Delhi District Court
Karamveer vs . Wazir Singh on 17 December, 2022
Crl. Appeal No. 99/2021
Karamveer Vs. Wazir Singh
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ASJ-05, PATIALA HOUSE COURT,
NEW DELHI DISTRICT, NEW DELHI
Crl. Appeal No. 99/2021
Karamveer Vs. Wazir Singh
Karamveer
S/o Sh. Pratap Singh
R/o Village- Budhakhera Lathar
Tehsil- Julana, Distt- Jind
Haryana-126101
Versus
Sh. Wazir Singh
S/o Late Sh. Mahender Singh
R/o RZ-997 B/F-132, Gali No. 38
Sadh Nagar-II, Palam Colony, New Delhi-110045
Date of filing of Apeal : 01.12.2021
Date of arguments : 24.11.2022
Date of Judgment : 17.12.2022
Appearances: Sh. Mohit Siwach, Ld.counsel for appellant.
Sh. Onkar Roy, Ld. Counsel for respodnent
along with respodnent.
JUDGMENT:
1. This is an appeal under Section 374 against the judgment dated 04.09.2021 passed by Sh. Himanshu Sehloth, Ld. Metropolitan Magistrate (NI Act -01), New Delhi District, PHC, New Delhi and the order on the point of sentence dated 16.10.2021, passed by Sunil Khatri, Ld. Metropolitan Magistrate-01, New Delhi District, PHC, New Delhi in complaint case bearing no. 12634/2018.
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2. Arguments on the present appeal advanced by Sh. Mohit Siwach, Ld.counsel for the appellant and Sh. Onkar Roy, Ld.counsel for the respondent already heard. Record perused.
3. In this appeal the appellant stopped appearance and even despite service of notice the appellant has fails to appear, therefore, in compliance of directions of Hon'ble Supreme Court in case K. Muruganandam & ors. versus State Rep. by the Deputy Superintendent of Police & anr., Criminal Appeal no. 809/2021 (Arising out of SLP(Crl.) no. 5690/2021) decided on 12.08.2021, reported as Live Law 2021 SC 384, this court was constrained to proceed with the hearing of appeal in the absence of the appellant/convict in presence of his counsel.
4. Brief Facts: A complaint case under Section 138 of the Negotiable Instrument Act was filed on 24.01.2022 by the respondent/complainant against the appellant/accused. It is alleged that the applicant/accused approached the respondent/complainant for a loan of Rs. 27,00,000/- on the pretext that he was in dire need of money and promised to repay the same to the respondent within a period of two months. On account of the friendly relations between the brother-in-law and the accused, the respondent advanced a sum of Rs. 27,00,000/- to the applicant/accused as a friendly loan but the same was not repaid even after lapse of two years. Thereafter, after repeated requests and negotiations, the accused handed over five post dated cheques of Rs. 2,00,000/- each. However, upon presentation the said cheques were returned unpaid for the reason 'funds insufficient' vide return memo dated 14.06.2018. Thereafter the complainant sent Page no.2 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh the legal notice dated 03.07.2018 but the accused had fails to make the payment. Hence, the complaint under Section 138 of Negotiable Instrument Act was filed.
5. Ld. Trial Court was pleased to summon the accused. The notice under Section 251 Cr. PC for commission of offence punishable under Section 138 of Negotiable Instrument Act was served to which the appellant/accused pleaded not guilty and claimed trial. The complainant examined himself as CW-1 and after recording statement, the complainant's evidence was closed. Statement of the accused under Section 313 Cr. PC was also recorded on 30.11.2019. Thereafter vide order dated 27.02.2020, opportunity to lead defence evidence was closed. The Ld. Trial Court after conclusion of trial was pleased to convict the appellant/accused vide judgment dated 04.09.2021 for commission of offence punishable under Section 138 NI Act and sentenced him to pay fine of Rs.20,00,000/- under Section 138 of Negotiable Instrument Act, to be paid to the complainant as compensation and additionally undergo simple imprisonment for three months. In default of payment of fine amount, the convict shall further undergo simple imprisonment for a period of three months, vide order dated 16.10.2021.
6. The appellant/accused being aggrieved by the order of conviction and sentence has filed the present appeal and challenged the impugned judgment and order on sentence. It is stated that the Ld. Trial Court has fails to appreciate the fact that the complainant has taken the cheque in question forcibly from the appellant. It is further stated that no single document was placed on record by the Page no.3 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh respondent which supports his case or evidence that alleged loan was ever advanced to the appellant. It is further stated that respondent after retirement approached the petitioner for investing his retirement funds in real Estate in Haryana and on request of the respondent, petitioner offered number of properties to the respondent and finally respondent agreed to purchase two properties from the petitioner in Jind and Bhiwani. It is further stated that registered sale deed for the property situated in Distt- Bhiwani could not be done due to some state ban on registry of properties situated in unapproved area. It is further stated that the cheques were issued by the petitioner to the respondent on the condition that when the property got transferred/registered in name of respondent than the respodnent will return the said cheques. It is prayed that in view of grounds of appeal, impugned judgment may kindly be set aside.
7. Notice of the appeal was issued to the respondent/complainant who appeared through his counsel and strongly opposed the appeal. It is submitted that there is no merit in the appeal and therefore, the same may kindly be dismissed.
8. On the other hand it is submitted by Ld.counsel for the appellant that in view of grounds of appeal, the impugned judgment and order on sentence are not sustainable in the eyes of law. That the Ld. Trial Court has passed the impugned judgment contrary to the provisions of law. It is prayed that the appeal may kindly be allowed.
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9. Written submissions on behalf of appellant also filed. The Ld. Counsel for the appellant/convict has relied upon following judgments in support of his submissions:-
(i) Sanjay Mishra v. Ms. Kanishka Kapoor @ Nikki & Anr,
(ii) Nutan Kumar Vs. 2nd Additional District Judge, Banda, AIR 1994 ALL 298.
(iii) Kulvinder Singh VS. Kafeel Ahmad & K Prakashan Vs. P. K. Surenderan.
(iv) G. Pankajakshi Ammma and others Vs. Mathai Mathew (v) Devender Kkumar Vs. Khem Chand (vi) Virender Singh Vs. Deepak Bhatia. (vii) Nanda Vs. Nandkishor (viii) Sharad Bidichand Sarda Vs. State of Maharastra (ix) Trilok Chand Jain Vs. State of Delhi.
10. The complainant has filed the complaint for commission of offence punishable under Section 138 of the Negotiable Instrument Act, against the appellant/convict. The complainant has placed on record the impugned cheques Ex. CW1/2(colly, five cheques) and its cheque returning memo Ex. CW1/3 and the legal notices alongwith the postal receipts Ex. CW1/5 and Ex. CW1/6. The accused at the time of serving of notice under Section 251 Cr. PC has admitted the cheques Ex. CW1/2(colly), its presentation in the bank for encashment and subsequent dishonor due to reason having insufficient funds and cheque return memo Ex. CW1/3 dated 14.06.2013. The accused has categorically admitted his signatures on cheques Ex.
CW1/2(colly, 5 cheques of Rs.2 lacs each) at the time of service of notice under Section 251 Cr. PC and in his statement under Section 313 Cr. PC and has not disputed the same during the course of trial. The accused has also admitted the receipt of the legal notice Page no.5 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh Ex. CW1/5 at the time of notice under Section 251 Cr. PC. Even though the accused has denied his liability to pay the amount of cheque on the ground that he had entered into agreement with the complainant regarding a plot and had given the cheques as security to the complainant, which have been wrongly presented by the complainant.
11. In the appeal it is stated that the Ld. Trial Court has fails to appreciate the fact that the complainant has taken the cheque forcibly from the appellant/complainant. The appellant/convict neither at the time of service of notice nor in his statement under Section 313 Cr. PC or during the cross-examination of any of witnesses has put this defence. The appellant/convict has raised this defence only during the course of appeal, however, no material on record is produced to support this submission. Therefore, in the absence of any material, this contention is nothing except a bald defence raised by the accused, which is not sustainable in the eyes of law.
12. The appellant/convict has alleged that there was one transaction with regard to the plot between the complainant and the accused and the cheques in dispute were given as security to the complainant, which has been misused. The Ld. Trial Court on the basis of settled case law has come to the conclusion that when the issuance of cheque, under his signatures has been admitted by the accused, the onus would be still on the accused to prove that the chques in question were not in discharge of debt or liability, by adducing the evidence. Reliance in this regard is placed upon the Page no.6 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh judgment of Hon'ble Apex Cort in Bir Singh v. Mukesh Kumar(Crl. Appeal no.230-231/189 dated 06.02.2019).
13. Hon'ble Delhi High Court in Credential Leasing and Credits Ltd. Vs. Shruti Investments 223(2015) DLT 343 has held that even a security cheque can form the basis of complaint under Section 138 of the Negotiable Instrument Act.
14. The Ld. Trial Court has rightly observed that with regard to property transaction the appellant/accused was required to show that he got the property in question registered and thus there was no liability qua the impugned cheques. However, in his statement under Section 313 Cr. PC the accused has merely made a bald averment in this regard stating that the property in question was registered, but fails to adduce any evidence or bring the said document of registration of property on record. It is well settled that mere the statement of the accused under Section 313 Cr.PC can not be read as evidence. Where the accused does not examine himself as a witness, despite having the opportunity to do so, the same can not be read as evidence of the accused, therefore, the Ld. Trial Court in the absence of any evidence produced by the accused has rightly come to the conclusion that the accused has fails to prove his defence.
15. The appellant/convict has also raised the contention with regard to source of the funds alleged by the complainant. The Ld. Trial Court has right discarded the defence with regard to source of funds with detailed reasoning and I am in agreement with the Page no.7 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh reasonings given by the Ld. Trial Court in this regard because the complainant has satisfactorily explained in his evidence his solvency.
16. The appellant/convict has also stated that there are discrepancy in the version of the complainant with regard to the amount, time of loan and source of funds. It is well settled that minor discrepancies in evidence can not be a ground to discard the prosecution version. Court can not be blind to the realities and has to give consideration to the fact that both the parties belong to rustic background, therefore, minor discrepancies can happen. On this issue I have relied upon the judgment of Hon'ble Supreme Court in case State of Rajasthan Vs. Smt. Kalki & Anr.(1981) 2 SCC 752, Sunil Kumar Sambhudayal Gupta and others Vs. State of Maharashtra and State of UP Vs. Anil Singh, AIR 1988 SC 1998.
17. It is also submitted that in view of Section 269 SS and Section 269 ST of the Income Tax Act, the transaction of more than Rs.20,000/- is prohibited in cash. That in the present case the alleged loan was given in violation of Income Tax Act, therefore, there could not be cause of action to prosecute the appellant/convict. The law with regard to effect of section 269SS and 269 ST of the Income Tax Act is already settled. Hon'ble Delhi High Court in case Sheela Sharma v. Mahendra Pal, 2016 SCC online Delhi 4696 and Dilip Chawla V. Ravinder Kumar, 2017 SCC Online Del 9753 has clearly held that the breach of Section 269 of the Income Tax Act does not make such transaction null and void. The mere advancement of the loan in cash, may entail consequences for the party acting in breach of Section 269 SS of the Income Tax Act but does not make the transaction void. The Page no.8 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh violation of this section has not barred prosecution of the accused for commission of the offence punishable under Section 138 of the Negotiable Instrument Act.
18. Ld.counsel for the appellant/convict has also raised the contention with regard to application of Section 3 of the Punjab Registration of Money Lenders Act, 1938. However, in the absence of any positive evidence led by the appellant/convict to fulfill the necessary ingredient of application of Registration of Money Lenders Act, this contention is not tenable in the eyes of law.
19. The Ld. Trial Court has dealt with all the contentions and defences raised by the accused at length and I am in agreement with the observation made by the Ld. Trial Court as the same are in consonance with the settled provisions of law. The appellant/convict could not point out any illegality or infirmity tenable in the eyes of law against the impugned judgment dated 04.09.2021 passed by Ld. Trial Court.
20. In view of the above discussions the conviction of the appellant/convict Karamveer for commission of offence punishable under Section 138 of the Negotiable Instrument Act for dishonor of cheques no.053592, 053593, 053594, 053595 and 053596 all dated 30.05.2018 drawn on State Bank of India, Julana Branch for a sum of Rs.2,00,000/- each is upheld.
21. On the point of sentence it is submitted by Ld.counsel for the appellant/convict that the Ld. Trial Court has taken a very strict Page no.9 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh view. It is submitted that in view the family circumstances and age of appellant, a lenient view may kindly be taken.
22. On the other hand it is submitted by Ld.counsel for the complainant that the appellant has already been convicted for the offence punishable under Section 138 NI Act and the Ld. Trial Court after considering the material on record has rightly sentenced the accused for fine of Rs.20,00,000/- under Section 138 of Negotiable Instrument Act to be paid to the complainant as compensation and additionally undergo simple imprisonment for three months. In default of payment of fine amount, the convict shall further undergo simple imprisonment for a period of three months.
23. The perusal of order on sentence would reveals that the Ld. Trial Court has already taken a lenient view. Therefore, no further interference is required. The complainant has suffered for his hard earned money since 2018. Therefore, the order on sentence is also upheld and the appellant/convict is sentenced as under:
Fine of Rs.20,00,000/- under Section 138 of Negotiable Instrument Act to be paid to the complainant as compensation within four weeks and additionally undergo simple imprisonment for three months. In default of payment of fine amount, the convict shall further undergo simple imprisonment for a period of three months.
24. In view of aforesaid discussions, the present appeal under Section 374 against the judgment dated 04.09.2021 passed by Sh. Himanshu Sehloth, Ld. MM, Patiala House Courts, New Delhi District and the order on the point of sentence dated 16.10.2021, passed by Sh. Sunil Khatri, Ld. Metropolitan Page no.10 of total 11 Crl. Appeal No. 99/2021 Karamveer Vs. Wazir Singh Magistrate, New Delhi District, PHC, New Delhi is dismissed. The judgment of conviction dated 04.09.2021 and order on sentence dated 16.10.2021 passed by Ld. Trial Court is upheld.
25. The appellant/convict Karamveer has fails to appear before this court. Copy of this judgment be sent to Ld. Trial Court to secure presence of the appellant/convict Karamveer and serve the sentence.
26. Appeal file be consigned to record room after necessary compliance.
Announced in the open Court on dated 17.12.2022 (Devender Kumar Jangala) Additional Sessions Judge-05 New Delhi District, PHC, New Delhi Page no.11 of total 11