TMI Blog2018 (3) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of compensation to the complainant, Simple Imprisonment for a further period of six months. 2. Briefly stated relevant facts for the disposal of the present appeal are as under: 3. The complainant(respondent No.1 herein) has filed a complaint case under Section 138 NI Act, titled as 'Sameer Sharma v. Suraj Maurya' stating therein that an agreement-cum-Bayana Receipt was executed between the accused(appellant herein) and the complainant (respondent No.1 herein) on 26.05.2005 whereby the accused(appellant herein) had agreed to sell the property No. BE-170, Hari Nagar, New Delhi to the complainant for a consideration of ₹ 5,10,000/- out of which a sum of ₹ 2,10,000/- was paid in cash on 26.05.2005 by the complainant (respondent No.1 herein) to the accused as earnest money and the balance amount was payable on or before 10.10.2005 subject to transferring the title of the property in favour of the complainant alongwith actual, peaceful, physical and vacant possession of the shop and remaining built up portion in the said property. However, the accused(appellant herein) failed to hand over the actual, peaceful, vacant possession to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit at the shop of his friend Ravinder and on 26.05.2005, a Bayana Receipt of the sum of ₹ 2,10,000/- was executed between the accused and the complainant for the purchase of a plot at Hari Nagar by the complainant from the accused and the Bayana amount was paid in his presence at the shop of Shri Ravinder. Thereafter, the complainant evidence was closed on 19.12.2016 and Statement of Accused under section 313 Cr.PC was recorded on 04.01.2017 in which accused denied allegations against him and accused stated that he wants to lead evidence in defence. 6. In the Defence Evidence, accused(appellant herein) got examined Shri Brijesh Gupta as DW1, Shri Sonu Maurya as DW2 and entered himself in the witness box as DW3 and defence evidence was closed on 28.04.2017. DW1 Shri Brijesh Gupta stated that he is Proprietor of M/s B. K. Electronics and copy of receipt bearing No.651 dated 25.10.2005, Ex. DW1/1 appears to have been issued by his shop. DW 1 further stated that as per the receipt Ex. DW1/1, it appears that the T.V. was sold on down payment and rest of the amount was financed but he cannot comment upon the genuineness of the receipt as the receipt is very old and he d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 4000/- but Ravinder Sharma issued a receipt of ₹ 3000/- in his name and Ravinder Sharma stated that he will put ₹ 1000/- in his account which will be used towards monthly installments. DW3 stated that after payment of all installments, he told Shri Ravinder Sharma to return the blank papers alongwith the cheque but Ravinder Sharma did not return the same. Thereafter, he came to know from the entry in his passbook that the said cheque was presented in the bank in the name of Sameer Sharma and was withdrawn. 9. Thereafter, final arguments were heard by the Ld. Trial Court and vide the impugned judgment dated 02.08.2017 and Order on Sentence dated 16.09.2017 passed by Ld. Trial Court, accused (appellant herein) has been convicted for the offence punishable under section 138 NI Act and has been sentenced to Simple imprisonment for a period of six months and the accused(appellant herein) has been directed to pay a compensation of ₹ 2,10,000/- alongwith litigation expenses of ₹ 40,000/- to the complainant and in default of payment of compensation to the complainant, Simple Imprisonment for a further period of six months and feeling aggrieved w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in exclusively ownership of the accused and in the circumstances, accused is not competent to sell the same and in the circumstances, the plea of the complainant that the accused had agreed to sell the property has no force. 13. Ld. Counsel for the respondent has contended that the accused has admitted that the cheque and Bayana Receipt bear his signatures but the accused has raised false plea that same were given to one Ravinder Sharma. Ld. Counsel for the respondent has further contended that as per section 139 of the NI Act, there is presumption that the cheque was issued by the accused in discharge of his liability unless the contrary is proved. Ld. Counsel for the respondent has contended that the accused has not examined Shri Ravinder Sharma to prove that he had given the cheque to Shri Ravinder Sharma and that Shri Ravinder Sharma had paid the installments of TV as alleged by the accused. Ld. Counsel for the respondent has further contended that DW 1 has not conclusively stated that the receipt Ex.DW1/1, on which reliance has been placed by the accused, was issued by him as he stated that he does not have any record of the said receipt and that the accused has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to prove his defence, the accused has examined DW1 Shri Brijesh Gupta, who stated that as per the copy of receipt dated 25.10.2005, Ex.DW1/1, one TV appears to have been sold and he cannot comment upon the genuineness of the receipt as the same is very old and he has no such records maintained with him. DW 1 stated that as per Ex.DW1/1 name of the finance company is mentioned as GE and finance is issued only through the account of customer and no other persons account can be added to make the payment on behalf of the customer. The plea of the accused is that he has arranged finance for purchase of TV through Shri Ravinder Sharma. DW1 has not stated in his testimony that Ravinder Sharma agreed to make the payment of installment amount of the purchase price of TV. The accused has not proved any records from the finance company M/s G. E. Countrywide that he got finance for purchase of TV and installments were paid by Ravinder Sharma. In his cross-examination, the accused/DW 3 Suraj Maurya stated that he does not know that from which bank, the TV was financed. Although the accused has pleaded that blank signed cheque containing account No. in his hand was handed over to Ravinde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as DW 2 appears to be an interested witness being the uncle of the accused. The DW2 did not mention the date on which the transaction took place or the fact that cheque in question was given in his presence to Ravinder Sharma. The DW2 stated during his cross examination that he worked with Ravinder Sharma till 2006. The witness also deposed that he is doing his own stitching work after taking the premises on rent from the accused. It also appears that being the tenant of the accused, the DW2 has tried to depose in the favour of the accused and his knowledge appears to be derivative from the accused. The evidence of the DW2 cannot be relied upon in the view of the evidence of DW1. Thirdly, the accused never stated the date on which he paid the last installment and when did he ask the Ravinder sharma to return his cheques and blank signed form. The evidence of the accused can't be believed that Ravinder Sharma assured him that no action will be taken with regard to his cheques. The complaint was also filed by the accused against Ravinder Sharma in the year 2011 at PS Dabri i.e. after 5 years from the date of the filing of the present case. The accused did not pursue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not stated that he has not received the demand notice. In the impugned judgment, the Ld. Trial Court has been pleased to observe: 8. The accused argued that he did not receive the legal demand notice as he was not residing at the said address and this fact was known to the complainant. The complainant during his cross examination stated that he only knew one address of the accused i.e. P66, Chankya Palace, Uttam nagar, New Delhi. The accused admitted during his cross examination that P66 and P68, Chanakaya Palace, Part 2, Uttam Nagar, New Delhi are his house. In view of the above admission, the presumption under section 27 of the general clauses act goes in the favour of the complainant. Further, the accused could not bring on record any cogent evidence to show that he did not receive the legal demand notice. I will rely upon the judgment of Hon'ble Supreme Court of India in C.C. Alavi Haji vs Palapetty Muhammed Anr (2007) 6 SCC 55. It was held as follows: 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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