Sri Vijay Khandelwala vs Sri Govind Agarwal on 4 November, 2008

_ returned with an endorsement of "insufficient funds"

dvide*memo dated 16.05.2003. The respondent issued a

ivpetitiener 'end the said notice was served on
1"57de{}oa,2d03: Despite the service of notice, the
hpetitieher failed to make the payment, within the
uipreecribed time. In the circumstances, the

d"~respondent approached the Trial Court with O;Z:"

respondent a sum of Rs.2,40,000~O0 instead__ of
Rs.2,00,000-00, Rs.40,000-00 being penalty,V_V:'-.6'for
breach of contract. MN » udiu

Despite the advance payeent made 'by cthe V
respondent, the petitioner failed te sdppiy the pigi
Set as agreed. upon and in.pthQh1éirCumgtencee,tptheif
respondent demanded to retdrn bf thered§ence emount
of Rs.2,oo,ooo-00  ReV;"4dV,ooo~oo.
Accordingly, the petiticeer ieeugg g cheque bearing
No.244926   iv a sum of
Rs.2,40,000+dOfldrewh entéépera hank for discharge of
the debtaduelfextheareependentxd

The tréepondentr'preeented the said cheque for

payment to ahis ibankerk and the said cheque was

noe¢e,,«eet'ee é'2",'o5.2oo3 by regietered post to the



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complaint against the petitioner requesting to take

action under Section 138 of the Act.

in pursuance of the summons issued, 'theii

petitioner appeared before them er;g1_,¢og;: ,ana'

during the Trial, the respondenthrfias ienamined",as_

P.W.1 and got marked the docnmentsiE3s;E1oter?:'fiThei'V

petitioner was examined as D,fi}i_and did"flQ§fifroduce
any documentary evidence{\_idThemririal Court on
appreciation of Wthe znateriai. on irecord, convicted
the petitioner for the oftence nnder Section 138 of
the Act and  of Rs.3,50,000-00
and also sentenced. to 'nnderoo simple imprisonment
for one fear and in defafilt of payment of the fine,

to undergo simglevimerisonment for six months. The

('1'tr:-j_a1{._f:oz;s:t'--- zdirectiediv to pay Rs.3,25,000-00 to the

reseondent as compensation and to credit the rest of

iii.» the amount to the State as fine. Aggrieved by the

hu_ conviction; and the sentence, the petitioner

"« approached the Sessions Court in Cri.A. No.936/2005.

i;_ the said appeal was heard on merits and confirming

'=§Aé" conviction of the petitioner for the offence

'under Section 138 of the Act modifying the sentence

enhancing the fine amount to Rs.4,50,000«0O and set



advance amount of Rs.2,00,GOG--0O with a condition

that the Q.G.Set was to be supplied within a period

of 2 weeks from the date of payment of themedegncedu

amount and on failure, an amount of Rs.§O,QGQ¥QQ ha3d*V

to be paid as penalty for breach of the contractl_

On going through the evidence it has been ind hy the
comglainant and. also the efiidence of. fi;§Ll;n there
appears to be no serious difiékfg fig regérds olacing
of the Order for a'DQ$iSet; ,§fidfd payment of
Rs.2,oo,ooo»oe _as; an faatateiofafigfinti and further
breach of the tgtttttt pf*the oetitioner. So, in
the circumstances: as redards the contract between
the partiesris tpfittrtteivgs the petitioner failed

to give theVp;G,$et within the time fixed, he was

tg pay as 2,4o,ooQéOo and it is in this context that

"the ',§etitioner had issued a cheque for

Rsi2g4Q,G0u%QQ iini favour of the respondent. The

'ihsaid Acheque' has been produced at Ex.P1 and the

~.f3ignature of the accused is also not in dispute. It

'< is thereefter the respondent presented the cheque to

hiithe bank and the bank endorsement has been produced

ih'»atf Ex.P2. The said cheque was returned with an

d. endorsement of "insufficient funds". Ex.P3 is the

slip and EX.?4 is the copy of the notice issued to



Award of fine of Rs.25,000~OO is on higher side and

it may be reduced.

8. The learned counsel for the? fietitiener .
submits that an amount of Rsg2}50,Q&deeei1fiéevifieen
deposited in the Triai Court and the said afioufiE*§aad
withdrawn by the respondent and further an afiount oft
Rs.S0,000--OO is paidf to~daydwthr0ughd'banker§ cheque
No.152994 drawn on dI5ICIi BanEV dated 03.11.2068,
thereby the petitienerdnhash_to:d@a§hfthe remaining
amount of Reé$d;uQ0edO ,te tired respondent and he
prays for t§9;aa§tfi§ tide fer Qayment of the same.
So far as the fine aeoent_is eoncerned, I think it
would be just and peapar to reduce the fine amount

to Rs,20,00d*QD;_d In 'the Circumstances, I answer

5 point Nogl in affirmative and point No.2 partly in

affireatiye and partly in negative and proceed to

'd=Vi pass the feilofiingz

ORDER

r The petition is allowed in part. The

veetitioner is ordered to pay the compensation amount

“5f Rs.3,70,000~OG and out of the said amount, he

shall pay Rs.3,50,000–GO to the respondent herein

aid

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and credit Rs.20,000~0O ix: th@ State. The amount

already withdrawn and paid today is to be dedufited

from the amount payable to the respénfiéntgn:inK

default of payment of the fine .amo&nt ‘§i,et;”

Rs.50,000~OO + Rs.20,000~O0} within_tfio’mbnth§mfrQm

this date, the petitioner. is VCtdered;tt¢n_nndergo t

simple imprisonment for-a pefi¢d_of Six mdnths.

Ksm*