Delhi District Court
Sh. Mohit Sharma vs Lajwanti Verma on 17 February, 2023
IN THE COURT OF MS. DEEPALI SHARMA
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
CNR No. DLET01-008114-2022
Cr. Appeal No. 145/2022
Sh. Mohit Sharma,
S/o Sh. Ram Kishan Sharma
R/o E-12/6, Ground Floor,
Krishna Nagar, Delhi-110051.
.....Appellant
Versus
Lajwanti Verma
W/o Late Sh. Virender Kumar Verma
R/o G-250, Preet Vihar
Delhi-110092.
..... Respondent
Date of Institution : 30.08.2022
Date of reserving Judgment : 01.02.2023
Date of pronouncement : 17.02.2023
Appearances
For the Appellant : Sh. Sandeep Tyagi, Advocate
For the Respondent : Sh. Ajay Kumar Jain, Advocate
JUDGMENT
1. By way of the present appeal, the appellant/convict has assailed the judgment dated 27.06.2022 and order on sentence dated 07.7.2022 passed in complaint case No. 2025/2020, titled as Lajwanti Verma Vs Mohit Sharma. Vide its judgment dated 27.06.2022, appellant/convict Mohit Sharma was CA No. 145/2022 Page 1 of 15 ASJ04/KKD/Delhi held guilty for offence u/s 138 of Negotiable Instruments Act and convicted for the same. Vide order on sentence dated 07.07.2022, the appellant/convict was sentenced to three months simple imprisonment along with fine of Rs. 2,00,000/-. In default of payment of compensation, the appellant/convict was further directed to undergo simple imprisonment for three months.
2. The above-said judgment has been assailed by the appellant/ convict. The facts leading to the filing of the complaint case as stated in the complaint case No. 2025/2020 are that the complainant/respondent is the owner of property bearing no. E- 12/6, Krishna Nagar, Delhi-110051. The appellant entered into registered lease agreement dated 01.08.2018 Ex.CW1/A with the complainant for lease of part of the ground floor of the property bearing no. E-12/6, Krishna Nagar, Delhi-110051 for a period of 24 months w.e.f. 01.08.2018 to 31.07.2020 on a monthly rent of Rs. 9,000/- for the first 12 months and thereafter at a lease rent of Rs. 9,900/- for the next 12 months, after enhancement of lease rent by 10%. The appellant/convict was not regular in payment of lease rent and showed his financial constraints and he also got adjusted his security deposit of Rs. 18,000/- towards payment of lease rent for the month of February and March, 2019 and he paid the lease rent till July, 2019. Thereafter, he also make part payment of lease rent for the month of August, 2019 of Rs. 9,000/- out of the total amount of Rs. 9,900/- and thereafter he did not make any payment. On repeated requests and demands for arrears of rent, the appellant/convict issued a post dated cheque on 30.05.2020. He accordingly, issued cheque bearing no. CA No. 145/2022 Page 2 of 15 ASJ04/KKD/Delhi 519560 dated 29.06.2020 in the favour of the complainant for a sum of Rs. 99,900/- Ex.CW1/B towards lease rent for the period between September, 2019 to June, 2020 at the rate of 9,900/- per month along with remaining out of Rs. 900/- for the month of August, 2019. The appellant promised the complainant that the cheque would be honoured upon presentation for encashment on date of its maturity. He also gave an undertaking in writing that after making the payment of lease rent upto June, 2020, he will vacate the premises in issue on or before 31.07.2020 and shall handover its vacant and peaceful possession to the complainant after making payment of lease rent for the month of July, 2020 along with the receipts of payment of electricity and water charges. The said undertaking of the complainant is Ex.CW1/C.
3. The complainant presented the aforesaid cheque Ex.CW1/B for encashment but the same was returned unpaid with reason "signatures differ" vide return memo dated 30.06.2020 Ex.CW1/D. The complainant served a legal notice dated 16.07.2020 upon the appellant through WhatsApp on 22.07.2020 and also by DTDC courier. However, despite service of notice, the appellant neither made payment of the cheque amount nor replied to the notice. Accordingly, the complainant filed the complaint u/s 138 of Negotiable Instrument Act.
4. Pre-summoning evidence was led by the complainant and upon material available on record, cognizance of the offence u/s 138 NI Act was taken by the Ld. MM on 18.11.2020 and the appellant was summoned. The CA No. 145/2022 Page 3 of 15 ASJ04/KKD/Delhi appellant/convict entered appearance before the Ld. M.M. and notice u/s 251Cr.P.C. was framed against the appellant on 13.12.2021 to which he pleaded not guilty and claimed trial. His plea of defence was recorded. An oral application was made by ld. Counsel for the appellant u/s 145 (2) of NI Act seeking permission to cross-examine the complainant which was allowed.
5. The complainant was examined as CW-1 and she also relied upon the documents i.e. complaint Ex.CW1/1, certified copy of Lease Deed Ex.CW1/A, certified copy of cheque dated 29.06.2020 Ex.CW1/B, certified copy of undertaking Ex.CW1/C, certified copy of returning memo Ex.CW1/D, certified copy of legal notice dated 16.07.2020 Ex.CW1/E, copy of WhatsApp chat is EX.CW1/F, certified copy of postal receipt and delivery report Ex.CW1/G and Ex.CW1/H, certified copy of legal notice dated 01.07.2020 Ex.CW1/I. The complainant was cross-examined by Ld. Counsel for the accused and the complainant's evidence was closed and thereafter the statement of accused was recorded under Section 313 Cr.P.C. Though appellant/convict preferred to lead defence evidence, however, on 23.05.2022, his opportunity to lead DE stood closed and the matter was listed for final arguments. Vide the impugned judgment dated 27.06.2022, the accused was convicted for offence u/s 138 of Negotiable Instruments Act and thereafter, the order on sentence was passed on 07.07.2022.
6. It is argued by the Ld. Counsel for the appellant that the complainant/respondent has not proved on record the CA No. 145/2022 Page 4 of 15 ASJ04/KKD/Delhi existence of any legally enforceable debt or liability in favour of the complainant/respondent and has filed the present case on the basis of a cheque given to the complainant/respondent. It is stated that the complainant had extorted the blank signed cheque and blank paper from the appellant/ convict by creating pressure and subsequently despite payment of due rent to the complainant in cash, the complainant did not return the cheque in issue and misused the same by filing the present case.
7. On the other hand, it is contended by Ld. Counsel for the respondent/complainant that once the ingredients of section 138 of NI Act are fulfilled, a presumption u/s 139 of NI Act arises in favour of the complainant/respondent. It is stated that it is proved on record that the cheque in issue was issued by the appellant/convict and the signature on the cheque was also of the appellant/convict. Once the issuance of cheque and the signature on cheque are proved, in pursuance to the undertaking Ex.CW1/C given by the appellant/convict to the complainant/ respondent and other ingredients of section 138 being satisfied, a presumption u/s 139 of the NI Act arises and in facts of the present case the presumption u/s 139 of the NI Act is raised. The appellant/convict has failed to rebut the said presumption. In these circumstances, the Ld. Trial Court has rightly convicted the appellant for the offence u/s 138 of the NI Act.
8. In his statement of defence, the appellant/ convict at the time of framing of notice admitted his signature on the cheque in question and that the cheque belonged to him. CA No. 145/2022 Page 5 of 15 ASJ04/KKD/Delhi However, he had not filled up the contents of the cheque in issue. He stated that he did not receive the legal demand notice but the address mentioned therein belonged to him. He further stated that he had been living as a tenant in the property of the complainant for the last about three years. In the month of June, 2020 the complainant and her son came to him with two or three persons and demanded the due rent of two months from him. Since, he did not have the money, the complainant demanded the blank cheque from him. The complainant and her son created pressure on him and took the blank signed cheque from him and also took his signature on blank papers. After sometime, the appellant/ convict repaid the due rent to the complainant in cash but the complainant did not return his cheque in question despite his request to return the same. He stated that the complainant had misused the cheque in question by filing the present case and he had no liability towards the complainant with respect to the cheque in issue.
9. In his statement recorded u/s 313 Cr.P.C., the appellant/ convict denied that he had issued the cheque in issue or that he was residing as a tenant in the property of the complainant and other incriminating facts put to him. He also stated that he did not receive any legal demand notice. He opted to lead evidence. However, subsequently he did not lead any evidence in his defence and final opportunity to lead evidence in his defence was closed on 23.05.2022. Hence, in his statement of defence at the stage of framing of notice, u/s 251 Cr.P.C. the appellant/ convict had admitted his signatures on the cheque in CA No. 145/2022 Page 6 of 15 ASJ04/KKD/Delhi question and later, in her cross-examination CW-1 denied the suggestion that she had forged and fabricated the cheque in question and had misused the same. Besides the said suggestion, nothing was elicited in her testimony to destroy the veracity of the cheque in issue. Considering that the appellant/ convict had categorically admitted his signature on the cheque at the stage of framing of notice u/s 251 Cr.P.C. and no evidence has been led to prove otherwise, the signatures on the cheque Ex.CW1/B are proved to be of the complainant/ respondent.
10. The said cheque Ex.CW1/B was returned unpaid with remarks "drawer's signatures differ". A legal notice was also issued by the complainant/ respondent. The legal notice was sent through courier. The appellant/ convict admitted in his statement of defence u/s 251 Cr.P.C. that the address belonged to him. The courier receipt is Ex.CW1/G and the postal receipt Ex.CW1/H. The said legal notice was not replied to by the appellant/ convict nor was the same complied with.
11. Hence, the signatures on the cheque Ex.CW1/B are proved to be of the appellant/convict and it is also proved on record that the said cheque was returned unpaid with the remarks "drawer's signatures differ". It is contended that the cheque in issue has not been dishonored on the ground of "funds insufficient" and therefore, no case is made out u/s 138 Negotiable Instruments Act. In this regard, the Hon'ble Apex Court in the judgment of Laxmi Dyechem Vs State of Gujarat 2012 13 SCC 375 has held that the dishonor of cheque on the CA No. 145/2022 Page 7 of 15 ASJ04/KKD/Delhi ground that the signatures of drawer did not match the specimen signature available with the bank would attract the penal provision of section 138 of NI Act. Hence, the contention of ld. counsel for the appellant in this regard is untenable.
12. Accordingly, the cheque in issue was returned unpaid to the complainant and thereupon, a legal notice was served by the complainant/ respondent. The legal notice dated 16.07.2020 was sent through WhatsApp Ex.CW1/F and by courier Ex.CW1/G. The postal receipt is Ex. CW1/H. Another legal notice dated 01.07.2020 was sent by the complainant/ respondent Ex.CW1/I. No reply to the said legal notice was given by the appellant/convict nor was the same complied with. In these circumstances, presumption u/s 139 of the NI Act is raised in favour of the complainant/respondent that the complainant/respondent received the cheque for the discharge of a debt or liability.
13. Law relating to presumption u/s 118 (a) and 139 of Negotiable Instrument Act has been discussed in detail in catena of decisions of the Hon'ble Supreme Court. In Basalingappa v Mudibasappa, 2019 (5) SCC 418, the Hon'ble Supreme Court held as under:
"23. We having noticed the ratio laid down by this Court in above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable CA No. 145/2022 Page 8 of 15 ASJ04/KKD/Delhi presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box in support of his defence,
14. Hence, the onus upon the appellant/convict to disprove the presumption u/s 139 of the NI Act is by raising the probable defence. In Ms Narayana Menon Vs State of Kerala 2006 6 SCC 39, the Hon'ble Supreme Court held that the standard of proof evidently is preponderance of probabilities which can be drawn not only from the material on record but also by reference to circumstances upon which the complainant relies.
15. In the present case, the appellant/ convict has essentially taken the defence in the initial notice u/s 251 Cr.P.C. that he had not filled up the contents of the cheque in question. He was living in the property of the complainant as a tenant for about three years. The complainant/ respondent along with her son came to him along with 2-3 persons in the month of June, 2020 to demand the rent for two months from him. Since he did CA No. 145/2022 Page 9 of 15 ASJ04/KKD/Delhi not have any money, the complainant and her son pressurized her and took a blank signed cheque from him and also took his signatures on a blank paper. After sometime the appellant/ convict repaid the rent due to the complainant in cash but the complainant did not return the cheque in question despite requests. In his statement recorded u/s 313 Cr.P.C., no specific defence was raised by the appellant/ convict and he merely denied the allegations put to him. Despite opting to lead evidence in his defence, he did not lead defence evidence in the matter.
16. The appellant/ convict cross-examined CW-1 Mrs. Lajwanti Verma. In her cross-examination, CW-1 stated that she had studied upto 9th class. She denied that the appellant/ convict always used to pay rent to her in cash only. She stated that appellant/ convict used to pay sometime through cheque also. She did not remember when he used to make payment of rent through cheque which got dishonored. She denied that she could not tell on which occasion the appellant/ convict paid rent to him through cheques which were got dishonored because the appellant/ convict never paid rent to her through cheques. She denied that she could not produce any cheque which had been dishonored earlier because no cheques were ever given by the appellant/ convict towards payment of rent. She did not issue rent receipts to the appellant/ convict. She denied that she had placed a falsified document Ex.CW1/C and that she had obtained signature on a blank paper. She denied that she along with her two sons and some associates went to the address of the appellant/ convict in the first week of June, 2020 and threatened CA No. 145/2022 Page 10 of 15 ASJ04/KKD/Delhi the appellant/ convict and has his family to handover his blank signed cheque and a blank signed page to her, otherwise, she would throw away all his belongings out of the house. She denied that she had forged and fabricated the cheque in question and misused the same. She denied that the rent was due only for the month of April and May, 2020. She denied that the appellant/ convict had given Rs. 18,000/- towards rent due for April and May, 2020 after taking loan from his friend Anil Madan. She denied that appellant/ convict had given Rs. 3,00,000/- in cash towards security amount in October, 2020 or that she had refused to get documents executed in that regard due to ongoing Corona Pandemic. She denied that the appellant/ convict had no liability towards her with respect to the cheque in question as the appellant/ convict was regularly making payment of rent to her in cash. She denied that she had filed a false case against the appellant/ convict based on false and fabricated documents.
17. Accordingly, it has to be seen if the appellant has been able to rebut the presumption u/s 139 of the Negotiable Instrument Act on the basis of documents and evidence on record. As regards the plea that the appellant/convict had handed over a blank signed cheque, the law in relation to handing over of a blank/ signed instrument as a negotiable instrument is no longer resintegra and the Hon'ble Supreme Court in T. Nagappaa Vs Y.R. Murlidhar 2008 5 SCC 633 and later in Bir Singh Vs Mukesh Kumar 2019 4 SCC 197, the Hon'ble Supreme Court has held as under:-
"37. A meaningful reading of the provisions of the CA No. 145/2022 Page 11 of 15 ASJ04/KKD/Delhi Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
18. Hence if the blank signed cheque has been filled in by the holder of the cheque, the same would not have the effect of invalidating the same.
19. High Court of Delhi in the case of Jai Prakash Singh v. Rashmi Aggarwal, Crl.R.P.749/2010 decided on 11.07.2013, observed that :-
"The accused cannot succeed in rebutting the statutory presumptions as envisaged under Section 118 r/w Section 139 of Negotiable Instruments Act by mere denials or by raising a weak defence or even by raising a strong defence, but not proving the same through any reliable or cogent evidence."
20. Accordingly, though the appellant/ convict has taken the defence that the complainant / respondent had obtained his signatures forcibly on the cheque in issue and on a blank CA No. 145/2022 Page 12 of 15 ASJ04/KKD/Delhi page and threatened that the appellant/ convict and his family to handover the blank signed cheque and blank signed page, otherwise they would be thrown out of the house, however, no evidence has been led to prove the said defence taken by the appellant/ convict. It was stated by the appellant/ convict that the complainant/ respondent had come to his house with her son and 2-3 other persons, despite the same no complaint regarding the incident was ever lodged by the appellant/ convict. In fact the document Ex.CW1/C is an undertaking made by the appellant/ convict that the rent due to the complainant/ respondent till June, 2020 will be Rs. 99,900/- in total, as against which he was issuing a cheque bearing no. 519560 dated 29.06.2020 for amount of Rs. 99,900/- in favour of the complainant. It is further mentioned that vide the said cheque rent will be paid till June, 2020 and thereafter he shall pay the rent for the month of July, 2020 of Rs. 9,900/- before 31st July, 2020 and thereafter he shall vacate the premises by 31st July, 2020.
21. Nothing has been brought on record to prove that document Ex.CW1/C is a forged document. In fact the signature of the appellant/ convict are admitted on the said document. Merely by giving a suggestion to the complainant/ respondent that the said document was a falsified document, does not lead to a conclusion that it is one. In cross-examination of CW-1, the appellant/ convict also suggested that he had given 3,00,000/- in cash towards security amount in October, 2020, which suggestion was denied by the complainant. It is intriguing as to why the appellant/ convict would give a huge amount of Rs. 3,00,000/- in CA No. 145/2022 Page 13 of 15 ASJ04/KKD/Delhi cash to the complainant/ respondent without any documentation in that regard. No evidence has been led to prove that any amount of Rs. 3,00,000/- was given in cash by the appellant/ convict. The complainant/ respondent also denied that the appellant/ convict had given Rs. 18,000/- to her towards rent due for the month of April and May, 2020 after taking loan from his friend namely Anil Madan. Anil Madan was also not examined by the appellant/ convict to show if any amount was taken from him.
22. Hence, the counsel for the appellant/ convict has sought to prove his defence by merely putting suggestion to CW1 which were denied by her. Nothing was elicited in her cross- examination to disprove her version. No witness was examined by the appellant/ convict in his defence. No cogent evidence was led by the appellant/ convict to prove the defence raised by him.
23. In these facts and circumstances, the defence raised by the appellant/ convict remains only a bald one as neither the same was raised at the time of recording of statement u/s 313 Cr.P.C. nor any independent witness of the said facts was led by the appellant/ convict.
24. The appellant/convict has thus failed to prove the defence sought to be raised by him and has therefore failed to rebut the presumption raised u/s 139 Negotiable Instrument Act. In these circumstances I find no infirmity in the judgment passed by the Ld. Trial Court and the same is upheld.
CA No. 145/2022 Page 14 of 15 ASJ04/KKD/Delhi
25. The appellant/ convict was sentenced to three months of simple imprisonment along with fine of Rs. 2,00,000/-. Fine was directed to be paid to the complainant/ respondent u/s 357(3) Cr.P.C. In default of payment of fine/compensation, the appellant/ convict was further directed to undergo simple imprisonment for a period of three months. Considering that the appellant/ convict has been dragging the complainant/ respondent who is a senior citizen aged around 80 years to court, without any justifiable reason, I do not find any reason to interfere with the order on sentence as well.
26. Accordingly, present criminal appeal is dismissed. The judgment and the order on sentence passed by Ld. Metropolitan Magistrate is upheld. Appeal is accordingly disposed off.
27. TCR be sent back alongwith copy of this judgment to the Ld. Trial court with the direction to enforce the sentence.
28. Appeal file be consigned to the Record Room.
Digitally
signed by
DEEPALI
DEEPALI SHARMA
SHARMA Date:
2023.02.11
00:01:07
+0530
(Pronounced in the open Court (Deepali Sharma)
on 17.02.2023 Additional Sessions Judge-04,
East District, Court No. 10,
Karkardooma Courts, Delhi.
CA No. 145/2022 Page 15 of 15 ASJ04/KKD/Delhi