Manoj Kumar vs Jitender Jain
2012 Latest Caselaw 3553 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI


+       CRL.REV.P. 303/2012, Crl.M.B. 1046/2012, Crl.M.A. 6846/2012

                                             Date of Decision: 28.05.2012


MANOJ KUMAR                                         ..... Petitioner
                               Through:   Mr.Ajay Kumar, Advocate.

                      versus


JITENDER JAIN                                           ..... Respondent
                               Through:


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This criminal revision petition is filed under Section 397 CrPC read with Section 401 CrPC against the judgment dated 10.5.2012 of the learned ASJ whereby he dismissed the appeal against the judgment and order on sentence of dated 22.02.2012 and 23.02.2012 of the petitioner under Section 138 NI Act (hereinafter referred to as the „Act‟).

2. The respondent had filed a complaint against the petitioner under Section 138 of the Act on account of dishonour of cheque of Rs.2 Lacs given by the petitioner in discharge of his legal liability and on his having failed to make payment despite service of notice under Section Crl.Rev.P. 303/2012

138 of the Act. The petitioner was convicted under Section 138 of the Act and was sentenced to undergo RI of 4 months with compensation of Rs.3,10,000/- payable to the complainant. The said judgment and order were carried in appeal before the ASJ who vide the impugned order dismissed the appeal.

3. The impugned order as also the judgment and order on sentence have been assailed mainly on the ground that the petitioner had given the cheque of Rs.2 Lacs as a security of the payments of his friend Ashok Kumar to the respondent/complainant. In this regard, it was submitted that Ashok Kumar having paid his dues to the complainant in cash, the petitioner was entitled to be returned the aforesaid cheque by the complainant, which the later instead of returning, presented in the bank. It was submitted that if according to the complainant, the liability of the petitioner was of Rs.2,75,075/- and out of which Rs.15,075/- was claimed to have been given by him to the complainant, then why did the complainant accept the cheque of Rs.2 Lacs as against the alleged outstanding amount of Rs.2,60,000/-. In other words, the plea was that since according to the complainant, the outstanding liability of the petitioner was Rs.2,60,000/-, it was improbable that complainant would accept a cheque of Rs.2 Lacs from the petitioner.

4. I have heard learned counsel for the petitioner and perused the record.

Crl.Rev.P. 303/2012

5. As noted from the record, there is no dispute that the cheque in question of Rs.2 Lacs duly signed by the petitioner at three places was given by him to the complainant and the said cheque on presentation was dishonoured on account of "insufficient funds". It is also undisputed that a notice of demand dated 08.01.2008 was duly received by the petitioner and that nothing was paid by him to the complainant.

6. The plea that was taken by the petitioner that the said cheque of Rs.2 Lacs was given as security of the payments due to the complainant from his friend Ashok Kumar, who had dealings with the complainant, is utterly false and crumbles from the testimony of Ashok Kumar. From the testimony of Ashok Kumar, it was gathered that he had no dealing of any kind with the complainant. According to him he was running a jewellery shop and was purchasing goods from the complainant from February, 2007. It was astonishing that not only he had no proof of any goods having been even purchased by him from the complainant, but also had no documentary proof regarding doing any business. It was unbelievable that a person dealing in jewellery and buying the goods on credit for the last five years or so, would not have any document of any kind of running a shop or dealing in jewellery. Assuming that the cheque in question was given as a security of the transaction executed by Ashok Kumar with the complainant, if Ashok Kumar had paid the money to the complainant as alleged by the petitioner, why the petitioner did not ask for the return of the cheque from the complainant or initiate any action in this regard. The testimony of Vikram Yadav Crl.Rev.P. 303/2012

examined as DW3 by the petitioner, to the effect that the petitioner had asked for return of cheque two years before in the month of October- November, is another addition in the bundle of lies. The cheque in question was issued in December, 2007 and it would not appeal to any reason that the petitioner accompanied with DW3 would have gone to the house of the complainant about two years back only i.e., after more than two years of issue of cheque.

7. In view of my above discussion, I do not see any infirmity or illegality in the judgment and order of learned M.M. as also in the impugned order of the learned ASJ. Having regard to the fact that the dishonour of cheques has become rampant state of affairs and drawers of the cheques are taking undue advantage of the proceedings under Section 138 of the Act leisurely, I am also not inclined to interfere in the sentence awarded by the M.M. and maintained by ASJ. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

MAY 28, 2012/akb

Crl.Rev.P. 303/2012