Anup Kumar Sinha v. State & Anr

MANOJ KUMAR OHRI, J SEPTEMBER 20th, 2019 ga/na

* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 364/2018 Judgment Reserved : 13.09.2019 Date of Decision : 20.09.2019 IN THE MATTER OF ANUP KUMAR SINHA ..... Petitioner Through: Mr. Vishal Sinha, Adv. versus STATE & ANR. ..... Respondents Through: Dr. M.P. Singh, APP for State. Mr. Varun Chawla and Mr. Atithya Saxena, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI 1. By way of present revision petition, the petitioner has challenged the impugned judgment dated 22.01.2018 passed by the Additional Sessions Judge-03 (South), Saket Courts, New Delhi in Criminal Appeal No. 8176/16 arising out of C.C. No. 931/6/2014, whereby the petitioner's conviction was upheld. 2. The Trial Court, vide judgment dated 27.08.2015, convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881 and vide order on sentence dated 10.09.2015 directed the petitioner to pay compensation of Rs.6 lacs to the complainant within three months and in default thereof to undergo simple imprisonment for six months. 3. The brief facts, as noted by the Appellate Court, are as under :- "3. The brief facts of the case as emanating from the trial court record are that the complainant was interested to purchase a property in Goa. In the year 2007, complainant met the accused in Delhi, accused introduced himself as a property consultant in Goa. On 17.02.2008, during a visit to Goa, complainant contacted accused for purchase of a property in Goa. Thereafter, complainant was shown certain properties at Neruel Badez, District Goa and he became ready to purchase one property and accordingly, he asked accused to organise a meeting with the owner Mrs. Milananeze Gomes. After few days, accused informed complainant that Mr. Mario F. Pachaco, the advocate of said owner had asked to deposit Rs.15 lacs as earnest money for organizing meeting with the owner as he stated that owner is an old man and he would come to Mumbai only if the complainant showed his intentions to buy by paying Rs.15 lacs. The complainant however denied to pay said amount of earnest money without the execution of agreement to sell. After some time, complainant was again approached by the accused and asked to send Rs.3 lacs in the account of the accused for proceeding further with the negotiations with Mr. Pachaco and for organizing the meeting with the owner of the property. Accordingly, complainant deposited a cheque of Rs.3 lacs which got honoured and the money got transferred in the account of accused on 29.02.2008. 4. But later on, complainant came to know that the owner of the property had never demanded any earnest money for organizing any meeting with the complainant. Thereafter, complainant demanded his money back from the accused and accused assured him to deposit the money in complainant's bank account within two days. However, when accused failed to pay back said amount, complainant filed a police complaint against accused with Goa police pursuant to which, accused gave a cheque no. 070202 dated 30.04.2008 (the date was subsequently changed to 10.06.2008 by the accused under his initials) drawn on State Bank of Patiala for refund of aforementioned amount of Rs.3 lacs but the same got dishonoured on 14.06.2008 on account of 'insufficiency of funds'. On 19.06.2008 complainant received the returning memo from his banker. Thereafter, complainant sent a legal notice of demand dated 01.07.2008 to the accused by registered A.D. and speed post at Delhi address as well as at Goa address of accused. Accused however, failed to make the payment even after expiry of notice period and same led to filing of aforementioned complaint before Ld. Trial Court where, complainant led pre- summoning evidence, on the basis of which Ld. Trial Court summoned the accused u/s 204 Cr.P.C. vide order dated 04.08.2008. Vide order dated 18.08.2009, Ld. Trial Court served upon the accused a notice u/s 251 Cr.P.C. to which he pleaded not guilty and claimed trial." 4. During the trial, the petition