Delhi District Court
Murti vs . Sunita Sharma And Anr. on 29 May, 2013
Murti Vs. Sunita Sharma and anr.
CA NO: 30/13
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, NEW DELHI
CA NO: 30/13
Murti
W/o late Kanwar Singh
R/o Flat No.306, Pocket-13
DDA Flats, Manglapuri
Palam, New Delhi-110 045. ... Appellant
Versus
1. Sunita Sharma
W/o Om Prakash
R/o WZ-2A, Gali No.8
Sadh Nagar, Palam Colony
Palam, New Delhi-110 045.
2. State of NCT of Delhi. ... Respondents
Date of institution of appeal : 30.03.2013
Date on which judgment reserved : 20.05.2013
Date on which judgment pronounced : 29.05.2013
JUDGMENT
1. Vide the present appeal, the appellant has challenged the judgment dated 27.02.2013 (hereinafter referred to as impugned judgment) of the ld.trial court vide which he was convicted u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) and sentence order dated CA No: 30/13 1/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 28.02.2013 (hereinafter referred to as impugned sentence order) of the ld.trial court vide which he was sentenced to simple imprisonment for a period of three months and to pay a compensation amount of Rs.2,15,000/- to the respondent no. 1/complainant.
2. The grounds of challenge of the impugned judgment and impugned sentence order are as follows:- a) Firstly, that impugned judgment and impugned sentence order are totally based upon conjectures and surmises as appellant/convict has successfully rebutted the presumption in favour of respondent no.1/complainant that the cheque in question was issued for lawful liability.
3. Secondly, on the ground that impugned judgment and impugned sentence order are liable to be examined as to their correctness, legality and propriety of findings recorded by the ld.trial court.
4. Thirdly, on the ground that the impugned judgment and impugned sentence order have been passed by the ld.trial court in a very hasty manner.
5. Fourthly, on the ground that the ld.trial court did not consider material facts and evidences on record in rational and judicious manner.
6. Fifthly, on the ground that respondent no.1/complainant has concealed many true and material facts and has misrepresented them.
CA No: 30/13 2/11Murti Vs. Sunita Sharma and anr.
CA NO: 30/13
7. Sixthly, on the ground that ld.trial court has not appreciated the legal proposition that the complaint case is apparently premature and has been filed without any cause of action. There was no cause of action in favour of respondent no1/complainant and against appellant/convict at the time of filing of case and taking of cognizance of the same, therefore, no offence u/s 138 of the NI Act is made out.
8. Seventhly, on the ground that ld.trial court has not appreciated the evidence on record that return memo Ex.CW1/B is not in the name of respondent no.1/complainant. Moreover, the respondent no. 1/complainant has not examined the concerned bank official on this material point of evidence.
9. Eighthly, on the ground that the ld.trial court has not appreciated the evidence on record that respondent no.1/complainant has admitted in her cross that one handwritten document/receipt of money dated 01.12.2009 Ex.CW1/D1 was signed by her in which it has been admitted that respondent no.1/complainant received Rs. 2,00,000/- from Smt.Saroj and her mother namely Murti, who is appellant/convict herein.
10.Ninethly, the ld.trial court has not granted sufficient opportunities to the appellant/convict for leading defence evidence.
11.Tenthly, on the ground that if impugned judgment and impugned sentence order are not set aside, then it would definitely cause grave injustice and prejudice to appellant/convict being illiterate.
CA No: 30/13 3/11Murti Vs. Sunita Sharma and anr.
CA NO: 30/13
12.Lastly, on the ground that ld.trial court has failed to appreciate the various material contradictory/rebuttal statements and evidences on record and therefore, the impugned judgment and impugned sentence order, both are completely improper and illegal and hence, liable to be set aside.
Accordingly, a prayer is made to set aside the impugned judgment and impugned sentence order.
13. Notice of the appeal was issued to respondents. Respondent no.1 chose not to file reply.
14.I have heard counsel for appellant, ld.Addl.PP for respondent no.2 and counsel for respondent no.1. I have also summoned the trial court record and have carefully perused the same.
15. I have carefully perused the impugned judgment of the ld.trial court. The impugned judgment reflects that appellant has been convicted on the basis of unrebutted testimony of respondent no. 1/CW1 to the fact that she had given friendly loan of Rs.1,70,000/- to the appellant and this fact was also admitted by the appellant in her examination u/s 313 Cr.P.C. The appellant also admitted the issuance of cheque Ex.CW1/A in her examination u/s 313 Cr.P.C. The defence of the appellant before the ld.trial court was that she has paid the entire loan amount and to rebut the presumption u/s 118 and 139 of the NI Act, appellant had put receipt Ex.CW1/D1 to the respondent no.1 in her cross examination which was duly admitted by the respondent no.1 to have been issued by her after going through the contents. However, ld.trial court observed in the CA No: 30/13 4/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 impugned judgment that receipt Ex.CW1/D1 is a manipulated document and no witness was examined by the appellant to prove contents of receipt Ex.CW1/D1 and accordingly, did not give any weightage to receipt Ex.CW1/D1. Accordingly, the appellant was convicted for the offence u/s 138 of the NI Act vide the impugned judgment.
16.It was contended by the counsel for appellant during the course of arguments that receipt Ex.CW1/D1 which has been duly admitted by the respondent no.1 proves that appellant had repaid the loan amount to the respondent on 01.12.2009 and on date of presentation of cheque Ex.CW1/A on 30.12.2009, there was no liability against the appellant. Ld.counsel for appellant also submitted that it has come in the cross examination of CW1/respondent no.1 that there was only one money transaction between the appellant and respondent no.1 and, therefore, receipt Ex.CW1/D1 is with regard to loan advanced by respondent no.1 which stands repaid by the appellant. Hence, cheque was not issued for any liability. Accordingly, it was prayed that appellant be acquitted for the offence u/s 138 of the NI Act.
17.On the other hand, ld.counsel for respondent has submitted that receipt Ex.CW1/D1 was issued by the respondent no.1 with regard to loan of Rs.20,000/-taken from Saroj, who happens to be the daughter of appellant and said receipt has been manipulated by adding "0" to Rs.20,000/- and also by adding the name of appellant in the last line of receipt Ex.CW1/D1. Hence, ld.trial court rightly held that receipt Ex.CW1/D1 is a manipulated document and has CA No: 30/13 5/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 ignored the same and held that cheque was issued in discharge of legal liability by the appellant.
18.It was further submitted by counsel for respondent that very fact that receipt Ex.CW1/D1 is of 01.12.2009 and cheque is dated 28.12.2009 further proves that cheque was issued in discharge of legal liability by appellant as there was no occasion for the appellant to have issued cheque on 28.12.2009 once she has repaid the loan amount vide receipt Ex.CW1/D1 on 01.12.2009.
19.Lastly, It was contended by the counsel for respondent no.1 that in her examination u/s 313 Cr.P.C.appellant had duly admitted that she has taken loan of Rs.1,70,000/- from the respondent no.1 and had also admitted regarding issuance of cheque Ex.CW1/A for Rs. 1,70,000/- but in her reply, she had taken a contrary defence of having taken loan of Rs.1 lac @ 5% per month interest. Therefore, in the light of contrary defence, the plea of appellant that loan stands repaid cannot be believed. Accordingly, it was prayed that appeal be dismissed.
20.I have considered the rival submissions made by respective counsels and perused the trial court record and evidence led on record.
21.In the cross examination of CW1 i.e.respondent no.1, it is admitted by her that there is only one money transaction between her and the appellant. The respondent no.1 also admitted to have executed receipt Ex.CW1/D1 after reading the same. The receipt CA No: 30/13 6/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 Ex.CW1/D1 mentions the fact that respondent no.1 has received the amount of Rs. 2 lacs both from Saroj and appellant. It has also come in the evidence of respondent no.1 by affidavit that cheque Ex.CW1/A was given in the month of August, 2009 as a post dated cheque.
22.The defence of appellant, as made out from her examination u/s 313 Cr.P.C. is that she had repaid the loan amount. The defence of appellant regarding repayment of loan amount stands proved by receipt Ex.CW1/D1 which records the acknowledgment by respondent no.1 of having received Rs. 2 lacs from the appellant and Saroj. The respondent no.1 while making admission regarding execution of receipt Ex.CW1/D1 nowhere submitted that receipt Ex.CW1/D1 is a forged document or has been executed with regard to loan taken by Saroj or that same was not executed with regard to loan of Rs.1,70,000/- given to appellant. Once there was unconditional admission made by respondent no.1 with regard to receipt Ex.CW1/D1, the onus put upon the appellant to rebut the presumption stood discharged and the onus again shifted upon the respondent no.1 to have proved that receipt Ex.CW1/D1 was not with regard to loan amount in question. However, no evidence was led in rebuttal by respondent no.1 to have proved that receipt Ex.CW1/D1 was with regard to loan taken by Saroj and was not with regard to loan taken by appellant of Rs.1,70,000/-. The receipt Ex.CW1/D1 also assumes importance in the light of fact that there was only one transaction between the appellant and the respondent no.1 as per the admission made by respondent no.1 in her cross examination and since respondent no.1 admitted of CA No: 30/13 7/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 having received Rs.2 lacs from the appellant and Saroj, therefore, loan amount of Rs.1,70,000/- stood repaid to respondent no.1 as per receipt Ex.CW1/D1.
23.The observation made by ld.trial court that receipt Ex.CW1/D1 is a manipulated document, is contrary to the evidence led on record by respondent no.1. Once respondent no.1 had admitted due execution of receipt Ex.CW1/D1 after going through the contents of the same, the ld.trial court committed grave illegality in coming to the conclusion that receipt Ex.CW1/D1 is a manipulated document. Once respondent no.1, who had executed the document after going through the contents of the same had admitted about its genuineness then there was no material on record before the ld.trial court to have observed that receipt Ex.CW1/D1 is a manipulated document.
24.Further, the observation made by ld.trial court that receipt Ex.CW1/D1 has not been proved as no witness has been examined to prove its contents is contrary to record as its contents have been duly proved by respondent no.1, who has deposed in her cross examination that she has signed the same after going through the contents. Once respondent no.1 had herself admitted contents of receipt Ex.CW1/D1, no other witness was required to prove the contents of the same and the ld.trial court wrongly gave a finding that contents of receipt Ex.CW1/D1 were not proved.
25.Further, the ld.trial court wrongly came to the conclusion that receipt Ex.CW1/D1 is a manipulated document on the basis of oral CA No: 30/13 8/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 arguments of counsel for respondent no.1 as any oral statement or evidence which is contrary to contents of document is inadmissible in the light of Section 91 and 92 of the Indian Evidence Act, 1872. Therefore, document Ex.CW1/D1 was duly proved before the ld.trial court and appellant rebutted the presumption that cheque was issued in discharge of any legal liability.
26.The contention of counsel for respondent no. 1 that receipt Ex.CW1/D1 was issued with regard to loan of Rs.20,000/- taken by Saroj and was not issued with regard to loan amount of Rs. 1,70,000/-taken by appellant, cannot be accepted as there is no evidence on record led by respondent no.1 to show that receipt Ex.CW1/D1 was issued only to Saroj with regard to loan of Rs. 20,000/- taken by her. On the contrary, if submission of counsel for respondent no.1 is accepted that loan of Rs.20,000/-was also taken by Saroj, who happens to be the daughter of appellant then it is quite possible that receipt Ex.CW1/D1 mentions the name of appellant and her daughter Saroj as both had repaid loan of Rs. 1,70,000/- and Rs.20,000/-respectively. Therefore, this contention of counsel for respondent no.1 is not acceptable as receipt Ex.CW1/D1 was only issued with regard to loan taken by Saroj and not with regard to loan of Rs.1,70,000/- taken by appellant.
27.The other contention of counsel for respondent no.1 was that there was no occasion for the appellant to have issued cheque on 28.12.2009 if she had made the payment of loan amount vide receipt Ex.CW1/D1 on 01.12.2009. Said contention is not acceptable as it has come in the evidence of respondent no.1 that CA No: 30/13 9/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 cheque Ex.CW1/A dated 28.12.2009 was taken in advance by respondent no.1 at the time of grant of loan in August, 2009. Therefore, question of appellant issuing cheque after making payment on 01.12.2009 vide receipt Ex.CW1/D1 does not arise. Hence, this contention is accordingly rejected.
28.The last contention of counsel for respondent no.1 that there is a contradiction in the defence of appellant as in her examination u/s 313 Cr.P.C., she has admitted of having taken loan of Rs. 1,70,000/-whereas in her reply to legal notice, she has stated of having taken loan of Rs.1 lac. Therefore, in the light of contradiction in the defence of appellant, her defence becomes shaky and cannot be believed. This contention is also not acceptable as reply to legal notice of appellant has not been proved before the ld.trial court by the respondent no.1 and the ld.trial court vide impugned judgment has rightly discarded the reply of appellant being a photocopy and being not supported with proof of postal receipt. Even otherwise, said reply was never tendered in evidence either by respondent no.1 or by appellant and has not been proved as per law. Therefore, the reply of appellant cannot be looked into since the same has not been tendered in evidence. If reply of appellant is ignored then there is no contradiction in the defence of appellant with regard to repayment of loan of Rs.1,70,000/-. Accordingly, this contention is also rejected.
29.In the light of above discussion, since appellant was able to duly rebut presumption u/s 118 and 139 of the NI Act by proving receipt CA No: 30/13 10/11 Murti Vs. Sunita Sharma and anr.
CA NO: 30/13 Ex.CW1/D1 wherein receipt of payment of Rs.2 lacs from appellant and Saroj has been admitted by respondent no.1, it can be safely concluded that on the date of presentation of cheque Ex.CW1/A which was admittedly presented after receipt Ex.CW1/D1, there was no existing legal debt or liability. Accordingly, main ingredient of offence u/s 138 of the NI Act was not proved by respondent before the ld.trial court and ld.trial court committed a grave error in returning a finding of conviction against appellant for offence u/s 138 of the NI Act by ignoring the document Ex.CW1/D1. Accordingly, impugned judgment and impugned sentence order are set aside. Appellant is acquitted for the offence u/s 138 of the NI Act. Personal bond/surety bond, if any stands discharged.
30.Put up on 30.05.2013 for filing of bail bond in terms of Section 437A Cr.P.C.
Announced in the open court (Vikas Dhull)
Dated: 29.05.2013 ASJ-01/Dwarka Courts
New Delhi
CA No: 30/13 11/11