Delhi District Court
Rajesh Bajaj vs Ravinder Jagga on 2 April, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 25/2015
Unique ID No. 02401R-029945-2015
Rajesh Bajaj
S/o Sh. Kishan Lal Bajaj
R/o H.No.B-2, Vishnu Garden
Khayala, New Delhi. . . . . Appellant
versus
Ravinder Jagga
S/o Sh. O.P. Jagga
R/o H.No.63D, LIG Flats,
Mayapuri, New Delhi-110064. . . . . Respondent
Date of institution : 02.06.2015
Judgment Reserved on : 16.03.2016
Date of pronouncement : 02.04.2016
JUDGMENT
1. Vide this judgment, I shall dispose the appeal bearing CA NO.25/15 instituted on 02.06.2015 by the appellant assailing judgment dated 21.04.2015 and impugned order on sentence dated 29.05.2015 passed by Sh. Dhirendra Rana, Ld. MM-02, West, in Complaint Case bearing CC No.6768/1/13 under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act').
Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page1of10
2. The appellant assailed the impugned judgment and order on sentence interalia pleading that :-
• Ld. Trial Court erred in holding that the appellant has not examined Arun Khosla as his defence witness; • Ld. Trial Court failed to appreciate the fact that the complainant failed to show his financial capacity to advance such a huge amount and has not mentioned the loan amount in his ITR and that;
• Ld. Trial Court failed to appreciate the fact that the appellant did not receive the legal notice.
3. Notice of the appeal was issued to the complainant/ respondent herein who has put in appearance and contested the instant appeal.
4. TCR of Complaint Case bearing CC NO.6768/1/13 was requisitioned which has been received and perused. I have heard Sh. A.K. Sharma, Ld. counsel for the appellant and Sh. Mohinder Dhawan, Ld. counsel for the respondent and have carefully perused the entire record.
5. The case of the complainant culminating in filing the aforesaid Complaint Case, in nutshell, is that the appellant approached the complainant in October 2012 for a friendly loan of Rs.3,00,000/-. The said amount in cash was advanced by the complainant to the Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page2of10 appellant and the appellant assured to pay back the said loan amount within three months but the appellant did not keep his promise. On 24.12.2012, when the complainant demanded the said loan amount, the appellant issued a cheque bearing No.432157 dated 24.12.2012 for Rs.2,60,000/- drawn on State Bank Of India, Khayala, New Delhi-18 in favour of the complainant. On the same day, the appellant also paid Rs.40,000/- in cash to the complaint. However, the aforesaid cheque got dishonoured on presentation due to the reason "funds insufficient" vide cheque returning memo dated 01.02.2013. Therefore, the complainant issued a legal notice dated 27.02.2013 to the appellant calling upon him to pay the cheque amount within the prescribed period and on his failure to pay the amount, the aforesaid complaint case under section 138 of the N.I. Act was filed on 02.04.2013.
6. On appreciation of pre-summoning evidence recorded under Section 200 Cr.P.C., the appellant was summoned and he was served with notice under Section 251 Cr.P.C. on 16.09.2013 to which he pleaded not guilty and claimed trial.
7. In response to notice u/s 251 Cr.P.C., the appellant stated "The cheque pertains to my bank acount and bears my signatures." In his statement recorded u/s 313 Cr.P.C., the appellant has also admitted the said fact.
Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page3of10 Since, the appellant himself admitted that he issued the cheque in question. As such, presumption under Sections 118 and 139 of N.I. Act can be drawn, placing reliance on the judgment of the Hon'ble Apex Court in Rangappa vs. Mohan AIR 2010 SC 1989 which is to the effect that :-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the respondent."
8. Having drawn presumption in favour of the complainant in terms of judgment of Hon'ble Apex Court in Rangappa vs. Mohan (supra), onus is shifted to the appellant to create a dent in the case of the complainant.
9. Ld. counsel for the appellant contended that the cheque in question was signed blank by the appellant and the remaining particulars were filled-in by the complainant mischievously and therefore, the case of the complainant deserved to be discarded.
The said plea can be discarded by placing reliance on the judgment of Hon'ble High Court in case Ravi Chopra Vs. State & Anr., Crl. M.C. 5211/2006 and Crl. M.A. No. 8864/2006, wherein it was held that:
"where the accused facing the trial for the offence u/s 138 is disputing the signature on the cheque Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page4of10 itself, then this is a permissible defence within the scope of Section 138 of NI Act but where the signature are admitted, although the cheques are issued in blank there is an implied authority given to the payee to fill up the instrument. Section 20 of NI Act also say so."
Reliance in this regard may also be placed on the Judgment of Hon'ble High Court in Jaipal Singh Rana vs. Swaraj Pal, 149 (2008) DLT 882 wherein it was observed that there is no law that requires that particulars of the entire cheque should be filled in by the drawer himself and further on the judgment of Hon'ble High Court of Delhi in Vijender Singh vs. Eicher Motors Limited & Anrs. Crl. M.C. 1454/2011 decided on 05.05.2011 wherein it was observed that any person who issues blank signed cheque should understand the consequences of doing so.
The appellant himself admitted that he issued the cheque in question to the complainant and by handing over cheque in question to the complainant gave him express and implied authority to fill in his name as payee.
10. Loan was advanced in the year 2012 and the cheque in question was also issued in the year 2012 and if there was any misuser of the cheuqe by the complainant, there is no explanation as to why the appellant remained silent from 2012 and did not initiate any action against the complainant for misuser of the cheque.
Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page5of10
11. Appellant has also contended that he had not received the legal notice dated 27.02.2013 Ex.CW1/3.
The said contention of the appellant has no legs to stand and the same was rightly discarded by Ld. Trial Court by placing reliance on the judgment of Hon'ble Apex Court in C.C.Alavi Haji vs. Palapetty Muhammad & Anr., (2007) 6 SCC 555 in para 7 & 8 of the impugned judgment by observing that even if it is admitted for the sake of arguments that the appellant did not receive the legal notice prior to filing of the complaint case u/s 138 of N.I. Act, he could have made the payment of the cheque amount within 15 days of the receipt of summons of the complaint case which he did not.
12. In response to notice u/s 251 Cr.P.C., the appellant stated "I had given the cheque in question on one shop in Subhash Nagar Market to one person namely Sh. Arun Khosla as I used to purchase electronic items from him and it was understanding between us to give blank security cheques."
Ld. Trial Court dealt with this submission in para 9 of the impugned judgment and observed that the appellant did not examine Arun Khosla to prove that he had any transaction with Arun Khosla qua purchase of electronic items from him or that he had handed over the cheque in question to Arun Khosla despite having availed several opportunities to examine this witness.
Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page6of10
13. In the instant appeal, it is submitted that Arun Khosla was not required to be examined by the appellant. It is appellant's defence that he had handed over the cheque in question to Arun Khosla. Arun Khosla was, therefore, a necessary defence witness who could have thrown light on the defence of the appellant as to whether he received the cheque in question from the appellant and in that case how complainant came in possession of the cheque in question. Non- examination of Arun Khosla as defence witness certainly weakens the case of the appellant that he handed over the cheque in question to Arun Khosla because it is not explained by the appellant as to how the complainant came in possession of the said cheque.
14. Further contention of the appellant in response to notice u/s 251 Cr.P.C. is that he did not know the complainant and he had not taken any loan from the complainant. Having admittedly signed the cheque drawn on his bank account, the appellant cannot wriggle out the liability created thereunder by taking frivolous plea that he did not know the complainant and had no transaction with him .
15. The impugned judgment is further assailed on the ground that the complainant had no financial capability to advance a huge amount of loan to the appellant which he did not mention in his ITR. Said contention of the appellant/accused that the complainant's failure to file any income tax returns reflecting the advancement of the loan in question to the accused is fatal flaw in the complainant's Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page7of10 case can be discarded by placing reliance on the Judgment in Krishna P. Murajkar Vs. Joe Ferrao- 2013 ACD 942 Bombay, which is to the effect:-
"Any default in paying tax is a matter between the defaulter and revenue authorities and it is not a ground in law to deny avenues open to the complainant for recovering the loan amount".
16. Hon'ble Apex Court in case of M/s Laxmi Dyechem v. State of Gujraj & Ors., Criminal Appeal Nos. 1870-1909 of 2012, decided on 27.11.2012 qua Section 138 of NI Act observed that " ... the object underlying the provision contained in the said Chapter was aimed at securing faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence ...".
The Hon'ble Apex Court in case titled State of Tamil Nadu v. M.K. Kandaswami, (1975) 4 SCC observed that "while interpreting a penal provision u/s 138 of NI Act, endevour should be made to preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile."
Further, in Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza (2003) 3 SCC 232, Hon'ble Supreme Court, while dealing with the objects of the Act, observed as follows:-
"26... The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page8of10 honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long drawn matter and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
17. The loan was taken way back in the year 2012. Instead of making efforts to pay back the same, he tried every trick in the trade to retain unjust enrichment. He has been able to procrastinate the proceedings by taking false & frivolous pleas to avoid re-payment of the loan. He has not shown any bonafide intention to liquidate the loan since the year 2012 and even after filing of the complaint case. The conduct of the appellant is, therefore, not in consonance with the aim and objective of the Act as discussed above in M/s Laxmi Dyechem v. State of Gujraj & Ors. (supra) and State of Tamil Nadu v. M.K. Kandaswami (supra) and Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza (supra).
18. Keeping in view the said aim of the Act, the fact that defence put forth by the appellant lacks credibility, I endorse the conviction Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page9of10 recorded by the Ld. Trial Court rejecting the story of the appellant of misuse of blank signed cheque in question by the complainant.
19. In view of the foregoing reasons, the aforesaid appeal is dismissed. The impugned conviction and order on sentence are, therefore, upheld. Ld. Trial Court is directed to secure the presence of the appellant/ convict for undergoing the sentence imposed vide impugned order on sentence dated 29.05.2015.
TCR be sent back forthwith along with copy of the judgment. Appeal file be consigned to Record Room.
Announced in Open Court ( Rekha Rani ) today this the 2nd day of District & Sessions Judge / (West) April, 2016 Tis Hazari Courts, Delhi Crl. App. No.25/15 Rajesh Bajaj vs. Ravinder Jagga Page10of10