MRS. GEETA PRASHER Vs. LASER LINKS

JUDGEMENT

(1.) THIS revision petition by Geeta Prasher, Petitioner -accused, has been preferred against the judgment dated 17.8.2004 passed by Additional Session Judge (Ad hoc), Faridabad, vide which he dismissed the appeal preferred by the accused against the judgment dated 26.9.2002 and order dated 27.9.2002 convicting her for the offence under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as "the Act") and sentencing her to pay a fine of Rs.5000/ -and compensation of '. 3,20,000/ -and in default thereof to undergo rigorous imprisonment for a period of six months.

(2.) THE facts in brief, are that the complainant -Respondent M/s Lazer Links(India), which is a sole proprietorship concern, filed complaint through its sole proprietor, Bhupinder Singh, under the aforesaid section. As per the contentions made therein, the accused is the proprietor of her firm M/s KIA ZAN IMPEX, who got done the work of embroidery from the complainant from time to time, for a sum of Rs.8 lacs(approximately). As part payment of that work, the accused issued cheque No. 572989 dated 21.3.1998 for '. 2 lacs, drawn on Canara Bank, South Extension, New Delhi. He presented the cheque for collection through his banker but the same was dishonoured, vide memo dated 24.3.1998, on account of 'insufficient funds' in the accounts of the accused. When he apprised her of that fact, she assured that on re -presentation of the cheque for the second time, the same will be encashed. On that assurance of the accused, he again presented the cheque for payment through his banker, but the same was dishonoured, vide memo dated 24.6.1998, with the remarks that "payment had been stopped". He received that information on 26.6.1998 and thereafter, got issued a legal notice dated 3.7.1998 calling upon the accused to make the payment of the cheque but he failed to do so. On the basis of the preliminary evidence produced by the complainant, Judicial Magistrate found sufficient grounds for proceedings against the accused under Section 138 of the Act and she was summoned accordingly. On appearance of the accused in the trial court, notice of the offence was given to her to which she pleaded not guilty and claimed trial. To prove her guilt, the complainant examined herself as PW -3, Manish Sharma, PW -1 and Neelam, PW -2. After the evidence was closed by the complainant, the accused was examined by the trial court and her statement was recorded under Section 313 Code of Criminal Procedure The incriminating circumstances appearing against her in the prosecution evidence were put to her in order to enable her to explain the same. She admitted that she had been getting the embroidery work done from the complainant but pleaded that the cheque in question was issued as advance payment. The amount due to the complainant had already been cleared before the notice was received by her. The supply was not made by the complainant in time as a result thereof the payment of the cheque was stopped. The accused was called upon to enter on her defence. She examined Ashok Bhatti, DW -1. After going through the evidence, so produced on the record, and hearing counsel for both the sides, the Judicial Magistrate convicted and sentenced the accused, as aforesaid.

(3.) ON the other hand, it has been submitted by counsel for the complainant that the payment had become due even before the issuance of the bills as the embroidery work was to be done by the complainant on the clothes which had already been supplied and by the time, the cheque was issued, a sum of Rs.8 lacs was due to the complainant. The cheque was issued as a part payment and the dishonouring of the cheque on account of insufficient funds in the account of the accused and non -payment of the amount of the cheque after the service of the notice constitutes an offence.