A cheque issued for payment in a contractual context constitutes a debt under Section 138 of the Negotiable Instruments Act even if characterized as a penalty, and deemed service of notice is valid when refused by the addressee.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. This appeal under Section 374 read with 482 of the Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed by the accused in Complaint Case No.317/2002 on the file of the Additional Sessions Judge, Delhi, assailing the judgment dated 18.07.2003 as per which he has been convicted and sentenced for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(the N.I Act).

2. The respondent herein filed a complaint alleging the commission of the offences punishable under Section 138 of the NI Act before the Chief Metropolitan Magistrate, Delhi. On going through the trial records, I find order dated 11.04.2002 of the learned Magistrate which reads thus:-

“Vide order/letter/reference F.3(4)/ADJ/19884-19884/1173 dt. 21.3.2002of Office of Ld. Distt. And Sessions Judge, Delhi, in pursuance to Delhi High Court letter No. 336/Gaz/VI.E.2(a)/Misc. dated 15.03.2002, the complaint is transferred to the Court of Ms. Deeps Sharma, Ld. Addl. Sessions Judge, Delhi. Party(ies) are directed to appear before the Court of Ms. Deepa Sharma, Addl Sessions Judge, Delhi, today.

Sd.

Metropolitan Magistrate, Delhi”

3. Letter no. 336/Gaz./VI.E.2(a)/Misc referred to reads:

“MOST IMMEDIATE AT ONCE

CONFIDENTIAL

No._ 336 /Gaz./VI.E.Z(a)/Misc.

From:

The Registrar (Vigilance)

High Court of Delhi New Delhi.

To The District & Sessions Judge Delhi.

New Delhi, dated, the 15 March, 2002

Sub:

Regarding expeditious Section disposal of cases under 138 Negotiable Instruments Act

Sir,

I am directed to refer to your letter No.141/Stt./Crl. dated 8.1.2002 on the above subject, and to say that Hon’ble the Chief Justice and Hon’ble Judges of this Court have been pleased to decide that all the cases triable under Section 138 of the Negotiable Instruments Act, pending as on 31.12.2001 in the Courts of various Metropolitan Magistrates in Tis Hazari Court, Patiala House Court andKarkardooma Court, bewithdrawn Court and transferred to the Courts of Additional District andand Sessions Judges as follows: -

TIS HAZARI:

Mr. Rakesh Kapoor

Mr. R.S. Arya

Mr. S.N. Gupta

Mr. Satnam Singh

Mr. T.D. Keshav

Mr. S.L. Bhayana

Mr. P.C. Ranga

Mr. R.K. Sharma

Mr. Gurdeep Kumr

Ms. Deepa Sharma

Mr. Mahavir Singhal

MR. I.S. Mehta

Mr. M. S. Sabharwal

Mr. M.L. Mehta PATIALA HOUSE:

Mr. Ina Malhotra

Mr. Yogesh Khanna

Mr. Rakesh Kumar

Mr. N.K. Kaushik

Mr. S.N. Dhingra

Mr. P.K. Bhasin

Mr. Babu Lal

Ms. Mamta Sehgal

Mr. H.S. Sharma

Mr. J.R. Aryan

Mr. C.K.Chaturvedi KARKARDOOMA:

Mr. J.P. Singh

Mr. S.C. Mittal

Mr. S.C. Mittal

Mr. D.C. Anand

Mr. O.P. Gupta

Mr. G.D. Dhanuka

Mr. J.M. Malik

Their Lordships have further been pleased to order that you may distribute such cases amongst the Additional District and Sessions Judges in equal number as practicable. However, Mr.C.K.Chaturvedi will be given lesser number of cases.”

I am, therefore, to request you to kindly take necessary action in the matter under intimation to this Court.”

(Emphasis Supplied)

4. In compliance with the aforesaid order, the case was transferred to the court of the Additional Sessions Judge, who conducted the trial of the case and passed the impugned judgment. The parties in this appeal will be referred to as described in the complaint.

5. In the complaint filed alleging the commission of the offence under Section 138 of the NI Act, it is alleged thus:- The complainant and the accused entered into an agreement dated 14.01.2000 for the purchase of the property of the latter. On 12.01.2000, an amount of Rs.51,000/- was paid as earnest money, for which the accused issued a receipt. When the agreement was executed, the complainant paid an amount of Rs.4,50,000/-to the accused towards sale consideration. Thus, the accused received a total amount