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TMI Blog2018 (3) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 5,10,000/- out of which a sum of Rs. 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 complainant on or before the said stipulated date. It is stated that when the matter was substantially delayed, with the intervention of some common friends, the dispute was amicably resolved and accordingly, the accused(appellant herein) handed over a cheque No.355901 dated 14.06.2006 for a sum of Rs. 2,10,000/- to the complainant and promised to pay a sum of Rs. 1,10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 does not have such record maintained in his shop. DW 1 further stated that there is a word written as G.E. on the receipt which as per his knowledge is the name of the Finance Company i.e. G Countrywide and as per the receipt the TV was sold to Suraj Maurya. DW1 further stated that finance is issued only through the account of the customer and no other person can be added to make the payment on behalf of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 2,10,000/- alongwith litigation expenses of Rs. 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 with the aforesaid impugned judgment and Order on Sentence, the accused Suraj Maurya (appellant herein) has filed the present appeal. 10. The present appeal has been filed by the accused(appellant herein) challenging the impugned judgment dated 02.08.2017 and Order on Sentence dated 16.09.2017 on the grounds that the Ld. Trial court has failed to consider the material evidence and testimonies of witnesses and has failed to interpret the law laid down in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended 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 also not examined any witness from the said finance company i.e. GE countrywide to prove that any finance was given by the said company to the accused or that in respect of the same any installments were paid. 14. In reply to the notice under section 251 Cr PC, in his defence, the accused has answered as under: Ans. The cheque in question pertains to my bank account. The cheque in question was handed over to Sh. Ravinder Sharma (friend of the complainant) only signing the cheque and writing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ravinder Sharma but in the cross-examination of CW1, the accused has not given any suggestion to the effect that the contents of the cheque Ex.CW1/2 are not in the hand of accused and the same were filed by the complainant himself. DW2 Shri Sonu Maurya has not stated that any bayana receipt was also executed by the accused. 16. The case under section 138 of the Negotiable Instruments Act has been filed by the complainant against the accused on account of dishonouring of cheque No.355901 dated 14.06.2006 drawn on The Kangra Co- Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 complaint by him against the Ravinder Sharma and shows the absence of bonafide on part of the accused. It shows that filing of the complaint was an after thought just to create the defence. The accused could have sought permission to examine Ravinder Sharma to prove his defence, but it was never done by him. The accused has failed to act as prudent person. 13. The defence of the accused that he has not entered into the agreement cum bayana receipt for the sale of property i.e. BE170, Hari Nagar, New Delhi with the complainant is also not tenable in view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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