JUDGMENT
R.C. Jain, J.
1. This appeal is directed against the judgment dated 11.9.2003 and order dated 17.9.2003 passed by the learned Additional Sessions Judge, Delhi, thereby convicting the appellant herein for the charge punishable under Section 138 of the Negotiable and Instrument Act, 1981 (hereinafter referred to be as the “Act”) and sentencing him to pay a fine of Rs.25,000/- or in default of payment of fine to suffer rigorous imprisonment for a period of four months. The amount of fine was ordered to be paid to the complainant under the provisions of Section 357 Cr.P.C.
2. The facts leading to the present appeal are that the respondent-firm herein filed a complaint under Section 138 of the Act alleging that the said firm was carrying on the business of supply of various provisions items like flour, maida, suzi, ghee etc. and that the appellant used to purchase the said articles from the said firm. Between 2.9.1999 to 2.10.1999 the appellant purchased various articles of provisions from the firm of the respondent and issued six cheques bearing Nos. 038031, 038032, 038033 038034, 038035 and 038036 dated 25.10.1997, 8.11.1997, 22.11.1997, 6.12.1997, 20.12.1997, 27.12.1997 for the sum of Rs.5,000/-, Rs.5,000/-, Rs.5,000/-, Rs.5,000/-, Rs.5,000/-,Rs.6,150/-, (totaling to Rs.31,150/-) respectively drawn on Bank of baroda, Jhel Khuranja, Delhi-51 which on presentation were not encashed due to insufficient funds in the account of the appellant. The respondent accordingly issued legal notice under Section 138(b) of the Act to the appellant but the appelalnt neither paid the amount of cheques nor replied to the notice.
3. It appears that subsequently the respondent-complainant withdrew the complaints so far as it related to the three cheques and confined his complaint only to three cheques bearing Nos. 038034, 038035, 038036 dated 6.12.1997, 20.12.1997 and 27.12.1997 for the sum of Rs.5,000/-, Rs.5,000/- and Rs.6,150/- (totalling to Rs.16,150/-) respectively, drawn on Bank of Baroda, Jheel Khurenja, Delhi-51. The appellant pleaded not guilty to the notice under Section 251 Cr.P.C. and claimed trial. Complainant/respondent examined himself and two officials of the bank. In his examination under Section 313 Cr.P.C. the appellant did not deny the issuance of cheques by him and also the factum of their non-encashment and receipt of notice but came out with the defense that the cheques were given by him to the complainant in consideration of a transaction relating to a plot of land at Lodi Road. The cheques were blank at that time and the transaction did not materialise. The appellant denied having purchased any provision articles from the complainant and cheques having been issued towards the cost of the said articles. He produced one defense witness in an attempt to establish that the appellant was not engaged in any business of selling the provisions articles.
4. The learned trial court on a consideration of the evidence and material brought on record, recorded the finding of guilty against the appellant and sentenced him as above.
5. I have heard Mr. A.K. Bakshi, learned counsel representing the appellant, Mr. Devender Gupta, learned counsel representing respondent No.1 and have given my thoughtful consideration to their respective submissions.
6. Learned counsel for the appellant has vehemently urged that the finding of conviction recorded by the learned trial court is erroneous inasmuch as the complainant has failed to establish the material facts in regard to the sale of provision articles to the appellant through cogent and reliable evidence. It is pointed out that the bills produced on record were the copies and they do not correctly reflect the quantity of the provision articles made to the appellant. It is also pointed out that all the bills so produced are not in the name of the appellant and one bill is in the name of an altogether different person. It is also urged that the defense put forth by the appellant is a probable one and the trial court was not justified in discarding the same. On the other hand, it is pleaded that once the appellant has admitted the issuance of cheques and their non-encashment and receipt of notice a presumption should be drawn that the cheques were for valid consideration e.g. towards the price of provision articles purchased by the appellant from the firm of the respondent.
7. This Court having considered the respective contentions put forth on behalf of the parties is of the view that on the face of the material and evidence produced on record, the trial court was fully justified in holding the appellant guilty of the charge because it has been brought out from the evidence of the defense witness itself that the appellant used to carry on the business of provision articles during the relevant period though after some time he stopped that business. Besides it is pertinent to notice that the appellant did not stop the payment of the cheques issued by him when the alleged transaction of sale of certain landed property did not materialise nor he replied to the notice issued by the complainant. This silence and inaction on the part of the complainant, would lend credit to the complainant’s version about he having supplied the provision articles to the appellant. No evidence was led on behalf of the appellant to show that there was any transaction in relation to a plot of and. On the face of this, the learned trial court was justified in discarding the defense version. In the opinion of this Court, the finding of conviction is not liable to be set aside. The appellant should thank his stars that the learned trial court has not awarded any sentence of imprisonment to him and has taken a lenient view in the matter of sentence by imposing a fine of Rs.25,000/- only which by no standard can be said to be harsh or excessive.
8. In the result, this appeal fails and is hereby dismissed.