BIJENDER SHARMA Vs. ANIL SABHARWAL

JUDGEMENT

(1.) The petitioner has laid challenge to the judgment and order dated 06.10.2016/07.10.2016 passed by the Metropolitan Magistrate, South-01, N.I. Act, Saket Courts, New Delhi in Complaint Case No. 117/2014 whereby he has been convicted for the offence under section 138 of the Negotiable Instruments Act and has been sentenced to undergo SI for a period of eight months, to pay a fine of Rs. 50 lakhs payable as compensation to the respondent/complainant and in default of payment of fine to further undergo SI for four months and the judgment in appeal (Crl. Appeal No. 54/2016) passed by the learned Additional Sessions Judge/Special Judge, CBI-03, P.C Act, South District, Saket Courts, New Delhi whereby the judgment and order of conviction and sentence by the Trial Court has been affirmed and upheld.

(2.) The petitioner is alleged to have issued five cheques drawn on HDFC Bank, Chattarpur, New Delhi in favour of the respondent as security to a loan agreement which is said to have been executed on 17.01.2012 for having received Rs. 50 lakhs from the respondent. The aforesaid cheques, on presentation by the respondent in the bank, were dishonoured because of the "instructions of stop payment". Hence the complaint.

(3.) It has been alleged in the complaint that the petitioner is a property dealer who was known to the respondent/complainant. On his asking, the respondent is said to have given a loan of Rs. 50 lakhs on deposit of the title documents of land bearing No.56, Asola Village, Fatehpur Beri by the petitioner. It has been averred in the complaint that the respondent/complainant disposed of the second floor of his House No. 90/5, Malviya Nagar, New Delhi for an amount of Rs. 38 lakhs on 02.06.2011 and arranged for the balance amount of Rs. 12 lakhs from one Rajesh Goel after mortgaging his property and paid the amount in cash to the petitioner/accused on 17.01.2012. On that date, five cheques were issued by the petitioner and a loan agreement was drawn on a stamp paper of Rs. 100/-. The petitioner is also said to have deposited, as stated earlier, the document pertaining to plot No.56, Asola Village, Fatehpur Beri. After about a month of the giving of loan, it is alleged that the property document of Plot No.56, Asola Village was taken away and was substituted with the document of Plot No.39 on the pretext of selling off the property No.56, Asola Village, Fatehpur Beri for the purposes of repayment of loan. The allegation against the petitioner/accused is of having dilly dallied thereafter. One of the cheques was presented on 19.12.2013 for clearance which was returned unpaid with the remarks "payment stopped" vide return memo dated 20.12.2013, which was received by the respondent/complainant on 21.12.2013. Thereafter, on 01.01.2014, four other cheques were presented by the respondent/complainant which too were dishonoured with the same remark vide memo dated 02.01.2014 which was received by the respondent/complainant on 03.01.2014. Thereafter, the petitioner did not respond to the notice and instead sent a notice to the respondent/complainant denying the liability of payment of Rs. 50 lakhs. It was stated in the aforesaid notice sent by the petitioner that he had received only Rs. 50,000/- in cash in the month of January, 2012 and that also for six months only on interest at the rate of 5% and the petitioner had issued the aforesaid five cheques in blank with respect to the aforesaid loan. The notice sent by the petitioner inter-alia stated that the amount of Rs. 50,000/- has already been paid along with interest and that in an unauthorized manner, the respondent/complainant withheld the cheques in question and has misused them.