Delhi District Court
Additional Sessions Judge (Central): ... vs State on 4 June, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Criminal Appeal No.15/14
Jasvinder Singh
S/o Sh. Gurdev Singh,
R/o WZ32/6, Sant Nagar,
Tilak Nagar, New Delhi.
Also at :
WZ8, Gali No.18, Sant Nagar,
Tilak Nagar, New Delhi - 110018.
Also at :
Plot No.21, Vishnu Garden, New Delhi. ......Appellant
Versus
1. State
2. Rajiv Kumar Dutt,
Karta of S.N. Dutt & Sons (HUF)
Office at 29, South Patel Nagar,
New Delhi. .......Respondents
Date of institution : 17.05.2014
Date of Judgment : 04.06.2014
J U D G M E N T
Present appeal has been filed challenging judgment of conviction dt. 09.04.2014 and order on sentence dt.21.04.2014 passed in Complaint Case no. 4257/10 titled as S.N. Dutta & sons (HUF) V. Jasvinder Singh.
2. Vide impugned judgment of conviction, learned Trial Court has held the accused - appellant guilty of an offence U/s 138 of Negotiable Instrument Act (hereinafter referred to as the 'Act') and vide order on sentence dt.21.04.2014, the convict has been sentenced to undergo SI for six months and pay fine of Rs.20 lacs or in default of payment of fine, to undergo SI for one month with further direction that 1 out of the sum, Rs.17 lacs shall be paid to the complainant - respondent by way of compensation U/s 357(1) of the Act. Further, it has been observed that even if the convict undergoes sentence in default of payment of fine, the compensation amount shall still be recoverable by virtue of provisions of Sec.421(1) Cr.P.C.
3. A perusal of Trial Court Record would reveal that the complainant respondent sought prosecution of the accused - appellant for the aforesaid offence on the allegations that appellant entered into the agreement with the complainant herein in the last week of March,2005 to sell plot bearing no.CW257, Sanjay Gandhi Transport Nagar, Delhi for a total consideration of Rs.18,50,000/. By way of earnest money the complainant paid a sum of Rs.9,47,000/. Accused - appellant acknowledged receipt of the money and assured to execute necessary documents of sale after getting NOC / taking over possession of the plot from the concerned department, this process was to take about 68 months, but even thereafter the accused kept on putting off the matter on one pretext or the other, so as to seek NOC / get possession from the concerned department.
However, in the second week of May, 2006, complainant came to know that accused had sold the aforesaid plot to some other person in the month of May,2006 itself. When the complainant - respondent contacted the accused - appellant, the later agreed to repay the aforesaid amount, received by him by way of earnest money, with interest. In this way, he agreed to pay Rs.10,35,000/ to the complainant and issued seven cheques i.e. 202026, 202027, 202028, 202029, 202030, 202033 and 202035.
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Case of the complainant is that all these cheques when presented for encashment were received back as dishonored. Thereupon, he got served upon the accused - appellant legal notice dt.27.06.06 by registered post and UPC, but the appellant failed to reply or discharge liability under the cheques. It led to filing of complaint.
4. Before the Trial Court, complainant stepped into witness box as CW1 and also examined CW2 Harjinder Singh.
5. When examined U/s 263(g), Sec.313 read with 281(6) Cr.P.C., the accused - appellant pleaded to have given the aforesaid seven blank cheques to Smt. Amarjit Kaur (DW1) by way of security, and as such, denied to have issued any such cheque to the complainant in discharge of any liability.
Plea of the accused reads as under : "I have understood all the incriminating circumstances appearing in the evidence against me. I have a plot in Sanjay Gandhi Transport Nagar. The same was allotted by the DDA in the name of my father late Sh. Gurdev Singh. Thereafter, the said plot was mutated in my name and for the purpose of Mutation, I need some money, so smt. Amarjeet Kaur given to me a sum of Rs.8,00,000/ for the purpose of Mutation from her account by way of draft, at the time of given the loan by Smt. Amarjeet Kaur, I gave seven blank cheques to Smt. Amarjeet Kaur as security.
After Mutation from the DDA, I repaid the loan to Smt. Amarjeet Kaur and demanded back the above said cheque from Smt. Amarjeet Kaur but Smt. Amarjeet Kaur not returned the above said cheque with the plea that the said cheque is misplaced and the said cheque was traced and the same was returned to me.
Smt. Amarjeet Kaur is the business partner of the complainant and Smt. Amarjeet Kaur in collusion and inconnivance with each other played a 3 fraud against me and the complainant filed a false complaint by misusing the above said cheques, I never took any amount from the complainant nor issued any cheque to the complainant at any point of time."
6. In defence the accused examined DW1 Smt. Amarjit Kaur, DW2 Sh. Shailender Kumar Jain and DW3 Sh. Pritam Singh Sabbarwal.
Vide impugned judgment, learned Metropolitan Magistrate has returned finding of guilt of the accused while observing that the accused was unable to rebut the mandatory presumption of law or to establish his own story, and accordingly, sentenced him, as noticed above.
7. Arguments heard. File perused.
8. Learned counsel for appellant has submitted that Trial Court has not correctly appreciated the defence evidence led by the accused on the point of his plea that the seven cheques were actually given by him to Smt. Amarjit Kaur while availing of loan from her and that Amarjit Kaur did not return the cheques to him (accused - appellant) even when he repaid the amount borrowed from her. In support of this submission, learned counsel has referred to the defence plea put forth by the appellant and the statements of DW1 to DW3.
Learned counsel for appellant has further submitted that documents Ex.CW1/22 to Ex.CW1/26 were brought on record by the complainant subsequently. The contention is that complainant has fabricated all these documents and then changed the entire version, but learned Trial Court has 4 relied thereon in holding the accused guilty of the offence. So, it has been urged that judgment of conviction and order on sentence passed by Trial Court deserve to be set aside.
9. On the other hand, learned counsel for complainant has submitted that all the documents Ex.CW1/22 to Ex.CW1/26 were executed by the accused - appellant, after he received earnest money for sale of the plot. Further, it has been submitted that when the complainant came to know that the accused had sold away the plot to someone, he was contacted and at that time he issued the cheques, but when presented for encashment these were received back dishonored.
As noticed above, complainant examined CW1 Rajiv Kumar Dutt and tendered into evidence his affidavit Ex.P1 and documents Ex.CW1/1 to Ex.CW1/21. Subsequently, the complainant recalled Rajiv Kumar Dutt on 13.04.2012 and tendered into evidence his affidavit dt.15.11.2012 Ex.C2 and additional documents Ex.CW1/22 to Ex.CW1/26.
Rajiv Kumar testified in his affidavit that the accused had received a sum of Rs.9,47,000/ from the complainant in two installments of Rs.8,22,000/ and Rs.1,25,000/ towards earnest money for sale of aforesaid plot and out of total sale consideration of Rs.18,50,000/. He also testified regarding execution of loan agreement Ex.CW1/22 which was attested by Sh. Harjinder Singh; receipt Ex.CW1/22 which was also attested by Sh. Harjinder Singh; and affidavit 5 Ex.CW1/24. He further testified that the accused received a sum of Rs. 1,25,000/ on 20.04.05 vide receipt Ex.CW1/25 executed by the accused and attested by Sh. Harjinder Singh. He also deposed about execution of affidavit Ex.CW1/26, vide which the accused acknowledged entire payment of Rs. 9,47,000/.
Complainant also examined CW2 Sh. Harjinder Singh regarding his attestation on the aforesaid documents, executed in respect of aforesaid transaction.
10. Ex.CW1/22 is dt.01.04.05, which is loan agreement between the complainant and Sh. Jasvinder Singh, accused executed on Indian nonjudicial stamp paper purchased on 31.03.05. This loan agreement was got attested from Notary Public on 22.04.05. Ex.CW1/24 is affidavit of the accused and got attested from Notary Public on 22.04.05. Ex.CW1/26 is another affidavit of Jasvinder Singh, accused and attested by Notary Public on 22.04.05.
From the loan agreement Ex.CW1/22, it stands proved that accused - appellant being in dire financial need to discharge some liability contacted complainant and complainant agreed to lend him Rs.8,22,000/ repayable with interest @ 15% p.a. Accused - appellant also assured that he shall execute set of documents in favour of the complainant for the purpose of sale and transfer of the aforesaid plot. Demand promissory note and receipt dt. 01.04.05 were also executed in addition to this loan agreement Ex.CW1/22. 6
In para - 5 of the loan agreement, it finds mention that accused issued three cheques no.202027, 202028 & 202029 drawn on Standard Chartered Bank, Branch Punjabi Bagh.
Receipt Ex.CW1/23 supports the case of the complainant that a sum of Rs.8,22,000/ was received by accused from the complainant on 01.04.05.
Receipt Ex.CW1/25 supports the prosecution version regarding payment of Rs.1,25,000/ by the accused from the complainant. In this very document, it finds mention that accused had collected by them a total amount of Rs. 9,47,000/. In the second para of this receipt Ex.CW1/25, it has been specified that complainant was to pay the balance amount of Rs.9,30,000/ at the time of execution of sale deed / transfer documents. Affidavit Ex.CW1/24 and Ex.CW1/26 of the accused further lend corroboration to the version of the complainant.
A perusal of Trial Court Record would reveal that cheques Ex.CW1/4, Ex.CW1/5, Ex.CW1/6 and Ex.CW1/7 for Rs.25,000/, Rs.55,000/, Rs.25,000/, Rs.1,00,000/, Rs.2,25,000/, Rs.2,55,000/ and Rs.3,50,000/ dt.30.05.06, 30.05.06, 30.05.06, 25.05.06, 25.05.2006, 22.05.2006 & 19.05.2006. All these cheques were received back as dishonored with reasons 'funds insufficient'. Vide cheque return memos Ex.CW1/8 to Ex.CW1/14. Demand notice dt. 27.06.06 Ex.CW1/15 came to be issued and sent to the accused by registered post by postal receipts Ex.CW1/16, Ex.CW1/17 and Ex.CW1/18 and Under 7 Postal Certificates Ex.CW1/19 to Ex.CW1/21.
11. In the course of arguments, it has not been disputed by learned counsel for appellant that no reply to the demand notice was sent by the accused - appellant. There is no explanation as to why he did not reply the notice.
12. Accused examined before Trial Court DW1 Smt. Amarjit Kaur. According to DW1, she has friendly relations with complainant - respondent. She further stated to have issued the demand draft / pay order in the name of MCD, but she could not tell as to in whose account the amount of demand draft / pay order was to be deposited. He denied if the accused had issued any cheque in her favour. She denied that accused had given her any paper in respect of money paid by him. She further displayed ignorance about any transaction between complainant and the accused. She also denied being business partner of the complainant. By stating so, DW1 has not at all supported the defence plea of the accused.
13. DW2 Sh. Shailender Kumar Jain was called from NDMC office deposed regarding allotment of the aforesaid flat to the accused on 02.04.04. He also stated regarding deposit of sum of Rs.2,17,576/ and Rs.5,07,000/ but could not tell as to who had deposited these amounts.
There is nothing in the statement of DW2 to support the defence plea put forth by the accused - appellant that the aforesaid amount of Rs.2,17,576/ and Rs.5,07,000/ was deposited with MCD on his behalf by Smt. Amarjit Kaur 8 for the purpose of mutation.
14. DW3 Sh. Pritam Singh Sabbarwal stated that in the year 2005, loan of Rs.7,24,000/ was advanced by Smt. Amarjit Kaur. In his chief examination, he did not state that the loan was advanced to the accused but in the cross examination he stated that loan was advanced to the accused.
Further, according to DW3 at the time of grant of loan Smt. Amarjit Kaur was given seven cheques, by the accused, and same were drawn on Standard Chartered Bank. At that time, three stamp papers, two of the denomination of Rs.10/ and one of Rs.100/ with a plain paper having a revenue stamp on it and other three plain papers with signatures of the accused were also given to Smt. Amarjit Kaur.
According to the witness, DW3 stated that factum of loan was not reduced to writing. It is not believable that any person would lend such an huge amount without executing any document or that Smt. Amarjit Kaur advanced the loan to the accused but without getting executed any document from him. Had Smt. Amarjit Kaur advanced any such loan in presence of DW3, as stated by him, he would have attested the documents. DW3 admitted in his cross examination that he had not signed any document at the time of grant of loan. When no document was executed, it remains unexplained as to why blank papers bearing signatures of the accused were given by the accused to Smt. Amarjit Kaur. So, it is not believable that the accused had 9 given any such blank stamp paper bearing his signatures to Smt. Amarjit Kaur.
As regards repayment of loan, although DW3 has stated that it was repaid in December,2005, there is no document on record to suggest any such repayment.
15. Had any such amount been repaid, the accused must have asked Smt. Amarjit Kaur to issue receipt in this regard. There is no explanation as to why the accused did not ask Smt. Amarjit Kaur for return of the aforesaid blank stamp papers or these seven cheques. Had Smt. Amarjit received any cheque from the accused at the time of advancement of loan, on their nonreturn, the accused must have initiated proceedings against Smt. Amarjit Kaur on account of non return of the cheques. There is nothing on record to suggest that at any point of time, the accused issued any notice to Smt. Amarjit Kaur on account of nonreturn of aforesaid blank stamp papers or the seven cheques or that he ever reported the matter to the banker that it should not encash any of such cheque or that he instituted any suit for cancellation of documents.
Had Smt. Amarjit Kaur passed on all these seven cheques to the complainant, the accused must have reported the matter to the police and got initiated action against the complainant as well as Smt. Amarjit Kaur alleging conspiracy but there is nothing on record to suggest that any such step was taken by the accused.
16. In view of the above discussion, this court finds that learned Trial Magistrate has rightly disbelieved defence plea put forth by the accused. As a 10 result, this court does not find any merit in the contention of learned counsel for accused - appellant that the cheques in question were given by the accused - appellant to Smt. Amarjit Kaur or that even after repayment of the loan amount by the accused to her, she passed on the cheques to the complainant.
17. As a result of the above discussion, this court finds that learned Trial Magistrate has rightly held the accused guilty of the offence U/s 138 Negotiable Instruments Act and convicted him thereunder.
18. On the point of sentence, no argument has been advanced by learned counsel for appellant. As noticed above, a sum of Rs.10,35,000/ was due from the accused - appellant to the complainant under the cheques . He failed to discharge the liability in the year 2006 which led to issuance of demand notice and ultimately to the filing of the complaint and perusal of the accused. But having regard to all these facts and circumstances, this court finds that complainant shall be held entitled to compensation of the entire amount of Rs. 20 lacs instead of only Rs.17 lacs. I order accordingly.
As a result, subject to modification in the manner indicated above, th is appeal is hereby dismissed.
Trial Court Record be returned. Appeal file be consigned to Record Room.
Announced in Open Court
on 04.06.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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