Delhi District Court
Shri Tilak Singh Yadav vs Shri. S.P. Pandey on 6 September, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 61/12
Unique case ID No. 02404R0091662011
Shri Tilak Singh Yadav
Resident of BFH9,
Shalimar Bagh (West)
New Delhi110088
Appellant
Versus
Shri. S.P. Pandey,
S/o Sh. Ram Chander Pandey
R/o CC142B,
Shalimar Bagh (West)
New Delhi110088
.....Respondent
Date of institution of the case: 24/07/12
Arguments heard on: 24/08/2012
Date of reservation of order: 24/08/2012
Date of Decision: 06/09/2012
JUDGMENT
This is a Criminal Appeal filed u/s 374 of Cr.P.C against the impugned judgment and order on sentence, which have been challenged on various grounds.
It is contended that cheque was not issued in discharge of any CA No.61/12 1/18 debt or liability and was without any consideration. It is further contended that the complaint is barred by limitation. It is further contended that complaint is vague and material particulars have not been disclosed, so the same is not maintainable. It is further contended that demand notice was not confined to the cheque amount but the interest was also demanded, hence the same was defective. It is further contended that Ld Trial Court did not vest any jurisdiction to condone the delay. It is further contended that cheque was given for the purpose of providing loan to the complainant and since the complainant miserably failed to comply with the pre condition of the appellant, so no amount was paid to him.
It is further contended that said undated cheque remained in the possession of the complainant, which he manufactured later on. It is further contended that said cheque was given to the complainant for providing loan on 15.04.2001. However, no date was mentioned by the appellant on the same. It is further contended that legal demand notice was not served upon the appellant, hence the complainant was not maintainable. It is further contended that complainant presented the cheque in question more then once occasion but did not disclose the same and lastly it was returned with the remarks of 'account closed', so thereafter the complainant was not having any occasion to represent the said cheque on 12.08.2012, when he came to know in the first week of August 2002 that the account of the appellant has been closed.
It is further contended that complainant is not inspiring any confidence and wrongly has been relied upon by Ld Trial Court. It is further contended that Ld Trial Court has failed to appreciate the evidence in its CA No.61/12 2/18 correct manner. It is further contended that Ld Trial Court erred in mentioning the punishment of one year and fine and in default of fine further awarded six months imprisonment and both the sentences shall run consecutively and imposition of in default sentence was beyond the jurisdiction of Ld Trial Court.
It is further contended that even in default of payment of fine, a sentence can be imposed, which cannot exceed one fourth of the substantive sentence and substantive sentence is of one year, thus the maximum imprisonment in case of default of payment of fine can be of three months only, thus the imposition of six months sentence is beyond the jurisdiction of Ld Trial court and is illegal as this case was filed before the amendment in negotiable Instrument Act brought in the year 2002, so at the most three months imprisonment could have been awarded and not more than that.
It is further contended that Ld Trial Court instead of counting the time from the Registered AD receipt dated 28/08/02 regarding service of notice took the help of section 27 of General Clauses Act to bring the case within the criminal limitation, which itself is illegal.
I have heard the counsel for appellant, Ld counsel for respondent and have gone through the TCR.
In brief, this complaint was filed u/s 138 of N.I. Act. Notice was given to appellant on 25/08/2005, wherein he did not disclosed any defence. During the proceedings, appellant filed an application u/s 204 of Cr.P.C read with section 142 of N.I. Act, for dismissal of the complaint case, after about three years of summoning order, which was dismissed 01/07/2006 and the said order was not challenged at any time.
CA No.61/12 3/18
According to the record , statement of accused u/s 313 of Cr.PC was recorded on 18/07/06, where in response to the question, whether he wants to lead any defence evidence, the appellant had replied that he does not want to lead any defence evidence because it was not required.
Thereafter, on 31/07/06, appellant/accused filed an application to appear as a witness. Same was allowed subject to cost of Rs. 200/ and the matter was fixed for defence evidence. On 14/08/2006, again appellant/accused sought adjournment without assigning any cogent reason. Ld Trial Court observed that as per the order of Hon'ble High Court of Delhi dated 17/07/2006, matter was to be proceeded and Ld Trial court was directed not to grant any unnecessary adjournment, so defence evidence was closed and matter was fixed for final arguments on 28/08/2006.
Thereafter, the appellant/accused was convicted and matter was fixed for hearing on sentence but was adjourned on various grounds and lastly on 02/02/07, appellant/accused submitted before the Court that he was ready to pay the amount of Rs.3 lacs in total in three installments, so in view of the statement of both the parties, as complainant also agreed to the same, matter was fixed for payment on 28/04/2007.
On 28/04/2007, appellant/accused retracted from the said compromise and filed an application, wherein he alleged that certain incorrect facts were recorded on 02/02/07 and further submitted that there was no possibility of compromise between the parties. Ld Trial Court observed that no incorrect facts were recorded on 02/02/07, hence the said application was dismissed.
Even, thereafter, appellant/accuses sought seven dates of hearing CA No.61/12 4/18 on sentence. Appellant/accused was convicted in this case on 11/12/06 but he protracted the trial for a long time and on 22/08/07, he made allegations that he was never heard during the trial of the case by the Court and moved an application stating his submissions for erroneous conviction. Lastly order on sentence was passed on 01/09/2007, so the appellant/accused dragged the matter for about 9 months only on the point of hearing on sentence.
During the trial, complainant examined himself as CW1 and one Ramesh, Record Clerk from Union Bank of India as CW2.
During the proceedings, the appellant/accused had also approached the Hon'ble High Court of Delhi and Hon'ble Supreme Court of Delhi for quashing the proceedings. The Hon'ble Supreme Court of India disposed of the criminal appeal no. 1260/2007 vide order dated 28/01/2011 and further Hon'ble High Court of Delhi disposed of the criminal M.C. No. 4035/2006 vide order dated 18/03/2011 and directed Additional Sessions Judge to entertain the appeal, if filed within 15 days from the date of the said order, without considering the period of limitation and consequently the present appeal was filed.
Ld counsel for appellant/accused has challenged the impugned judgment and order on sentence on various grounds i.e.
1. the complaint is barred by limitation
2. there was no service of notice upon the appellant/accused
3. findings of Ld Trial Court are incorrect and erroneous, in view of facts and circumstances brought on record
4. no opportunity of defence evidence was given to appellant/accused and
5. cheque was issued without any consideration, hence there was no CA No.61/12 5/18 legally enforceable debt against the appellant/accused.
In respect of the first contention, Ld defence counsel has drawn the attention of the Court towards postal receipt dated 28/08/09 and further AD card, which is not bearing the signatures of appellant/accused as recipient of legal demand notice. Ld defence counsel has further contended that if the registered AD letter was dispatched on 28/08/09, although the same is disputed because during the evidence, the complainant has admitted in the cross examination that notice was sent on the same day on which it was got drafted i.e. 26/08/02, even then if it is presumed that registered AD notice was dispatched on 28/08/02, then it could have been served upon the appellant/accused within 23 days and if it is assumed that notice was served, although not in person, on the appellant/accused on or around 01/09/02, then in view of the old provisions of Negotiable Instrument Act before amendment of 2002, the time for payment was available to the appellant/accused of 15 days and thereafter the complaint could have been filed within one month, so at the most, complaint could have been filed on or before 15.10.02.
Ld defence counsel has further contended that Ld Trial Court instead of considering, these facts relied upon section 27 of General Clauses Act, which was not required to be invoked, in any manner.
The notice was correctly addressed and was served through registered AD on which date of service is appearing as 02/09/2002. In the statement recorded u/s 313 Cr.PC, appellant/accused has stated that legal demand notice was received on his behalf by some member of his family, which shows that service of legal demand notice has not been denied by the CA No.61/12 6/18 appellant/accused, in any manner and it cannot be said that service of legal demand notice was not within the knowledge of appellant/accused. The reply given by appellant/accused as recorded in statement u/s 313 Cr.PC can be considered against the appellant/accused, which is in corroboration with the evidence brought on record by the complainant regarding the service of legal demand notice through registered AD.
Mere denial is not sufficient to say that legal demand notice was not served upon appellant/accused in person. The appellant/accused has stated in his statement recorded u/s 313 Cr.PC that legal demand notice was received on his behalf by some member of his family. The appellant/accused never objected the same, which shows that he has authorised the said family member to receive the notice on his behalf, so there is sufficient compliance of section 138 of N.I.Act. Notice can be served upon a person in person and or on any other person, as authorised by him to receive the notice on his behalf and in this case, it was for appellant/accused to state and prove that the said family member was not authorsied to receive the notice on his behalf, rather appellant/accused has stated that notice was served upon some family members on his behalf, which shows the conduct of the accused that he has disputed the service of notice just for the sake of objection and to delay the trial.
The AD card is bearing the date of service of notice as 02/09/02 and the appellant/accused was having 15 days to make the payment, so he was required to pay the legal enforceable debt as demanded till 17.09.2002 and thereafter, complaint could have been filed within one month i.e. 17.10.02 but the complaint has been field before that date i.e. on 16.10.02, so CA No.61/12 7/18 the complaint is within the period of limitation.
The postal stamp of 02/09/02 appearing on AD card, is the date, when AD card was signed by the receiver of the said Legal demand notice and it must have been received by the respondent one or two days thereafter. So, if the period of limitation is calculated from the date of the receipt of AD card by the complainant then the same comes to 19 th or 20th of October, so the complaint is otherwise well within the period of limitation.
Notice was correctly addressed and appellant/accused has not challenged the address, on which, notice was sent to appellant/accused. The appellant/accused has not challenged the service of notice as such The appellant/accused has not cross examined the complainant that legal demand notice was not served upon him and if it was not served upon him then burden to prove the same was upon the appellant/accused as to upon whom the said notice was served and the circumstance due to which he did not come to know about the receipt of notice by someone on his behalf. The appellant/accused has not raised any defence that he did not come to know about the notice, hence he was unable to reply the legal demand notice or to pay the legally enforceable debt.
The circumstances of service of notice at the house of appellant/accused could have been explained by himself only and no other person particularly complainant could have been in a situation to explain the same as to by whom, the notice was received. If the notice was not received nor it came in the knowledge of the appellant/accused then it was for the appellant/accused to plead the same and to suggest the complainant to that extent and further to prove the same. The testimony of complainant CA No.61/12 8/18 regarding service of notice is unrebutted.
It has been held in Criminal Appeal No. 19/2007 titled as Rakesh Kumar V. State that "the statement made by accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution."
It has been held in AIR 2007 SC 848 titled as Bhishnu Prasad Sinha Vs state of Assam that "it is well settled that statement u/s 313 Cr.PC cannot form the sole basis of conviction but the effect thereof may be considered in the light of other evidence brought on record."
It has been held in AIR 2010 Supreme Court 3570 titled as Sanatam Naskar and Anr. v. State of W.B that "As already noticed, the object of recording the statement of the accused under section 313 of Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version of reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with the simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to crossexamine him. However, if CA No.61/12 9/18 the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences, such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of section 313(4) of Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution."
So the contention of Ld counsel for appellant/accused are not forceful to the extent that complaint is barred by limitation and notice was not served upon the appellant/accused.
In respect of the findings of Ld Trial Court regarding legally CA No.61/12 10/18 enforceable debt, the counsel for appellant has contended that appellant/accused has not taken any loan from the respondent rather he had issued the cheque for providing loan to the respondent and it has been stated so, by appellant/accused in his statement recorded u/s 313 Cr.PC. The Ld counsel for appellant/accused has further contended that before clearance of cheque, he demanded some surety from respondent/complainant but he refused to give the same, so cheque could not be encashed and the complainant/respondent filed the present case in a fit of anger. Ld counsel for appellant/accused has further contended that plea of appellant/accused that the fact that he had issued cheque on 15/04/01 and not on 15/02/02 has also not been considered by Ld Trial Court in its correct perspective.
In statement u/s 313 of Cr.PC the appellant/accused has admitted that he had issued the cheque but it was undated and dated of 15/02/02 was filled up later on and the amount of Rs. 3,19,000 was mentioned by him and he had given the said cheque as loan and not in discharge of any liability.
I have seen the cheque in question, there seems to be no difference in writing on the date appearing on cheque i.e. 15/02/2002 and the name of complainant with the amount mentioned in the cheque i.e. 3,19,000/. During the trial, complainant has not been cross examined on this aspect, in any manner that cheque was undated and was issued in the year 2001 on which date of 2002 has been mentioned. Even no suggestion to this effect was given in the cross examination to the complainant and later on appellant/accused did not lead any defence evidence, in this respect. In the cross examination, complainant has specifically stated that he had paid the loan in cash to the appellant/accused. He had given money to accused by CA No.61/12 11/18 arranging from his friends and complainant has denied the suggestion that he had manipulated the cheque or had not given any loan to the accused. So in absence of any such cross examination of complainant, it seems to be an afterthought that cheque was given undated and date was filled up later on of 15/02/02.
The cheque was presented for encashment within the period of six months and lastly, it was returned on 13/08/02 with remarks that account was closed. Ld counsel for appellant has contended that at the time of first time presentation of cheque for encashment, account was closed, hence there was no occasion for the respondent to present the cheuqe again for encashment and the second time, it has been presented just to make the case against appellant/accused for the period of limitation.
According to statement of CW2, Ramesh, Record Keeper , Union Bank of India, the appellant/accused got closed the account on 05/08/02, which itself is falsifying the contention that complainant already came to know about the closure of the account. No evidence has been brought on record that cheque was presented twice after 05/08/02. So the contention of counsel for appellant/accused is not tenable, in any manner that complainant came to know that account was closed before last presentation of cheque and there was no occasion for him to represent the cheque for encashment again. The cheque is dated 15/02/02 and it could have been presented within six months till 15/08/02.
The cheque returning memo is dated 13/08/02 and in the cross examination, the complainant has stated in para 6 of his affidavit/CW1/1, that cheque returning memo was dated 13/08/02 and according to his CA No.61/12 12/18 knowledge, cheque was returned due to insufficient fund. The complainant has been cross examined regarding previous presentation of the cheque, which in my opinion are not related, in any manner because on previous occasions, when the cheque was dishonoured, complainant did not issue any legal demand notice, so for the purpose of period of limitation, the previous occasion of dishonour of cheque and the presentation of cheque are of no consequence, in any manner.
Appellant/accused has not raised any defence that prior to the demand notice Ex. PW1/D, earlier also respondent got issued legal demand notice, so the cross examination, in this respect regarding previous presentation of cheque is of no consequence. It has come in the cross examination of the complainant that cheque returning memo was received by him on 16/08/02. even if, we assume that cheque returning memo dated 13/08/2002 was received on the same day by complainant, even then he got issued legal demand notice on 28/08/02 and prior to that on 26/08/02, he got issued the legal demand notice by some other mode, so, notice was issued within the period of 15 days, as was provided at that time, before the amendment of 2002 in negotiable Instrument Act. In such circumstances, there is no ambiguity or discrepancies in finding of Ld Trial court in this respect and rightly relied upon the complainant.
Ld counsel for appellant/accused has further contended that Ld Trial court did not provide any opportunity for defence evidence to the appellant/accused, which has caused grave miscarriage of justice. In this respect, order of Ld Trial Court is ample clear. In the statement recorded u/s 313 Cr.P.C, appellant/accused did not opt for any defence evidence on CA No.61/12 13/18 18/07/06 but on 31/07/06, he filed an application to appear as a witness, which was allowed subject to cost of Rs.200/ . The appellant/accused did not pay the cost and further failed to examine himself in defence evidence on 14/08/06. Matter was pending since the year 2002, so the defence evidence was closed, vide order dated 14/08/06. The appellant/accused did not challenge the said order before the appellant authority, so at this stage, in the appeal, it cannot be agitated that Ld Trial Court did not provide any opportunity for defence evidence rather appellant/accused was not clear whether he wanted to examine any defence evidence, so he did not opt for the same, in statement recorded u/s 313 of Cr.PC. However, thereafter he filed an application for his examination in defence evidence but again he failed to examine himself and did not pay the cost of Rs. 200/, as imposed. appellant/accused did not challenge the said order, in any manner, so the conduct of appellant/accused itself speaks about the course of proceedings, which he adopted to delay the trial of the case. Hence such arguments of Ld counsel for appellant/accused are not tenable, in any manner.
Ld counsel has further contended that cheque was issued without any consideration and there was no legally enforceable debt, so the conviction of appellant/accused is bad in law.
In this respect, according to notice CW1/D, which was duly served on the appellant/accused, he had taken loan on Rs. 3 lacs and agreed to repay the same with interest at the rate of 18% per annum. It was further mentioned in the notice that in discharge of the same, appellant/accused issued the cheque in question of the amount of Rs. 3,19,000/ including interest till 15/02/02. This notice has not been replied by the CA No.61/12 14/18 appellant/accused, in any manner nor CW1 i.e. complainant has been cross examined, in any manner that no such loan was obtained. Only suggestion has been given, to the complainant that he had not given any loan to the accused but it is not suggested that no cheque was issued of Rs. 3,19,000/ in discharge of the legally enforceable debt in favour of complainant/respondent. In the cross examination, CW1, complainant has specifically stated that accused issued cheque for the sum of Rs. 3,19,000/ including interest and he had paid the loan on cash.
In the statement recorded u/s 313 of Cr.P.C, appellant/accused raised the defence that he had issued cheque to the respondent for providing him loan and before the clearance of cheque, he demanded security to which he refused, so cheque could not be encashed. This seems to be an afterthought. More so, this fact has not been proved by leading any defence evidence, in any manner. So the contention of Ld counsel for appellant/accused that cheque was issued without any consideration is not forceful, in any manner and is not tenable.
In support of his contentions, Ld counsel for appellant/accused has relied upon (2006) 9 Supreme Court Cases 784 titled as P.T. Ratnakaran V V.K. Prabhakaran and another and has contended that sentence in default could not have been imposed as the same has not been provided in Negotiable Instrument Act in default of payment and fine. This contention of Ld counsel for appellant/accused is itself contrary to the contents of appeal and arguments, wherein Ld counsel for appellant/accused has contended that in default , one fourth sentence of substantive sentence can be awarded in default of payment of fine, so the stand taken by appellant/accused is itself CA No.61/12 15/18 contradictory, hence the judgment is not applicable to the facts and circumstances of this case.
In support of his contention regarding defence evidence, Ld counsel for appellant/accused has relied upon (2008) 5 Supreme Court Cases 633 titled as T. Nagappa Vs Y.R. Muralidhar, wherein it has been held that " What should be the nature of evidence is not a matter which should be prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of subsection (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an
(b) an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. if permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."
In my view, neither the contentions nor the judgment relied upon is applicable to the facts and circumstances of the present case because application for examination of appellant/accused as defence witness was allowed subject to cost of Rs.200. Ld Trial Court was not requested to issue summons to any witness because appellant/accused himself was to be examined as defence witness but despite opportunity, appellant/accused failed to examine himself in his defence.
It was for the appellant to rebut the presumption raised by Ld Trial Court in favour of the respondent, as per law, which he failed to rebut CA No.61/12 16/18 by cross examining the complainant/respondent and further failed to examine any defence witness.
In view of above, there is no infirmity or illegality in the findings of Ld Trial Court, to held guilty and convicted the appellant for offence u/s 138 of N.I. Act vide judgment dated 11/12/06. Ld Trial Court has appreciated the evidence in its correct manner and has discussed and appreciated all the objections and arguments raised by appellant according to the law applicable and evidence brought on record.
Accordingly the judgment dated 11/12/06 is upheld and appeal is dismissed.
Vide order dated 01/09/07, Ld Trial Court has awarded one year RI for committing offence u/s 138 of N.I. Act alongwith fine of Rs. 3 lacs and in default of payment of fine to suffer imprisonment for six months and both the sentences will run consecutively.
In this respect, the contention of Ld counsel for appellant is forceful that one fourth of the substantive sentence can be awarded in default and in this case, substantive sentence was one year RI, so the maximum sentence of three months SI could have been imposed in case of default of payment fine because at that time, the offence before the amendment of 2002 was punishable with the imprisonment of one year only. So in my view, the sentence awarded of one year RI for offence u/s 138 of NI.ACt , as per order dated 01/09/2007 is not requiring any interference, accordingly the sentence of one year RI is upheld and the appeal is dismissed to that extent.
CA No.61/12 17/18
However, the contention of Ld counsel for appellant regarding the imposition of fine and in default of payment of fine, six months SI are forceful, hence this part of imposing fine of Rs. 3 lacs with ID of six months is set aside. No fine is imposed and instead compensation to the tune of Rs. 6,38,000/ is imposed payable to the complainant and in case of default of payment of compensation, appellant shall further undergo SI for three months. Order on sentence dated 01/09/2007 is accordingly modified.
Accordingly, appeal is dismissed and appellant be taken into custody to serve the sentence.
TCR be sent back with the copy of the order.
Appeal file be consigned to record room.
Announced in Open Court on (Virender Kumar Goyal)
dated: 6th of September, 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CA No.61/12 18/18
CA No.61/12 19/18