Delhi District Court
Sh. Yogender Singh vs Sh. Chirag Sahni on 12 October, 2015
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 81/2015
Unique ID No. 02401R0471512015
Sh. Yogender Singh
S/o Sh. Bhajan Singh
R/o E5, Sewak Park,
Uttam Nagar,
New Delhi110059. . . . . Appellant
versus
Sh. Chirag Sahni
S/o Late Varun Sahni,
R/o 6/16, West Patel Nagar,
New Delhi110008. . . . . Respondent
Date of institution : 04.09.2015
Judgment Reserved on : 12.10.2015
Date of pronouncement : 12.10.2015
JUDGMENT
1. This judgment shall dispose of an appeal i.e. Crl. App. No. 81/15 instituted on 04.09.2015 by the appellant/ convict Yogender Singh against the respondent/ complainant namely Chirag Sahni Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page1of11 whereby the appellant has assailed the impugned judgment dated 07.05.2015 and impugned order on sentence dated 14.05.2015 passed by Ms. Riya Guha, Ld. MM (N.I. Act02), Tis Hazari Courts, Delhi in Complaint Case No.715/PN/10 under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act'), vide which the appellant was held guilty and convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment of two months. The appellant/ convict was also directed to pay Rs.5,00,000/ to the respondent, in default of payment of same, he was further directed to undergo simple imprisonment for a period of three months.
2. The appellant assailed the impugned judgment and order on sentence interalia pleading therein : • that in the year 2007, he had taken a friendly loan of Rs.10,000/ from the respondent for a period of three months which he returned with interest totalling to Rs.12,000/; • that the respondent had taken a blank signed cheque bearing No.290572 drawn on HDFC Bank and some blank signed documents in the nature of promissory note, receipt etc. from the appellant in consideration of the said loan; Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page2of11 • that after clearing friendly loan, the appellant asked the respondent many times to return the blank signed cheque and other blank signed documents but the respondent did not return the same and that since, the appellant had shifted his previous residence, he forgot to take back the blank signed cheque and other blank signed documents from the respondent; • that the respondent/ respondent had filed a false complaint u/s 138 of N.I. Act on the basis of said blank signed cheque and documents.
• that the Ld. Trial Court did not appreciate the version put by him in his defence and since, the respondent has not been able to prove his case beyond reasonable doubt, the conviction of the appellant and consequently, the sentence imposed upon him are not sustainable in law.
3. Notice of the appeal was ordered to be issued to the respondent herein and the records of Complaint Case bearing CC No. 715/PN/10 were requisitioned which have been received and perused.
4. The appellant did not take steps for service of the respondent. None appeared on behalf of the appellant on 23.09.2015 & 06.10.2015 Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page3of11 when undersigned was on leave. None appeared on behalf of the appellant even today i.e. 12.10.2015. Accordingly, the appeal is being disposed off on the basis of material available on record.
5. The case of the complainant /respondent herein culminating in filing the Complaint Case bearing CC NO.715/PN/10, in nutshell, is that he was engaged in the business of properties and the appellant was his family friend. He advanced loan of Rs.2,50,000/ to the appellant in January 2003 which was to be repaid within a period of one year along with interest @24% per annum. The appellant failed to pay the loan amount after expiry of loan term and on intervention of family and friends, a settlement was arrived at between the respondent and the appellant, according to which, the appellant had undertaken to pay Rs.5 Lacs inclusive of interest upto June, 2007 to the respondent. The Settlement Agreement to this effect was executed on 13.06.2007. The appellant had promised to make the said payment on or before 30.06.3008. Even after the expiry of the said period, the appellant failed to make the agreed payment and requested for some more time. At that time, the appellant had issued a promissory note of Rs.5 Lacs in favour of the respondent and promised to make the payment on or before 31.12.2009. As per the Settlement Agreement Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page4of11 and promissory note Ex.CW1/A and Ex.CW1/B respectively, the appellant issued a cheque Ex.CW1/C bearing No.290572 dated 03.09.2010 drawn on HDFC Bank, K.G. Marg, New Delhi for a sum of Rs.5 Lacs in favour of the respondent and assured that the said cheque would be honoured on presentation. However, the said cheque was returned dishonoured with the remarks 'insufficient funds' vide return memo dated 04.09.2010 Ex.CW1/D. However, on assurance of the appellant, the said cheque was again presented but the same was again returned unpaid for the reason 'insufficient fund' vide cheque return memo dated 18.10.2010 Ex.CW1/E. Thereafter the respondent sent legal demand notice dated 29.10.2010 Ex.CW1/F by Speed Post and UPC Ex.CW1/G1 & Ex.CW1/G2 respectively and despite service of the said notice and expiry of statutory period, the appellant failed to pay the cheque amount to the respondent and hence, he filed the complaint case bearing CC NO.715/PN/10 u/s 138 N.I. Act.
6. On appreciation of presummoning evidence recorded under Section 200 CrPC, the appellant was summoned vide order dated 14.12.2010 and he was served with notice under Section 251 Cr.P.C. on 13.08.2013 to which he pleaded not guilty and claimed trial. Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page5of11
7. In his defence, the appellant has stated that he had borrowed Rs.10,000/ from the respondent and after three months, he paid the loan amount of Rs.10,000/ with interest totalling to Rs.12,000/ to the respondent. He had stated that respondent had taken a blank signed cheque and some blank signed documents from him at the time of advancing of loan of Rs.10,000/ and on liquidation of the said amount along with interest amounting to Rs.12,000/, he requested the respondent to return the said blank cheque and documents which he did not and due to lapse of time, the appellant forgot the same and the respondent misused the same and filed false complaint case against him.
8. In his defence, the appellant had examined Sh. Kanaihya as DW1 and he himself stepped into the witness box as DW2.
9. In his crossexamination, the appellant admitted that the Settlement Agreement Ex.CW1/A bears his signatures and also his thumb impression. He further admitted that promissory note Ex.CW1/B bears his signatures. He further admitted that the cheque Ex.CW1/C also bears his signatures and therefore, Ld. Trial Court had drawn presumption under Sections 118 and 139 of N.I. Act, while Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page6of11 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."
10. Having drawn presumption in favour of the respondent in terms of judgment of Hon'ble Apex Court in Rangappa vs. Mohan (supra), onus was shifted to the appellant to create a dent in the case of the respondent. Trial Court Record shows that the appellant did not move any application u/s 145(2) of N.I. Act for crossexamination of the respondent, as such, the respondent's case qua loan transaction evident from the documents i.e. Settlement Agreement Ex.CW1/A, promissory note Ex.CW1/B & the cheque Ex.CW1/C has remained unchallenged.
11. The testimony of DW1 - Sh. Kanaihya is not convincing as he himself stated that he did not remember on which date he had gone to the house of the respondent along with the appellant for return of the alleged loan amount of Rs.10,000/. He also stated that he did not Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page7of11 remember even the address of the respondent where he had gone along with the appellant. He stated that he did not know the name of the bank on which the cheque was drawn or the cheque number. He also stated that no receipt of payment of Rs.12,000/ was taken by the appellant from the respondent on alleged return of the loan. He also stated that Rs.5 Lacs were not given in his presence, so, he did not remember whether the appellant had signed any promissory note of the said amount or given any undertaking to pay the said amount in favour of the respondent. Ld. Trial Court, therefore, rightly disbelieved the testimony of DW1 as the said witness was neither a witness to the loan transaction as he was not present when the loan was advanced nor he witnessed the execution of loan documents i.e. promissory note and cheque.
12. The plea of the appellant that he only handed over a blank signed cheque & blank documents as security in lieu of the alleged loan amount of Rs.10,000/ carries no weight as appellant is an educated person and therefore, it is improbable that he would give blank signed cheque and blank signed promissory note without having taken the loan amount as stated by the respondent. Both the defence witnesses submitted that no receipt was taken by the Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page8of11 appellant when he allegedly returned the alleged loan amount of Rs.10,000/ along with interest totalling to Rs.12,000/ to the respondent which is again improbable. It is also improbable that after return of the loan amount, a person who had issued blank signed cheque and blank signed promissory note would not insist on return of the same.
13. Ld. Trial Court has rightly observed that legal demand notice dated 29.10.2010 being properly addressed, prepared and posted by registered post is deemed to be served upon the appellant in view of the decision of Hon'ble Supreme Court "Alavi Hazi vs. Palapetty Muhammad & Anr. 2007 STPL (DC) 952 SC.
14. Hon'ble Apex Court in case of M/s Laxmi Dyechem v. State of Gujraj & Ors., Criminal Appeal Nos. 18701909 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 ...". Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page9of11
15. 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."
16. Appellant has been unable to caste even a shadow of doubt or create a dent in the case of the respondent. The defence put forth by him lacks credibility. Hence, for the foregoing reasons, I endorse the conviction recorded by the Ld. trial Court rejecting the story of misusing of the cheque by the respondent. The respondent has discharged burden of proof in respect of necessary ingredients on the basis of which presumptions arise under Section 118 and 139 of the Act to the effect that the cheque in question had been issued for consideration and for discharge of debt or other liability owed by the drawer in favour of the holder / payee. The defence evidence led by the accused does not inspire confidence not even when tested on the standard of preponderance of probabilities. Thus the presumptions have not been rebutted.
The impugned conviction and order on sentence sentence are, therefore, upheld. Ld. Trial Court is directed to secure the presence Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page10of11 of the appellant/ convict for undergoing the sentence imposed vide impugned order on sentence dated 14.05.2015.
TCR be sent back along with copy of the judgment forthwith.
Appeal file be consigned to Record Room.
Announced in Open Court ( Rekha Rani ) today this the 12th day of District & Sessions Judge / (West) October, 2015 Tis Hazari Courts, Delhi Crl. App. No.81/15 Yogender Singh vs. Chirag Sahni Page11of11