Delhi District Court
Alka Kaushal vs Gulshan Arora on 21 January, 2023
IN THE COURT OF SH. RAJINDER SINGH
ASJ-06 , NDD, PATIALA HOUSE COURTS, NEW DELHI
Criminal Appeal No. - 136/2020
In the matter of:
Alka Kaushal
W/o Sh. Ravee Kaushal
R/o Bunglow No. 37C, Royal Hills,
C.G.H.S, New Dindoshi Mahada Colony,
Goregaon (E), Mumbai - 400063. ........ Appellant
Versus
Gulshan Arora
S/o Late Sh. R.C. Arora
R/o CB385B, Ring Road,
Naraina, New Delhi - 110028. ........ Respondent
Date of filing of Appeal : 26.11.2020
Date of reserving Order : 15.12.2022
Date of pronouncement of Judgment : 21.01.2023
JUDGMENT
1. The present appeal has been preferred against impugned judgment dated 06.10.2020 and order on sentence dated 28.10.2020 of Ld. MM-03, N.I. Act, New Delhi District, Patiala House Courts, New Delhi. Vide this impugned judgment the appellant (accused) was convicted for the offences punishable under Section 138 N.I. Act. Vide the impugned order on sentence the appellant was directed to pay fine Rs. 30 lakhs and simple imprisonment for 02 years, in default of payment of fine the appellant / accused was further directed to undergo simple imprisonment for a period of 06 months.
1.1 The appellant is the accused and respondent is the complainant in the original proceedings. For the sake of clarity and convenience, parties shall be JUDGMENT Page..... 1/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 referred to by the original nomenclature as mentioned in the original proceedings.
Brief Facts:-
2. In the impugned judgment Ld. Trial Court summarized the facts of the case of follows:-
2.1 The parties shared friendly relations and the complainant provided financial assistance to the accused from time to time for investment in her TV serials and film projects upon assurance that the same shall be repaid by the accused in some time. Against such friendly loan, the accused issued an earlier cheque which upon representation was dishonored and the complainant filed a criminal complaint against the accused. It is pleaded that during such proceedings, the parties entered into a settlement / compromise whereby the accused handed over the present cheque bearing No. 920066 dated 26.12.2009 drawn on ICICI Bank, Goregaon Branch, Mumbai for Rs. 15 lakhs in favour of the complainant. However, upon presentation the said cheque was returned dishonored for reason "insufficient funds" vide return memo dated 31.12.2009.
The complainant sent a legal notice dated 05.01.2010 demanding the amount of the cheque. However, the accused did not make any payment qua the impugned cheque within 15 days of the stipulated period. Therefore, the present complaint under Section 138 of Negotiable Instruments Act, 1881 was filed.
2.2 The complainant filed an application under Section 311 Cr.P.C for taking on record the additional documents. The said application was dismissed by Ld. Trial Court vide order dated 28.08.2020. Thereafter, vide order dated 16.09.2020 Hon'ble High Court granted relief to the complainant and directed that the said said documents may be considered in the present matter. Certified copies of the said documents were filed. The same are Ex. C-1. Thereafter, additional JUDGMENT Page..... 2/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 statement of accused under Section 313 Cr.P.C R/w Section 281 Cr.P.C was recorded.
3. ARGUMENTS:-
3.1 It was submitted on behalf of the appellant that legal demand notice Ex. CW-1/3 dated 06.01.2010 is silent about the compromise upon which the complainant / respondent is relying. In the complaint the complainant mentioned about friendly loan and the compromise. At page no. 85 of the paper book of the appeal file is the order dated 28.08.2020 of Ld. Trial Court whereby application for summoning the documents (as mentioned in para no. 1 of the order) was dismissed. On page no. 92 of the paper book is the copy of order dated 16.09.2020 of the Hon'ble High Court whereby only limited relief was granted to the complainant / respondent. It was held "accordingly, I hereby direct that the Trial Court while pronouncing the judgment, if not already pronounced, shall take into consideration the order dated 20.08.2009 passed in CC No. 2152/1/08 passed by Ld. MM". Mere consideration of some document does not amount to proof of the contents therein. The statement dated 20.08.2009 made before Ld. MM concerned in CC No. 2152/1/08 was admitted.
Ld. Counsel for the appellant further referred to additional statement of accused copy of which is on page no. 96 of paper book (in this regard Ld. Counsel for the appellant was asked by the court whether replies given by the accused in statement under Section 313 Cr.P.C can be considered as evidence against the opposite party i.e the complainant in the present case). No specific reply came in this regard. It was submitted that even in the affidavit of pre-summoning evidence (Ex. CW-1/A) only friendly loan is mentioned. In cross examination dated 28.02.2019 complainant / CW-1 stated that he did not remember about his per month salary for the period 1988 to 1991. Further in cross examination dated JUDGMENT Page..... 3/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 16.04.2019 the complainant / CW-1 mentioned about his family members including siblings and his liabilities / responsibilities including financial liabilities and responsibilities. The complainant further admitted that he did not file any document like bank statement, ITRs etc. to prove his ability to give loan at the relevant time. In cross examination dated 10.05.2019 in response to a particular question the complainant again gave details about his monthly expenses for his children and other family members.
3.2 Ld. Counsel for the appellant referred to the testimony of DW-1 regarding the defence of the appellant. As per DW-1 the appellant repaid the entire loan amount to the said Sh. Prashant Mamgain but he did not return the security cheques and misused the same for filing the cases against the appellant, through his friends and acquaintances like the present complainant. Specific court query was put to the Ld. Counsel for the appellant as to why the appellant repaid the loan to Sh. Prashant Mamgain without getting the said cheques back. No answer came. DW-2 was examined to show that even the complainant's company did not have the financial resources to give loan to the appellant, during the relevant period. The MOU between the appellant and the said Sh. Prashant Mamgain dated 22.07.2002 is Ex. DW-1/1.
3.3 Written submissions filed on behalf of the appellant / accused perused. Ld. Counsel for the appellant relied upon some judgments "Basalingappa Vs. Mudibasappa" (2019) 5 Supreme Court Cases 418, "Gimpex Private Limited Vs. Manoj Goel" 2021 SCC OnLine SC 925 & "Raja Ram S/o Sriramulu Naidu (since deceased) through LRs. Vs. Maruthachalam (since deceased) Through LRs Crl. A. No. 1978 of 2013.
JUDGMENT Page..... 4/14Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 3.4 Ld. Counsel for the complainant / respondent submitted that the signatures of the appellant on the cheques in question are admitted. Accused also admitted that the she was residing at the given address when the notice under Section 138 of N.I. Act was sent. The cheques in question were given in pursuance of settlement in CC No. 2152/1/08 PS Prashant Vihar wherein the present respondent was the complainant and the present appellant was the accused. In this regard certified copy of statement dated 20.08.2009 of the parties recorded before Ld. MM concerned was filed. The compromise deed in this regard is Ex. C-1. Vide order dated 16.09.2020 of the Hon'ble High Court allowed these documents to be taken on record and considered in the present case. In his testimony DW-1 claims that cheques were given to Sh. Prashant Mamgain but the details of the said cheques are not mentioned therein. The appellant claims that the present cheque is out of those cheques given to Sh. Prashant Mamgain but there is no evidence to show that any of the cheques were given to Sh. Prashant Mamgain much less the present cheque in question. There is no explanation why the said security cheques were not taken back from Sh. Prashant Mamgain despite claim of the appellant / accused regarding repayment of the entire loan amount. In the statement dated 20.08.2019 recorded before Ld. MM concerned the appellant gave her statement after hearing the statement of the complainant in which the complainant mentioned about the liabilities. In the MOU Ex. DW-1/1 there is no mention of any cheque numbers allegedly given to the said Sh. Prashant Mamgain. In this regard para no. 26 of the impugned judgment is also to be seen. The appellant has not mentioned about any complaint etc. being given against the said Sh. Prashant Mamgain when he failed to return the said cheques even after having received the payment of entire loan amount. The consideration for issuance of the present cheque was JUDGMENT Page..... 5/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 previous liability and the withdrawal of the previous complaint is also a consideration.
REASONS FOR JUDGMENT:-
4. In the impugned judgment Ld. Trial Court summarized the defences raised by the appellant / accused as follows:-
(a) "Defence of non-receipt of Legal Demand Notice"
(b) "Defence of security cheques"
(c) "Defence of non-existence of legal liability"
In view of the arguments advanced on behalf of the appellant these are the main defences which have taken up in the present appeal as well. However, no specific arguments have been addressed regarding "nonreceipt of legal demand notice". Further, two more points have been raised on behalf of the appellant.
(1) That the complainant and his company did not have the financial capability to give loan during the relevant period.
(2) That in the Legal Demand Notice Ex. CW1/3 there is no mention of compromise as mentioned in Ex. C1 and that the statements and documents Ex. C1 were wrongly considered by the Ld. Trial Court.
(a) "DEFENCE OF NON-RECEIPT OF LEGAL DEMAND NOTICE" 4 (a) (i) In this regard no specific arguments were advanced by the parties.
In para no. 12 of the impugned judgment Ld. Trial Court has comprehensively dealt with this issue. Ld. Trial Court observed that in her plea of defence recorded on 24.05.2013, the accused / appellant submitted that she used to reside at the given address where the legal demand notice was sent, later she shifted JUDGMENT Page..... 6/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 from the said address. The accused did not deny her association with the said address as mentioned on the notice Ex. CW-1/3. The tracking report Ex. CW-1/7 indicates due delivery. Ld. Trial Court further mentioned the judgment "C.C. Alavi Haji Vs. Palapetty Muhammed & Anr." (2007) 6 SCC 555, wherein it was held that even if the accused did not receive the legal notice he can make the payment within 15 days of receipt of summons from the court.
4(a)(ii) In my considered opinion apart from the aforementioned reasons considered by Ld. Trial Court the presumption under Section 27 of General Clauses Act regarding duly sufficiently stamped and correctly addressed letter will also be considered. The onus is upon the appellant / accused to rebut the said presumption. Ld. Trial Court has also made a reference to the presumption to Section 27 of General Clauses Act. It is a matter of record that after receiving summons from the Ld. Trial Court the accused did not offer to make any payment. As such Ld. Trial Court rightly held that defence of "non-receipt of legal demand notice" was not sustainable.
(b) "DEFENCE OF SECURITY CHEQUES" 4(b)(i) In this regard after considering the defence of the appellant /
accused, Ld. Trial Court considered the law laid down in "Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr." Crl. L. P. 558/2014, decided by Hon'ble High Court of Delhi. Ld. Trial Court held that even if the said cheque was issued in favour the said Sh. Prashant Mamgain, the cheque being a Negotiable Instrument has been endorsed in favour of some third party in terms of Section 47 & 48 of the Negotiable Instruments Act. With regard to handing over the blank signed cheque by the accused Ld. Trial Court relied upon the judgments "Ravi Chopra Vs. State" 2008 (2) JCC (NI) 169 & "The Jammu & Kashmir Bank Vs. Abhishek Mittal" Crl. A. NO. 294/2011, decided by the JUDGMENT Page..... 7/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 Hon'ble High Court of Delhi on 26.05.2011. Further with regard to handing over of the said cheque to Sh. Prashant Mamgain in pursuance of MOU dated 22.07.2002 Ex. DW-1/1, it is pertinent to observe that in the said MOU there is no specific mention of any cheque numbers much less the present cheque. In this regard Ld. Trial Court has also made observation in para no. 26 of the impugned judgment there is no specific challenge to this particular observation. I have perused Ex. DW-1/1. There is no mention of any cheque numbers in this memorandum. The accused has also not examined the said Sh. Prashant Mamgain as a defence witness to prove the transaction as mentioned in Ex. DW- 1/1, although DW-1 in his testimony claimed that Sh. Prashant Mamgain was credited as a financial advisor in project i.e T.V. Serial "kho Gayeen Manzilen". It shows that Sh. Prashant Mamgain was allegedly associated with the appellant / accused. Despite such association Sh. Prashant Mamgain was not examined as witness in defence of the appellant / accused.
(c) "DEFENCE OF NON-EXISTENCE OF LEGAL LIABILITY"
&
(1) That the complainant and his company did not have the financial
capability to give loan during the relevant period.
4(c)&(1)(i) In this regard it is the case of the appellant / accused that she has
no liability towards the complainant. The cheque in question was handed over to Sh. Prashant Mamgain vide MOU Ex. DW-1/1. She claims that the entire loan has been repaid to Sh. Prashant Mamgain, as such no legal liability remains.
4(c)&(1)(ii) Ld. Trial Court scrutinized the MOU Ex. DW-1/1. In para no. 26 of the impugned judgment Ld. Trial Court held that in this MOU Ex. DW-1/1 there is no mention of the present cheque in question. I have also perused the MOU Ex. DW-1/1. It does not mention any cheque numbers much less the JUDGMENT Page..... 8/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 present cheque in question. Ld. Trial Court further observed that in the MOU Ex. DW-1/1 Clause No. 5 there is mention of issuance of post dated cheque and not issuance of any blank cheque to Sh. Prashant Mamgain. There is a distinction between a post dated cheque and a blank signed cheque. In my considered opinion post dated cheque would imply that all the particulars are filled and the cheque is signed by the drawer, only the date of cheque is for some future date. Whereas a blank signed cheque would imply that the cheque is only signed by the drawer and rest of the particulars are left blank. The cheque in question bears the name of the complainant as the payee. The other documents i.e Boucher Ex. DW-1/3, Deposit slip Ex. DW-1/4 and transaction summery Ex. DW-1/5 are the only proof that there was some monetary transaction between the accused / appellant and Sh. Prashant Mamgain. The same however does not exclude the possibility of some other transaction between the appellant / accused and the complainant.
4(c)&(1)(iii) Ld. Trial Court rightly observed that the accused has not produced any evidence to say that she ever demanded back the said signed cheques from Sh. Prashant Mamgain, upon repayment of the said loan. The accused / appellant is silent whether Sh. Prashant refused to return the said cheque even after receiving the repayment of entire loan amount. There is no mention of any civil or criminal proceedings being initiated against the said Sh. Prashant Mamgain regarding any refusal to return the said cheques even after receiving repayment of entire loan amount. Ld. Trial Court observed that this is the situation despite the accused stated in her additional statement under Section 313 Cr.P.C R/w Section 281 Cr.P.C that Sh. Prashant intimidated her and coerced her to enter into settlement. Ld. Trial Court further observed that in "V. S. Yadav Vs. Reena" 2014 SCC Online Del 107, Hon'ble High Court held that if the accused wants to prove his / her contention as raised in the statement under Section 313 JUDGMENT Page..... 9/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 Cr.P.C R/w Section 281 Cr.P.C, the accused has to appear in witness box and offer himself or herself for cross examination.
4(c)&(1)(iv) Mere averments in statement under Section 313 Cr.P.C R/w Section 281 Cr. P.C cannot take place of evidence since such averments are not subjected to cross examination.
4(c)&(1)(v) Ld. Trial Court further observed that the accused / appellant has consistently denied having any association with the complainant however in view of the certified copies Ex. C-1 it is clear that CC No. 2152/1/08 titled as "Gulshan Arora Vs. Alka Kaushal" was filed by the complainant and the parties recorded their statements of compromise in the said complaint case. In fact in the statement dated 20.08.2009 of the complainant recorded before Ld. MM concerned the cheque number and other particulars of the present cheque in question are mentioned. Ld. Trial Court observed that through out the trial the accused was silent regarding this compromise. Ld. Trial Court rightly observed that in view of the documents Ex. CW-1/1 the defence submitted by the accused stands invalidated.
4(c)&(1)(vi) The appellant / accused relied upon the judgment "Lalit Kumar Sharma & Anr. Vs. State of U.P & Anr." (2008) 5 SCC 638 & "Thakur Arora Vs. State & Anr." (2009) SCC Online Del 403, and argued that the cheque given in pursuance of settlement / compromise upon dishonour do not give rise to a fresh cause of action. Ld. Trial Court observed that in "Lalit Kumar Sharma & Anr. Vs. State of U.P. & Anr." (Supra) the original complaint where the parties compromised the matter was pending when the second complaint was filed. In the present case the previous complaint was already withdrawn. In "Thakur Arora Vs. Stae & Anr." (Supra) the parties in JUDGMENT Page..... 10/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 their MOU agreed that in case the cheque given in settlement was dishonoured, the MOU shall come to an end and the matter shall continue. Therein despite dishonour of certain cheques Ld. Trial Court disposed of the original complaint. It was in such circumstances that the revival of previous complaint was allowed. In the present case the previous complaint has already been withdrawn. The parties have entered into afresh agreement i.e compromise deed dated 11.08.2009 and subsequently gave their statements dated 20.09.2008 before Ld. MM concerned. Vide the compromise dated 11.08.2009 the present complainant promised to withdraw the complaint upon the consideration of Rs. 15 lakh being paid by the accused to the complainant through a post dated cheque.
4(c)&(1)(vii) Ld. Trial Counsel further held that in the present case the complainant fulfilled his part of promise by withdrawing the complaint whereas the accused / appellant did not perform her part of contract and failed to make the payment for the said cheque. Ld. Trial Court rightly held that the liability of the appellant / accused in the present case is not with regard to the previous debt but with regard to the undertaking given in pursuance of statement dated 20.08.2009 given before the Ld. MM concerned. The consideration for the cheque in question was the compromise deed dated 11.08.2009 and the withdrawal of the previous complaint bearing CC No. 2152/1/08. Ld. Trial Court rightly held that in such circumstances the financial capability of the complainant to advance a friendly loan is of no consequence.
(2) That in the Legal Demand Notice Ex. CW1/3 there is no mention of compromise as mentioned in Ex. C1 and that the statements and documents Ex. C1 were wrongly considered by the Ld. Trial Court.
JUDGMENT Page..... 11/14Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 4(2)(i) Another point raised by the Ld. Counsel for the appellant / accused was that in the legal demand notice Ex. CW-1/3 there is no mention of compromise as mentioned in documents Ex. C-1. It was further contended that the documents Ex. C-1 were wrongly considered by the Ld. Trial Court.
4(2)(ii) I have perused the legal demand notice Ex. CW-1/3. In this legal demand notice there is no mention of the compromise deed dated 11.08.2009 and the statements dated 20.08.2009 of the parties. However, the cheque number and other particulars of cheque in question are specifically mentioned therein. It has been already observed above that the number of cheque in question and other particulars are specifically mentioned in the statement dated 20.08.2009. As such the mention of cheque number and other particulars of the cheque in question would be presumed to be sufficient notice to the accused regarding background in which the said cheque was issued. In para no. 1 of the notice Ex. CW-1/3 it is specifically mentioned that this cheque was issued in discharge of legally enforcible liabilities. In pre-summoning evidence complainant / CW-1 specifically mentioned regarding compromise and issuance of the present cheque in question. The purpose of sending written notice in terms of Section 138 of N.I. Act is to give the accused a clear idea of the liability and the cheque for which the complainant is claiming the payment. The contents of legal demand notice Ex. CW-1/3 were sufficient to give the accused a clear idea of the liability for which the complainant was seeking payment.
4(2)(iii) In the complaint the complainant is only required to mention facta- probanda. It is in evidence that facta-probantia will be produced.
4(2)(iv) It is the contention of the appellant / accused that the documents Ex. C-1 regarding the compromise of the previous complaint were wrongly considered. In this regard the application of the complainant for taking on record JUDGMENT Page..... 12/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 the said documents was dismissed by Ld. Trial Court. Thereafter, vide order dated 16.09.2020 the Hon'ble High Court only granted limited relief to the complainant and the Ld. Trial Court was directed to take into consideration the order dated 20.08.2009 of Ld. MM in CC No. 2152/1/08. In the written submissions filed by the appellant / accused the meaning of the word "consider" has been discussed. It is stated that to "consider" means "to give careful thought" or "careful thinking" but the source of this interpretation is not mentioned. In my considered opinion vide order dated 16.09.2020 Hon'ble High Court allowed the Ld. Trial Court to "consider" the document. It is understood that anything produced before the court is to be considered only in terms of relevant provisions of law. In my considered opinion these documents Ex. C-1 including statement dated 20.08.2009 and the order made by the Ld. Trial Court therein are relevant for proving the fact that the cheque in question was in fact given by the appellant / accused to the complainant, since specific cheque number is mentioned therein. By virtue of this, the defence of the accused / appellant regarding giving of post dated cheques including the present cheque in question to Sh. Prashant Mamgain and the subsequent misuse of the said cheques is falsified.
4(2)(v) The document Ex. C-1 are a part of judicial proceedings. Court can take judicial notice of judicial proceedings held in some other case, if the same are relevant for the purpose of the matter at hand. Both the present parties were the parties in the said complaint bearing CC No. 2152/1/08. The appellant / accused cannot claim any prejudice on account of these documents being considered by the Ld. Trial Court since these documents and the proceedings before the Ld. MM concerned were very much within the knowledge of the appellant / accused even before filing of the present complaint . On the contrary JUDGMENT Page..... 13/14 Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020 the complainant concealed the facts regarding the withdrawal of the previous complaint recorded therein.
4.3 In view of the above, it is held that the Ld. Trial Court considered the documents Ex. C-1 in legally appropriate manner.
5. In view of the above discussion this court does not find any legal infirmity in the impugned judgment and order on sentence, warranting any interference.
6. The present appeal is dismissed.
7. Copy of this order be sent along with TCR.
8. Appeal file be consigned to record room after due compliance.
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 21.01.2023 ASJ-06/NDD/PHC/NEW DELHI
JUDGMENT Page..... 14/14
Alka Kaushal Vs. Gulshan Arora Criminal Appeal No. 136/2020