Delhi District Court
This Appeal Is Directed Against The ... vs Baby & Ors.) Within A Period Of 60 Days. In ... on 13 May, 2014
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS
JUDGE5 (SOUTH), SAKET COURTS, NEW DELHI
Crl. Appeal No. 01/14
ID No. 02406R0203832013
Rajesh Berry
Vs.
Genesis Educational Foundation
O R D E R
1. This appeal is directed against the judgment dt. 27.06.13 whereby appellant has been convicted under section 138 Negotiable Instrument Act and order dt. 08.07.13 whereby appellant has been sentenced to rigorous imprisonment for a period of two years and has been further directed to pay compensation of Rs. 11.20 lacs (cheque amount plus simple interest @ 9% p.a. in terms of dicta of Apex Court in R.Vijayan Vs. Baby & Ors.) within a period of 60 days. In default, appellant has been ordered to undergo simple imprisonment for six months.
2. Appellant died during the pendency of appeal and the death of appellant was verified by SHO PS Malviya Nagar. Original death certificate has been filed by police on the record. After the death of appellant, the question before the court in the appeal was as to whether 1/31 Rajesh Berry Vs. Genesis Educational Foundation the appeal abates on the death of appellant Rajesh Berry during pendency of appeal. Another question thrown up in the submission of appellant as well as ld. Counsel for respondent was as to whether appeal is directed against the order whereby appellant is sentenced to imprisonment and fine or appeal is directed against the order of sentence of imprisonment and compensation.
3. Arguments on these two issues were heard. This Court vide order dt. 20.03.14 held that appeal does not abate on the death of appellant, even if appeal is against order of sentence of imprisonment and award of compensation. It was further held that present appeal so far as challenges awarding of compensation by learned Metropolitan Magistrate to appellant does not abate and will continue. The order dt. 20.03.14 was set aside by Hon'ble High Court vide order dt. 28.04.14 for the limited purpose of enabling the third legal heir of deceased appellant to argue the appeal before this Court. Hon'ble High Court directed that this Court after composite hearing, shall pass a composite order both on the merits of the appeal as also on the sentence including the provision of Section 394 Cr.PC within two weeks from the day following the date of passing of the said order.
4. Section 394 Code of Criminal Procedure is being reproduced herein under for convenience :
"(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
2/31 Rajesh Berry Vs. Genesis Educational Foundation (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate."
5. It is not rest integra that the appeal against a composite order of sentence of death or of imprisonment and fine does not abate on the death of appellant during pendency of appeal. It is to be noted that Section 394 Code of Criminal Procedure corresponds to Section 431 Code of Criminal Procedure 1898 (in short - old code).
6. In AIR 1975 SC 236 - Harnam Singh Vs. The State of Himachal Pradesh, it was held in para 10 as under :
" The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purpose of S. 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not 3/31 Rajesh Berry Vs. Genesis Educational Foundation for that reason cease to be an appeal from a sentence of fine. It is something more than less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word 'only'. To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word 'only' which is not there and which, not no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused 'except an appeal from a sentence of fine'. The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence.
7. In 2004 Crl. L.J. 2565 (Karnataka High Court) - P.R. Anjanappa Vs. M/s. Yurej Agencies Pvt. Ltd. , it was held in para 9 as under :
4/31 Rajesh Berry Vs. Genesis Educational Foundation " This observation and the law laid down by the Apex Court answers the query raised by the learned Counsel for the petitioner. The word 'only fine' cannot be imported wherever the sentence is of composite nature. When both the sentences are practically as observed, are said to be separable ones and there is nothing like composite sentence. As such, in my view, wherever there is sentence of substantive nature as well as sentence of fine is imposed, it cannot be termed as composite sentence simpliciter so as to pronounce the abatement of entire appeal by virtue of death of the appellant. As such, it is open for the successors of the deceased appellant/accused to come on record or get substituted themselves and contest the appeal and get both conviction as well as fine imposed set aside."
8. In (2006) 5 SCC 683 State of A.P. Vs. S.Narasimha Kumar & Ors., the Hon'ble Supreme Court quoted with approval the observations made in Harnam Singh's case (supra). Hence if in the judgment under appeal, sentence of fine is imposed in conjunction with sentence of imprisonment, appeal against imposition of fine will not abate irrespective of death of appellant during pendency of appeal.
The relevant portion of order dt. 08.07.13 passed by the learned Metropolitan Magistrate is being reproduced herein as under :
"Considering the facts and circumstances of the case, convict is sentenced to rigorous imprisonment for a period of two years and 5/31 Rajesh Berry Vs. Genesis Educational Foundation further directed to pay a compensation of Rs. 11 Crores and 20 lacs ( cheque plus simple interest @ 9% per annum in terms of dicta of Apex Court in 'R.Vijayan Vs. Baby & Ors. SC Crl. Appeal No. 1902 of 2011) within a period of 60 days from today to the complainant. In default of payment, the convict shall further undergo simple imprisonment for six months."
9. Mr. M.A. Niyazi, learned Counsel for respondent contended that though the learned Metropolitan Magistrate has used the word compensation, but infact learned Metropolitan Magistrate has proceeded under Section 357(1)(b) Code of Criminal Procedure and hence the sentence awarded in this case is a sentence of imprisonment and fine. Mr. Vijay K. Gupta, learned Counsel for appellants argued that it was simple sentence of imprisonment coupled with direction to pay compensation. Hence, according to him, the appeal finally abates on the death of appellant in view of section 394(2) Code of Criminal Procedure.
10. It is seen that learned Metropolitan Magistrate has awarded compensation to the respondent in terms of dicta of Apex Court in (2012) 1 Supreme Court Cases 260 - R.Vijayan Vs. Baby & Anr. In this case ld. Magistrate after convicting the accused u/s. 138 N.I. Act sentenced her to pay fine of Rs. 2000/ and in default to undergo imprisonment for one month. Accused was also directed to pay Rs. 6/31 Rajesh Berry Vs. Genesis Educational Foundation 20,000/ as compensation to the complainant and in default to undergo simple imprisonment for three months. The first respondent challenged the said judgment and the criminal appeal filed by her allowed by the First Additional Sessions Judge, Thiruvananthapuram whereby the conviction and sentence imposed on the first respondent was set aside and the appellant was acquitted. The appellant filed criminal appeal before Hon'ble High Court and Hon'ble High Court allowed the appeal in part. It was held by Hon'ble High Court that it could only restore the fine of Rs. 2000/ imposed by the Magistrate with the default sentence but not the direction for payment of compensation under Section 357 (3) of the Code, as it could not coexist with the imposition of fine. The order of Hon'ble High Court was upheld by the Hon'ble Supreme Court in this case. After upholding the order of Hon'ble High Court, the Hon'ble Supreme Court while discussing various issues concerning the litigation under section 138 N.I. Act held that as the provision of Chapter XVII of N.I. Act strongly lean towards grant of reimbursement of the loss by way of compensation, the Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount 7/31 Rajesh Berry Vs. Genesis Educational Foundation as compensation.
11. While awarding compensation, learned Metropolitan Magistrate did not mention Section 357 (3) Code of Criminal Procedure. However, learned Metropolitan Magistrate awarded compensation of Rs. 11 Crores and 20 lacs (cheque plus simple imprisonment @ 9% per annum) in terms of dicta of Apex Court in R.Vijayan's case (supra).
12. Mr. Vijay K. Gupta, learned Counsel for appellants submitted that the judgment given by the Hon'ble Supreme Court in R.Vijayan's case (supra) was relied upon by learned Metropolitan Magistrate only for the purpose of calculation of the amount of compensation. The Court is unable to agree with the submission of learned Counsel for appellant. It is clear from bare perusal of the order dt. 08.07.13 passed by the learned Metropolitan Magistrate that while awarding compensation, learned Metropolitan Magistrate was completely guided by the aforesaid direction of Hon'ble Supreme Court contained in para 18 of the judgment. In other words, although, the learned Metropolitan Magistrate, has used the word compensation in the impugned order dt. 08.07.13, infact, learned Metropolitan Magistrate has proceeded under section 357 (1)(b) of Code of Criminal Procedure and has infact imposed fine on the appellant.
13. At this stage, it will be advantageous to note the observation made and the legal proposition laid down by Hon'ble Kerala High 8/31 Rajesh Berry Vs. Genesis Educational Foundation Court in Raghavan Nair Vs. Shaji George. In this case it was held as under :
" The mode of recovery of compensation under Section 357 (3) is as envisaged for the recovery of the amount of fine under the provisions of the Criminal Procedure Code. So it can safely be said that there is a conviction whereby there is a sentence of imprisonment and also for payment of money in the form of a compensation which can be realized by resorting to the method contemplated under the Criminal Procedure Code for recovery of fine. So even if extended principles of 394 is applied there cannot a total abatement of the Criminal Revision Petition."
14. Mr. M.A. Niyazi, learned counsel for respondent argued that there is no difference or distinction between a sentence of fine and a sentence for payment of compensation as both can be enforced by resorting to Section 421 Cr.PC or by awarding default sentence. Learned Counsel for respondent further argued that when there is no difference between the sentence of fine and sentence for compensation, for the purpose of their enforceability, no distinction can be read between them to interpret Section 394 Cr.PC. This submission of learned counsel for respondent is legally correct in view of the law laid down in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. & Anr. (2007) 6 Supreme Court Cases 528.
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15. Mr. Vijay K. Gupta, learned Counsel for appellant argued that aforesaid observations were made by Kerela High Court in criminal revision petition and same will not apply to the facts of this case. Section 394 Code of Criminal Procedure has been discussed by the Hon'ble Kerala High Court in the aforesaid judgment and same are applicable to the facts of this case and are binding on this Court.
16. Mr. M.A. Niyazi, learned counsel for respondent submitted that one of the conditions for grant of bail to appellant was that he will deposit the cheque amount before the trial Court. The said condition was waived by the Hon'ble High Court as same was not pressed by learned counsel for respondent. Mr. M.A. Niyazi, learned counsel for respondent submitted that if the cheque amount had been deposited in this case, in that situation, after the death of appellant, the cheque amount would have been released either to the legal heirs of appellant or to respondent as the cheque amount cannot be kept by the trial Court forever. It implies that appeal would not have abated and the cheque amount would have been released depending upon the order that would have been passed in the appeal. The Court finds substance in this submission of learned counsel for respondent. If the appeal would not have been abated in the eventuality of the cheque amount having been deposited before the trial Court by the appellant before his death, there is no reason why the appeal should abate, in the present situation when the cheque amount has not been deposited by appellant. Infact similar 10/31 Rajesh Berry Vs. Genesis Educational Foundation situation also arose in K. Gopalakrishan Nair Vs. The J.F.C. M. (supra).
17. The law on the abatement of appeal was further crystallized by Hon'ble Kerela High Court in K. Gopalakrishan Nair Vs. The J.F.C. M. decided on 11.02.08, wherein it was held in para 8 as under :
" Hence, it can be seen that a sum of Rs. 17,500/ has already been deposited by the deceased appellant/accused before the Court below and if the appeal decides on merit and if the same is in favour of the person who is interested in prosecuting the appeal on behalf of deceased appellant, he may entitle to get back the amount which is already deposited as per Ext. P2 and there may not be any amount towards compensation and also the cost. Even if the appeal proceeds at the instance of the near relatives and if it is dismissed, the petitioner herein who is the complainant will be entitled to all the amount accrued on the strength of the trial court judgment which was the outcome of the criminal proceedings initiated by him. The same is the position if the appeal is abated finally in views of section 394 of the Code of Criminal Procedure. Thus, it can be seen that it is open for the successors of the deceased appellant/accused to come to record or get substituted themselves and prosecute and appeal and get the conviction as well as compensation and cost set aside. If they do not come on record, in order to avoid the payment of 11/31 Rajesh Berry Vs. Genesis Educational Foundation compensation under the shelter of nonexecutability of the default sentence, a duty is cast upon the court to direct the successors to be brought on record and hear them accordingly and if the sentence and compensation and cost are affirmed and inspite of such affirmation, the L.Rs of the successors do not pay the compensation, the court has to proceed in accordance with law for the recovery of the compensation amount."
18. Therefore, as per the legal proposition laid down by Hon'ble Kerala High Court in aforesaid two judgments, the appeal does not abate on the death of appellant, even if, appeal is against sentence of imprisonment and award of compensation. Even if, the contention of learned counsel for appellant is accepted that present appeal is not against an appeal of sentence and fine, the appeal will not abate. Hence, it is held that the present appeal so far as it challenges awarding of compensation by the learned Metropolitan Magistrate to respondent does not abate.
19. Now I proceed to decide the appeal on merit and also on sentence as directed by Hon'ble High Court. The case of respondent/ complainant and the relevant facts noted by the trial Court are as under :
" (a) The present complaint was initially filed against two accused namely Rajesh Berry and Geeta Berry. Proceedings against 12/31 Rajesh Berry Vs. Genesis Educational Foundation accused Geeta Berry came to be quashed by Hon'ble Delhi High Court vide order dt. 08.01.08 and thus the instant case is only against accused Rajesh Berry. As per the averments of complaint , respondent society is engaged in promotion of education and related activities. In the year 2004 , it was looking for land in and around Delhi. Appellant, who was running a dental college, namely Shri Gobind Tricentinary Dental College in Gurgaon and a charitable trust, namely, Dashmesh Educational Charitable Trust, was known to the secretary of the respondent society. When the appellant came to know about the respondent society's requirement, he approached the latter and at his instance, following four demand drafts were prepared in the name of respective vendors for purchase of land measuring 86 kanals and 14 marla land at Badshahpur, Gurgaon :
S. No. DD No. Date Amount In favour of the vendor
1. 353170 29.05.2004 24,96,000/ Jitender Khatana
2. 353171 29.05.2004 12,97,200/ Jitender Khatana
3. 353172 29.05.2004 12,97,200/ Smt. Kamlesh
4. 353191 31.05.2004 16,96,000/ Harbans Singh Khatana
(c) Appellant Rajesh Berry assured the respondent society that the
entire 86 kanal 14 marla land would be duly registered in the latter's name through its secretary at the earliest.
13/31 Rajesh Berry Vs. Genesis Educational Foundation
(d) In October November 2004, it came to the knowledge of respondent that accused Rajesh Berry had played fraud with his trust and the Dental College and consequently he was remanded to judicial custody. On inquiry from SubRegistrar's office at Gurgaon, the respondent society further came to know that cheating, fraud and forgery had been committed by the appellant with respect to the land which the former wanted to buy and for which entire consideration was paid through demand drafts. It further came to respondent's knowledge that the appellant instead of registering the sale deeds in its favour, illegally registered 54 kanal 14 marla land in his wife's name, two parcels of 8 kanal land each in name of two other persons and 16 kanal land in name of Sh. Naresh Garg, the secretary of respondent society.
All this was allegedly done without the knowledge and consent of Sh. Naresh Garg.
(e) It is averred that appellant, after being released on bail, admitted his fraudulent acts/omissions and assured the respondent society that he would either get the entire aforesaid land registered in the name of respondent society or would return the market rate value thereof to its full satisfaction. In this regard, the appellant introduced one Sh.Bansal, authorised representative of M/s. Active Promoters Pvt. Ltd., to the respondent society and gave an assurance that through him, respondent society's property/money would be returned/protected and he would ensure that the entire land i.e. 86 kanal and 14 marlas would either be 14/31 Rajesh Berry Vs. Genesis Educational Foundation registered in the name of complainant society or the market value thereof as on the date would be returned to the complainant society. The said Sh. Bansal, at the instance of accused, entered into an agreement only for 16 kanals of land and the rest of the land i.e,, 70 kanal and 14 marlas was neither registered in respondent society's name nor the market value thereof was paid to it.
(f) As per respondent, in the above circumstances, it issued a legal notice dt. 09.01.06 to the appellant which was duly served upon him. Appellant, pursuant to receiving the said legal notice, approached the respondent society and offered to settle the matter by paying Rs. 6,75,00,000/ as full and final settlement towards the said land. The respondent society accepted the offer.
(g) The appellant accordingly issued cheque bearing no. 357431 dt. 20.01.06 drawn on United Western Bank Limited, Madangir which was handed over to the secretary of the respondent society with assurance of it being honoured on presentation. Respondent presented the aforesaid cheque in its bank account at United Western Bank, Pushp Vihar, for encashment. However, the same was returned dishonoured by its banker with the remarks 'funds insufficient' vide return memo dt. 24.01.06. Respondent made a demand for payment of the said amount by giving a demand notice dt. 27.01.06 to appellant. Despite service of the statutory notice of demand, the appellant failed to make payment of the cheque amount to the respondent within stipulated time. Thus, this 15/31 Rajesh Berry Vs. Genesis Educational Foundation complaint under section 138 of Negotiable Instrument Act against the accused.
20. The main submissions of Mr. Vijay K. Gupta, Ld. Counsel for appellant and the grounds urged in the appeal for challenging the impugned judgment and order as follows :
(i) In case of cheque being invalid, presumption u/s. 139 of Negotiable Instrument Act can be drawn in the present case;
(ii) The presumption u/s. 139 of Negotiable Instrument Act stood rebutted by cogent evidence which is admitted by respondent society i.e, application and affidavit of the Secretary of complainant society filed by him before Hon'ble High Court being Bail Application no. 446/04 dt. 12.09.05 being CM No. 9887/05 Ex. CW1/DB, Ex. CW1/B and Ex. DW1/E. These documents have not been considered by the Trial Court.;
(iii) There is no dispute by complainant that appellant/accused was bona fide owner of land measuring 54 Kanal 14 Marla, out of total land of 86 Kanal 14 Marla;
(iv) The Trial Court has failed to appreciate the ratio of judgment by Apex Court in 'Rangappa Vs. Sri Mohan' wherein Hon'ble Supreme Court laid down the circumstances under which presumption u/s. 138 of Negotiable Instrument Act is to be drawn about the existence of legally and enforceable debt of liability;
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(v) The Trial Court has failed to appreciate that there was no dispute over purchase of land which could lead to any settlement as referred in para 12 of complaint and hence there was no possibility of issuance of cheque in question to complainant society;
(vi) The Trial Court erred in not correctly appreciating the ratio of judgment in 'Thirumalai Iyengar Vs. Subha Rao' 1962 Madras Law Journal 192;
(vii) The sum of Rs. 50,90,400/ was advanced to appellant/accused by Genesis Finance Company Ltd and not by complainant society, as is evidenced by fax letter dt. 05.11.04. The fax letter Ex. DW1/A forms a probable material to rebut the presumption in view of ratio of Rangappa's judgment by the Apex Court;
(viii) Complainant society failed to place on record the balance sheets and statutory books of accounts to prima facie show that existence of debt or liability to the tune of Rs. 6.75 crores and the trial Court failed to draw an adverse inference against the complainant;
(ix) Appellant got the balance sheet of complainant society produced through DW 3 for the period from 2004 to 2007 as Ex. DW3/F, Ex. DW3/G and Ex. DW3/H and these balance sheets do not show any liability upon the appellant/accused to the tune of Rs. 6.75 crores and hence, the presumption u/s. 139 of Negotiable Instrument Act stood rebutted;
17/31 Rajesh Berry Vs. Genesis Educational Foundation
(x) In para 44 of the impugned judgment, it was held by the Trial Court that the amount of settlement of Rs. 6.75 crores is neither an asset nor liability. Inspite of such findings the trial Court has grossly erred in not holding that the cheque in question was never issued in discharge of any liability or debt;
(xi) Complainant has failed to establish its entitlement to the tune of Rs. 6.75 crores on the basis of any document or statutory books of accounts;
(xii) The Trial Court failed to take note of the deposition of CW 1 wherein CW 1 Secretary of complainant society has admitted to have deposited the sum of Rs. 60 lacs with complainant society out of sale of land measuring 16 Kanal. No such amount is shown in the balance sheets Ex. DW1/F, Ex. DW1/G and Ex. DW1/H. This testimony of CW 1 is falsified and makes the case of complainant not only improbable but a false case;
(xiii) That there is no stage to take a specific defence either in summary trial case or in summons trial case. Specific defence of the appellant through out the case has been that cheque in question was given to M/s. Genesis Finance Company Ltd. by way of security and it was a blank cheque;
(xiv) In case a blank cheque is issued, it does not make a person liable to pay any amount filled up by the recipient of cheque. Section 138 or 18/31 Rajesh Berry Vs. Genesis Educational Foundation Section 139 of Negotiable Instrument Act or any provision of law does not deal with the quantum of consideration nor does recipient is entitled to fill up any amount as debt or liability;
(xv) The appellant took the amount of Rs. 50,86,400/ from M/s. Genesis Finance Company Ltd and in the said transaction the cheque was given in blank by way of security;
(xvi) The loan was obtained on 31.05.04 and the security by way of blank cheque was offered on 22.11.05;
(xvii) Complainant society which operates under Societies Registration Act cannot and should not do such settlement without a written settlement and without written submission and without the approval of Board of Trustee/member. No resolution about such settlement has been placed on record;
(xviii) CW 1 did not comment on the fax dt. 05.11.04. The fax was relied upon by ld. Counsel for complainant in cross examination of CW 1 and hence the said document is taken to be proved as same was relied upon by complainant in evidence;
(xix) The Trial Court has erroneously held that provisions of Society Registration Act are not applicable to proceedings u/s. 138 N.I. Act and ignored the law laid down in 2001 Vol. IV SCC 275 - Milind Shripad Chandurkar Vs. Kalim M. Khan & Anr.
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21. Mr. M.A. Niyazi, learned counsel for respondent argued that land was given in May 2004 and on that day, accused was not competent to issue cheque of security and that DW 1 in cross examination deposed that the land was not mortgaged and thus no reliance can be placed on fax Ex. DW1/A, that no document for grant of loan of Rs. 50,90,400/ was executed, that a mutual agreement has been mentioned in the complaint to DCP Ex. DW1/F, that competence of accused Rajesh Berry to issue cheque was not raised in the petition filed by Ms. Geeta Berry u/s. 482 Cr.PC, that the application before Hon'ble High Court Ex. DW1/E was filed at the instance of appellant through his counsel, that it is not the case of appellant that no cheque other than the cheque in question was issued by accused persons from the same account, that CW 1 was not cross examined by the appellant, no suggestions were put to complainant witnesses regarding nonproduction of statutory books of accounts, that the amount shown in the balance sheet is in total of four drafts, that no suggestion was given to CW 1 in cross examination regarding the quantum of consideration and therefore, the quantum of consideration was never a lis.
22. Mr. Vijay K Gupta, learned counsel for appellant vehemently argued that appellant is not a drawer of the cheque and infact appellant was neither competent nor authorized to issue the cheque in question as can be seen from the document Ex. DW1/14, Ex. DW2/17 (page 60 to 68 of the paper book). Mr.Vijay K. Gupta, learned Counsel 20/31 Rajesh Berry Vs. Genesis Educational Foundation for appellants referred to para 4 of the order dt. 18.01.08 whereby the complaint u/s. 138 N.I. Act against Geeta Berry was quashed. In the said order, in para 4, the submission of ld. Counsel for complainant has been recorded to the effect that it is the petitioner i.e, Geeta Berry who is the main account holder. It was further submitted that The trial Court has failed to consider the written submission and judgment relied upon and has also not considered the document on record to arrive at a decision in accordance with law. Ld. Counsel for appellant in this regard relied upon document Ex DW2/15 (colly) and Ex. DW1/C. Ld. Counsel for appellant in this regard relied upon 2011 (4) Civil Court Cases 500 (Delhi) - Delhi High Court - M/s.. Mithi Interiors Pvt. Ltd. & Ors. Vs. M/s. Esscon Engineers Pvt. Ltd. & Ors. In this case accused were private limited company and its directors. In the evidence, it came on record that as per instructions of respondent no. 1 company, mode of operation of its bank account was joint by two directors of company namely respondent no. 2 Shubhendu Shekhar and petitioner Mithilesh Jha. Hon'ble High Court held that the purported cheques on the basis of which complaints have been filed by petitioner are signed by only one of the joint signatories namely respondent no. 2 Mukta Awasthi. Since the purported cheques do not bear signatures of second joint signatory, the aforesaid instruments do not qualify the definition of valid cheque which could be kept by the bank in terms of instruction regarding mode of operation on bank account.
21/31 Rajesh Berry Vs. Genesis Educational Foundation
23. First of all, appellant herein is not a private limited company but is an individual. There was no such instruction given in the present case to the bank that the mode of operation of bank account from which the cheque in question was issued was joint by appellant and his wife Smt. Geeta Berry. Therefore, this judgment will not advance the case of appellant.
24. The appellant then placed reliance on (2013) 8 Supreme Court Cases 71 -Aparna A. Shah Vs. Sheth Developers Pvt. Ltd. & Ors. In this case, the cheque of Rs. 25 crores was issued by the husband of appellant from the joint account of appellant and husband of appellant. A complaint was filed against the appellant and her husband on dishonor of said cheque. By the order dt. 24.04.09, process was issued against them. On 12.01.10, appellant and her husband filed an application objecting exhibition of documents but same was registered as Ext. 28. By the order dt. 11.05.10, the said application was dismissed. Against the issuance of process dt. 24.04.09 and order dt. 11.05.10 dismissing the application by the Magistrate, appellant filed a writ petition before Hon'ble High Court. Hon'ble High Court by order dt. 24.09.10 partly allowed the petition and quashed the order dt. 11.05.10 and directed the Magistrate to decide the objections raised by the counsel for accused after hearing both parties but refused to quash the proceedings. Aggrieved by the said order, appellant filed an appeal before Hon'ble Supreme Court. In this factual background, the Hon'ble 22/31 Rajesh Berry Vs. Genesis Educational Foundation Supreme Court held in para 28 of the judgment that under section 138 Negotiable Instrument Act. in case of issuance of cheque from joint accounts, joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is joint account holder. However, it is not laid down in this judgment that a person who has issued the cheque from a joint account held by him with another person, cannot be made liable u/s. under section 138 Negotiable Instrument Act. Hon'ble Supreme Court quashed the complaint against the appellant in the aforesaid case as she has not signed the cheque which is issued from a joint account maintained by appellant and her husband.
25. Even otherwise, the cheque in question was dishonoured on the ground 'funds insufficient' and not on the ground 'drawer not competent to operate the account' or 'drawer not competent to issue cheque'. CW 3, an official of bank, came in the witness box and deposed about the dishonour of the cheque and aforesaid ground of return of the cheque. Accused had sufficient opportunity to cross examine CW 3 and to ask from CW 3 as to why the cheque was not dishonoured on the ground 'drawer not competent to issue the cheque'. No such suggestions were put by appellant to CW 3. Infact, CW 3 was not cross examined at all by accused persons. Therefore, it cannot be said that accused was not authorised to sign the cheque and the cheque was not issued by accused on the account maintained by him. 23/31 Rajesh Berry Vs. Genesis Educational Foundation
26. Much reliance has been placed by appellant on the copy of fax Ex. DW1/A. This copy of fax was shown to CW 1 who refused to comment on the same saying that this is not original. CW 1 was quite justified in not commenting on the copy of fax Ex. DW1/A, as copy of a document cannot be put to a witness in cross examination unless or until that copy of the document is admitted by witness. This document has been dealt with by the trial Court in the impugned judgment in the right prospective. The appellant has not explained as to what was the occasion for the respondent to send the fax six months after giving loan to appellant. Appellant has also not been able to explain as to why the fax was issued to a third party and not to the respondent. DW 6 Rajnesh Aggarwal, a common acquaintance of complainant and accused, has categorically denied having received same.
27. Lastly, the contents of this fax were contradicted by DW 1 himself when he deposed at once place that he has not mortgaged the land to M/s. Genesis Finance Company Ltd while taking the aforesaid loan of Rs. 50,90,400/. One of the submissions of Mr. Vijay K. Gupta, learned counsel for appellant was that since the fax Ex. DW1/A has been referred to by the appellant in the cross examination of DW 1, hence, same is deemed to have been admitted by complainant. Copy of said fax Ex. DW1/A was put to DW 1 by learned counsel for respondent only to contradict him with regard to his previous depositions before the Court and hence it cannot be said that 24/31 Rajesh Berry Vs. Genesis Educational Foundation respondent by referring the fax Ex. DW1/A in cross examination has admitted the same.
28. It was held in impugned judgment that the document EX.
DW1/A being fax, falls in the category of electronic evidence and since no certificate as mandated u/s 65B(4) of Indian Evidence Act has been brought on record, the document is inadmissible. This finding has been challenged in the appeal saying that fax is not an electronic document and fax is obtained on a thermal paper which fades out with the passage of time. It is also contended that the original of fax is not a thermal fax and must be retained by sender i.e, M/s. Genesis Finance Company Ltd.
29. According to Section 3 of Indian Evidence Act the expression electronic record shall have the meaning respectively assigned to it in the Information Technology Act 2000.
30. Section 2(t) of defines electronic record as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
31. It is clear from the above discussion that fax is an electronic record and since no certificate as mandated u/s. 65B (4) of Indian Evidence Act was brought on record, the copy of fax is inadmissible in evidence. The appellant cannot draw any support from the fax Ex. DW1/A. The fax is inadmissible and hence no reliance can be placed on the fax Ex.DW1/A. 25/31 Rajesh Berry Vs. Genesis Educational Foundation
32. Very heavy reliance was placed by the appellant on the applicant Ex. DW1/E filed by Mr. Naresh Garg, Secretary of respondent before Hon'ble High Court for modification of order dt. 19.07.05 passed in C.M. No. 9887/05. Mr. Vijay K. Gupta, learned Counsel for appellant argued that it is clearly mentioned in para 2 of this application that accused is the owner of 12 Kanal and 11 Marla of the total land situated in Badshahpur Distt. Gurgaon, Harayana. According to ld. Counsel for appellant, this admission on the part of complainant that accused is the owner of 12 Kenal and 11 Marla shakes the very basis of the case of complainant because if accused is the owner of this much of land, there was no occasion for the accused to enter into settlement with complainant and to issue cheque in question. It was also contended that the statutory presumption raised against the accused u/s. 139 of Negotiable Instrument Act stood rebutted by the application Ex. DW1/E.
33. First of all, it is not clear whether the land showed to be owned by appellant in the application is the same land which he got registered in his own name after getting four drafts from the respondent. Secondly, this application was filed by respondent out of compulsion as CW 1 deposed in cross examination that accused informed him that there is a stay by Hon'ble High Court and CW 1 alongwith other persons filed an application in Hon'ble High Court through lawyer of accused for clarification of order from Hon'ble High Court. CW 1 26/31 Rajesh Berry Vs. Genesis Educational Foundation further deposed that he has no option except to believe the accused, as accused stated that he will release the land one after another. It is to be noted that the said application was filed through the counsel of appellant to facilitate the settlement of dispute between parties. Hence, any averment made in the application Ex. DW1/E will not operate as estoppel against respondent. Therefore, it is concluded that averment of application Ex. DW1/E have not raised any doubt over the case of complainant and same does not rebut the presumption u/s. 139 of Negotiable Instrument Act.
34. The books of account and balance sheet reflect assets and liabilities of a person or concern. It has been rightly observed by the learned Metropolitan Magistrate in the impugned judgment that the amount which was dishonoured is neither an asset nor liability of complainant. The amount which is payable to complainant because of settlement with accused but which has not been paid cannot be termed as asset of complainant. Hence, same was not reflected in the balance sheet. For the same reason, non production of account of books of complainant will not entail adverse inference against the respondent.
35. Another ground raised in the appeal is that the presumption to be raised against accused u/s. 139 of Negotiable Instrument Act, does not extend to presumption as to the quantum of consideration. Reliance in this regard was placed on 'Thirumalai Iyengar Vs. Subha Rao' 1962 Madras Law Journal 192 . Mr. Vijay K. Gupta, learned Counsel for 27/31 Rajesh Berry Vs. Genesis Educational Foundation appellant argued that respondent has to prove the quantum of consideration.
36. The case of appellant is that the cheque in question was given as security against the loan taken from M/s. Genesis Finance Company Ltd. Respondent never put any suggestion to CW 1 or other complainant witnesses to the effect that the cheque in question was not issued for Rs. 6.75 crores but was issued for some other amount. The only suggestion put to CW 1 was that a blank cheque was given as security to complainant against advancement of loan. Therefore, I find substance in the contention of ld. Counsel for respondent that quantum of consideration was never a lis. Even otherwise, defence of appellant/accused that the cheque in question was given as security against the loan is not legally tenable. In 2007 (99) DRJ 251 Delhi High Court - Collage Culture & Ors. Vs. Apparel Export Promotion Council, it was held in para 20 & 21 as under :
" Para no. 20 - A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event.
Para no. 21 - The difference in the two kinds of postdated cheques would be that the cheque issued under first circumstance 28/31 Rajesh Berry Vs. Genesis Educational Foundation would be for a debt due, only payment being postponed. The latter cheque would be by way of security."
37. First of all, there was no occasion for accused to issue the blank cheque as security almost six months after taking the loan. Even if, the blank cheque was given against the said loan, same cannot be said to have been issued as security cheque as on the date of issuance of cheque, as accused as per his own case was under liability of Rs. 50,90,400/. Therefore, in view of the law laid down in the aforesaid case, this cheque cannot be called as a security cheque even as per the version of respondent. When the very basis of appellant is falsified, appellant cannot raise a plea of quantum of consideration.
38. The contention of learned counsel for appellant that there is no stage to take a specific defence either in summary trial or in summons trial case, cannot be accepted. Present case was tried as a summons case. When accusations are explained to accused u/s. 251 Cr.PC, accused is expected to put forth his defence in response to those accusations. The next opportunity comes to the accused when he is examined u/s. 313 Cr.PC/281 Cr.PC. On none of these two occasions, accused came out with his defence. Hence, the trial Court was right in observing that accused raised the defence for the first time when accused was examined as DW 1 that the cheque in question was given in security to M/s. Genesis Finance Company ltd. and it was a blank cheque.
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39. The next contention of appellant is that complainant society operates under Societies Registration Act and is governed by its rules and it could not have entered into any settlement with accused without any approval of board/trustees/members. It was further submitted by learned counsel for appellant that the said settlement was not possible without the settlement being reduced in writing. All these contentions are rebutted by respondent through document i.e, Ex. DW1/F, i.e,complaint to DCP. In the said complaint, appellant himself stated that after receiving notice dt. 10.02.06, there was a meeting between the parties and a mutual agreement to the tune of Rs. 55 lacs was arrived at. In other words, even the appellant admitted that there was a settlement between appellant and respondent. The only difference is that appellant in his complaint mentioned the amount of settlement as Rs. 55 lacs. Hence, the appellant cannot challenge the validity of settlement arrived at between appellant and respondent as contended in the complaint.
40. The reasons given by the trial Court to hold that accused has not discharged the burden of mandatory provision in para 31 to 48 of the impugned judgment are based on correct appreciation of evidence and law on the subject and do not call for any interference. It is thus, concluded that appellant/accused Rajesh Beery was rightly convicted u/s. 138 of Negotiable Instrument Act.
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41. After considering the entire record, facts and circumstance of the case, this Court is of the considered opinion that the sentence awarded in this case is neither harass nor excessive. Rather the sentence awarded by the Trial Court is reasonable keeping in view the law laid down by Hon'ble Supreme Court in (2012) 1 Supreme Court Cases 260 - R.Vijayan Vs. Baby & Anr. Therefore, even the order on sentence dt. 08.07.13 calls for no interference. Accordingly, the appeal filed appellant Rajesh Berry is dismissed.
Trial Court record be sent back along with the copy of this order. Appeal file be consigned to Record Room.
Announced in open Court (Sandeep Yadav)
on 13.05.14 Additional Sessions Judge5 (South)
Saket Courts, New Delhi
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