. card were forged. The learned Trial Judge has acquitted the respondent, giving him the benefit of doubt on the mere fact that the address set out in the notice was not the address of the respondent, ignoring the fact that the notice was actually posted at the correct address. We accordingly allow the appeal and set aside the impugned judgment dated 22nd November, 2001 passed by Mr. Rakesh Kumar Sharma, Metropolitan Magistrate dismissing the complaint filed by the complainant.

8. Coming to the sentence, the cheques were issued in the year 1992 and we are in the year 2003. Following the judgment of the Hon'ble Supreme Court reported as I (2001) CCR 106 (SC)=2001 SCC (Cri.) 369; Pankaj Bhai Nagji Bhai Patel v. State of Gujarat and Anr., we impose the sentence of imprisonment of two months on the respondent. We further direct the respondent to pay compensation to the petitioner in the sum of Rs. 2,74,476/- i.e. twice the amount covered by three cheques.