Delhi District Court
Vijay Kumar vs Narinder Singh Arora on 12 December, 2023
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IN THE COURT OF MS. SHAIL JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, DELHI
Crl. (A).61/2023
Vijay Kumar
S/o Late Mastan Chand
R/o H. No. 71-A, Baldev Park,
Delhi-110051. ......Appellant
VERSUS
Narender Singh Arora
S/o Sardar Swaran Singh
R/o H. No. 185, South Anarkali,
Delhi-110051. .....Respondent
Date of Institution : 20.04.2023
Arguments heard on : 01.11.2023
Date of Judgment : 12.12.2023
JUDGMENT
1. Appellant has filed the present appeal against impugned judgment dated 15.03.2023 vide which accused / appellant herein was convicted for offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act') and order on sentence dated 17.03.2023 whereby the appellant was sentenced to imprisonment for two months and was also directed Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 1 of 16 :: 2 ::
to pay compensation of Rs.2,60,000/- to the complainant within 30 days and in default thereof, he was to undergo imprisonment for six months.
2. Facts leading to filing of present appeal are that complainant Narender Singh Chauhan advanced a friendly loan of Rs.1,30,000/- to the accused on 02.04.2011, for his personal needs. The accused agreed to repay the entire amount within 06 months and also executed a promissory note and gave a copy of his Voter-ID. Accused, for the purpose of repayment of the above-said loan issued a cheque bearing no. 017362 (cheque in question) dated 02.10.2011, for the amount of Rs. 1,30,000/- drawn upon The Janata Co-operative Bank Limited, which on presentation got dishonoured vide cheque return memo dated 08.10.2011 with the remarks "Funds Insufficient". Legal notice dated 29.10.2011 was issued to the accused and despite receipt thereof, accused did not make the payment, hence, complaint under Section 138 NI Act was instituted.
3. Ld. MM has taken the cognizance of offence punishable under Section 138 NI Act against the accused/appellant herein on 22.11.2011 and issued summons to him. However, he failed to appear before the Court despite issuance of B/Ws followed by NBWs and process under Section 82 Cr.P.C and he was declared a proclaimed offender (PO) vide order dated 29.11.2013. The file was revived after the arrest of accused on 18.09.2021. Notice under Section 138 of NI Act was framed against the accused on 22.11.2021, to which he pleaded not guilty and claimed trial. In his statement of defence, the accused has stated that he had Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 2 of 16 :: 3 ::
signed the cheque in question, however, other particulars upon the cheque were not filled by him. He stated that he had taken a sum of Rs. 20,000/- from the complainant and the cheque in question was given as a security cheque in respect of the said loan of Rs. 20,000/-, however, he had repaid the same along with interest amount of Rs. 4000/-. He further stated that the complainant did not return his cheque on the pretext of it being misplaced. He also denied the signatures upon promissory note Ex. CW1/A and stated that the document is a forged and fabricated document. He denied the receipt of legal notice.
4. After considering the evidence on record and arguments advanced on behalf of the parties, Ld. Trial Court convicted the appellant for offence under Section 138 of N.I. Act vide judgment dated 15.03.2023 and sentenced him vide impugned order on sentence dated 17.03.2023. Being aggrieved with the same, he has filed the present appeal.
5. On being served with notice of appeal, complainant/ respondent herein appeared and filed reply reiterating therein his case as set up in the complaint and stated that there is no merit in the present appeal and same is liable to be dismissed.
6. Ld. Counsel for the appellant has submitted that Ld. Trial Court did not have jurisdiction to try the complaint of respondent herein and only the Court in Shahdara District had jurisdiction to try the same. It is further argued that no amount of Rs.1,30,000/-
was taken by the appellant as loan, nor did he execute any promissory note in favour of complainant. He had given cheque as 'security'. It is further argued that respondent had not shown Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 3 of 16 :: 4 ::
that he had capacity to advance loan of Rs.1,30,000/- to the appellant. He has prayed that present appeal may be allowed by setting aside the impugned judgment of conviction and order on sentence. Ld. Counsel for appellant has relied upon following judgment :
(i) Apparel Export Promotion Council vs. Collage Culture & Ors., CRL. L.P. 223/2016 passed by Hon'ble Mr. Justice Vibhu Bhakru, Delhi High Court on 06.01.2020.
(ii) Bijoy Shankar Mishra vs. State of Jharkhand, Cr.M.P. No.1266 of 2020 passed by Hon'ble Jharkhand High Court on 07.12.2021.
7. On the other hand, Ld. Counsel for the respondent has submitted that after becoming P.O. in 2013, appellant was caught again in 2021 but he never raised the issue of jurisdiction before Ld. Trial Court, hence, he can not be permitted to raise jurisdictional issue before this Court. There is no illegality or impropriety in impugned judgment of conviction and order on sentence. He has prayed that present appeal be dismissed.
8. I have considered the submissions made by Ld. Counsels for the parties. I have carefully perused the judgments relied upon by Ld. Counsel for appellant and the orders passed by the Ld. Trial Court. After considering the same, I am of the opinion that Ld. Trial Court had discussed, in detail, all the facts and legal prepositions relevant for disposal of complaint under Section 138 N.I. Act.
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9. I will discuss all the grounds taken by the appellant individually.
10. Appellant has stated that Ld. M.M. was not having any jurisdiction to try the case, as the jurisdiction was of the District Court, Shahdara and not of District Court, East because address of Bank of the complainant is of Chander Nagar (Union Bank of India, Chander Nagar Branch), which falls within jurisdiction of Shahdara District. This point was also raised before Ld. Trial Court, but Ld. Trial Court had not discussed it in detail, and had stated that no evidence has been led by the appellant/accused on this aspect. Hence, this objection has been discarded by Ld. Trial Court.
11. On this point, the appellant has relied upon judgment Bijoy Shankar Mishra vs. The State of Jharkhand (Supra) and in this judgment, it is stated that as per Section 142 of NI Act, the Branch of Bank where 'Payee' or the 'holder in due course' maintains the account, shall be the place for jurisdiction of the Court. On the basis of this, it has also been alleged by the appellant that since the complainant was having the account in Branch of Bank at Chander Nagar, which falls within the jurisdiction of Shahdara, the Court at District East shall not have jurisdiction to try the complaint and the complaint has been decided by the Ld. Trial Court, without having any jurisdiction.
12. On this point, I have considered and perused the complaint, as filed. The complaint in present case was filed on 22.11.2011. On 29.11.2013, accused/appellant herein was declared 'Proclaimed offender' and the file was consigned to Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 5 of 16 :: 6 ::
Record Room. On the other hand, amendment in N.I. Act has come into force on 15.06.2015, which is reproduced as under :
"26. The Negotiable Instrument (Amendment) Ordinance, 2015 was notified on 15th June, 2015 and came into effect immediately. Sections 3 and 4 of the said Ordinance, are set out below:-
3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub- section (1) as so numbered, the following sub-section shall be inserted, namely:-
(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction. -
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.--For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.
4. In the principal Act, after section 142, the following section shall be inserted, namely:-
142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 6 of 16 :: 7 ::
out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub- section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.
(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different course, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
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13 . By this amendment in the year 2015, it was held that in complaint under Section 138 NI Act, if pending, in a jurisdiction, which is not the competent jurisdiction, then complaint is to be transferred to the Court of competent jurisdiction as per amended provision under Section 142 NI Act, which is reproduced as under :
"4. In the principal Act, after section 142, the following section shall be inserted, namely:-
"142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-
section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.
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(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different course, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
14. From perusal of Section 142 NI Act, it is clear that any complaint, which was pending at the time when Amendment Act, 2015 came into force, the complaint was to be transferred as per provision laid down in section 142 (2) NI Act. But in the present case, as is clear from perusal of record that the complaint was filed on 22.11.2011 and was sent to Record Room on 29.11.2013, as accused was declared Proclaimed Offender. Therefore, at the relevant time, when the Amendment Ordinance came into force i.e. on 15.06.2015, the complaint was not pending for hearing in any Court and therefore, the same could not be transferred to any competent Court. My view gets support from the order passed by Mr. Justice Vibhu Bhakru, Delhi High Court in case titled as Apparel Export Promotion Council vs. Collage Culture & Ors. (Supra), which has also been relied by the appellant, wherein it has been held that :
"28. It is also relevant to note that in terms of Section 142 (A) of the NI Act, as amended by the Negotiable Instrument (Amendment) Act, 2015 - which was enacted Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 9 of 16 :: 10 ::
with retrospective effect from 15.06.2015 - all cases transferred under the Negotiable Instruments (Amendment) Ordinance, 2015 were deemed to have been transferred under the NI Act. There is no dispute that if the appellant's complaint was pending before the learned M.M. (Patiala House Courts) or had been re-filed before the Learned MM, South East, Saket Courts the appellant could have the benefit of Section 142 (A) (1) of the NI Act as inserted by the Negotiable Instruments (Amendment) Ordinance 2015. However, the said ordinance is of little assistance to the appellant since the said case was neither pending before the learned M.M. Patiala House Court nor before the court of learned MM, South East Distt. as on 15th June, 2015, that is, the date on which the said ordinance came into force. The appellant's complaint (CC 204/2004) stood returned to the appellant by virtue of the order dated 25th August, 2018 passed by the learned M.M."
15. Hon'ble Mr. Justice Vibhu Bhakru has held that it cannot be accepted, that the complaint was pending, when the complaint has already been returned to the appellant, as it would amount to adjudicating the complaint of appellant as a pending case even though the same has not been refiled by the appellant.
16. Applying those principles to the present facts, in the year 2015, at the relevant time, the present complaint was consigned to Record Room and the same was not pending for hearing before the Ld. MM. It came to be revived only on 18.09.2021. At that time, when the complaint was revived, no application of transfer of the case was moved by the accused/appellant nor such Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 10 of 16 :: 11 ::
an objection was taken by the accused/appellant about jurisdiction of the Ld. MM, hence, I am of the opinion that the objection of the jurisdiction raised at this stage, is not available to the accused/ appellant and Ld. Trial Court was competent to decide the present complaint. Further, appellant has failed to show any prejudice caused to him, by trial of his case before Ld. Trial Court. Hence, this objection can not be accepted as good ground for setting-aside the impugned order.
17. The second ground taken by the appellant is that no amount of Rs.1,30,000/- was taken by him as loan from the complainant. The third ground taken by the appellant is that he had not issued the cheque for discharge of any liability and the cheque was given as security towards amount of Rs.20,000/-. He has further stated that promissory note Ex.CW1/A does not bear his signatures.
18. As these grounds are inter related hence, are taken together. After considering the submissions of appellant and the complainant on this point, I am of the opinion that this ground is not the relevant ground for challenging the order of conviction under Section 138 N.I. Act. Admittedly, the complaint has been filed after dishonour of cheque for the amount of Rs.1,30,000/-, bearing no. 017362 dated 02.10.2011, drawn on The Janata Co- operative Bank Limited, Gazipur, Delhi-110096 given by appellant to the complainant. Even otherwise, perusal of the complaint, as filed by the complainant against the accused/appellant clearly shows that he has mentioned in para no. 1 that he had advanced friendly loan of Rs.1,30,000/- to the Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 11 of 16 :: 12 ::
accused on 02.04.2011. The question, whether the loan was advanced by the complainant to the accused/appellant or not has also been discussed by the Ld. Trial Court. Ld. Trial Court has rightly observed that once, the cheque has been issued by the appellant in favour of the complainant, presumption under Section 139 N.I. Act is raised in favour of the complainant that the cheque has been issued by the appellant in order to discharge the whole or part of debt or any other liability.
19. It is settled preposition of law, by virtue of Section 139 N.I. Act, that if a cheque has been issued by the drawer, it is presumed to have been issued in discharge of any debt or liability which the drawer has against the drawee, unless this presumption is rebutted by accused.
20. While considering this defence, taken by the accused before the Ld. Trial Court, Ld. Trial Court observed that accused has taken the defence that the cheque was given as security cheque in respect of the loan of Rs. 20,000/-, however, the said contention by itself, will not absolve the accused of his liability and Ld. Trial Court has rightly relied upon judgment passed by Hon'ble Delhi High Court in Suresh Chandra Goyal v. Amit Singhal (CRL.L.P. 706/2014, dated 14.05.2015) and in Credential Leasing & Credits Ltd. Vs. Shruti Investments 223 (2015) DLT 343 that a post-dated cheque issued for security purpose is a recognized mode of payment and covered within the ambit of Section 138 of the NI Act. Ld. Trial Court has rightly relied upon judgment passed by Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar (Crl. Appeal No. 230-231/189, dated Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 12 of 16 :: 13 ::
06.02.2019), wherein it has been held that, 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, by itself, does 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. The Court further went on to hold that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Therefore, in the absence of any cogent evidence on the part of accused to disprove the liability, the above defence also is not attracted in the given case.
21. In the present case, both before the Ld. Trial Court as well as before this Court, appellant has challenged that the cheque was not given by him in discharge of his liability but no concrete evidence or argument has been advanced on this point. It is clear from the Trial Court record that accused/appellant has admitted his signature on the cheque. Also, during the cross-examination of complainant, the suggestion was given to him that cheque was given to the complainant as a security which he had not returned to the accused by stating that cheque got misplaced and the said suggestion was specifically denied by the complainant. Even suggestion was given that document Ex.CW1/A (promissory note/pronote) is a fake and fabricated document and it does not bear signature of the accused. However, no expert was examined Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 13 of 16 :: 14 ::
by the accused to prove that Ex.CW1/A (promissory note/pronote) is a fake and fabricated document. Bare denial of signature and taking a plea that document is forged will not absolve the appellant of his liability.
22. The other ground of appeal taken by the appellant is that the complainant has failed to prove his financial capacity to advance loan of Rs.1,30,000/-. This ground has been specifically dealt with by Ld. Trial Court. During cross-examination of the complainant, it was not put to him by the accused/appellant as to how he had arranged an amount of Rs.1,30,000/- nor such evidence has been led by the accused in his defence to disprove the case of complainant/respondent herein that he had no financial capacity to lend him an amount of Rs.1,30,000/-.
23. It is also a ground taken by the appellant that since the amount of loan was not reflected in ITR of the respondent herein, it is clear that complainant/respondent has had no such huge amount. Ld. Trial Court has right observed that, in catena of judgments including, the decision of the Hon'ble Delhi High Court in Dilip Chawla v. Ravinder Kumar, [2017(3) DCR 358], it has been held that a complaint under Section 138, NI Act is maintainable, even in the case of cash transactions of more than Rs. 20,000/-. The provision of IT Act does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as invalid or null and void and the objective is to curb and unearth black money. Furthermore, it has been held by the Hon'ble High Court of Delhi in Lekh Raj Sharma versus Yash Pal Gupta (Crl.L.P. 567/2014, dated 30.06.2015) that a complaint under section 138 Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 14 of 16 :: 15 ::
NI Act is maintainable even where the transaction is not shown in ITR.
24. Considering the same, I am of the opinion that Ld. Trial Court has rightly placed reliance on the aforesaid judgments and held that not mentioning of amount of loan in the ITR does not render transaction of loan invalid in cases under Section 138 N.I. Act.
25. These are the important grounds, which have been taken by the appellant for challenging the order of Ld. Trial Court. Apart from these, some other grounds have been taken, which have already been dealt, in detail, by Ld. Trial Court. The appellant has only taken these grounds for challenging the impugned judgment, but as is stated above, he has not mentioned how the Ld. Trial Court has not been able to appreciate the evidence in respect to these allegations. In the absence of there being any specific allegations/grounds of appeal taken by appellant to show any infirmity or irregularity in the order of Ld. Trial Court, I am of the opinion that the grounds of appeal, as taken by appellant, are not favouring the accused/appellant and he has not been able to point out any infirmity in the judgment of Ld. Trial Court.
26. In view of my above discussion, I am of the opinion that appellant has not been able to raise any ground or allegation in the present appeal, which could create any dent in the judgment passed by Ld. Trial Court or bring on record any infirmity, which order of Ld. Trial Court is suffering from. In the absence of the same, the appeal has no merits. Same is hereby dismissed.
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27. A copy of this judgment along with Trial Court Record be sent back to the learned Trial Court.
File be consigned to record room.
SHAIL Digitally signed
by SHAIL JAIN
Date: 2023.12.12
Announced in the open court
JAIN 16:37:49 +0530
(SHAIL JAIN)
today on 12 th December, 2023 Principal District & Sessions Judge East, Karkardooma Courts, Delhi Crl. (A) 61/2023 Vijay Kumar vs. Narender Singh Arora Page 16 of 16