Delhi District Court
Smt. Swaraj Gupta vs Mr. Vijay Kumar Arora on 25 October, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
Criminal Appeal No. 120 / 2020
CNR No. DLWT01-003894-2020
In re:
Smt. Swaraj Gupta
W/o Sh. Vijender Kumar Gupta,
R/o 28-B, Sector-7,
Pocket-III, Dwarka,
New Delhi-110075 ...... Appellant
Versus
Mr. Vijay Kumar Arora
S/o Sh. Raghunath Dass
R/o 17-A, Single Storey,
Ramesh Nagar,
New Delhi - 110017 ..... Respondent
Date of filing appeal : 16.09.2020
Date of hearing arguments : 01.10.2020
Date of Judgment : 25.10.2021
Appearances:
Sh. Deepak Singh Thakur, Advocate for the appellant/convict.
Sh. Pratap Sahani, Advocate for the respondent/complainant.
JUDGMENT
1. This judgment shall decide a Criminal Appeal filed in terms of Section 372 of the Code of Criminal Procedure, 1973 by the Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 1 of 19 appellant/convict assailing Judgment dated 10.08.2020 whereby she was convicted for the offence under Section 138 of the Negotiable Instrument Act 1881, as amended up to date (hereinafter referred to as the 'NI Act') followed by order on sentence dated 17.08.2020 passed by the Court of Ms. Neha Pandey, Ld. MM (NI Act)-03, (West), Tis Hazari Courts, Delhi in complaint case bearing CC No. 3245/2016 titled as 'Vijay Kumar Arora v. Smt Swaraj Gupta'.
BRIEF FACTS:
2. Briefly stated, a complaint under Section 138 of the NI Act was instituted on 03.09.2010 by the complainant, who is the respondent in the present criminal appeal, alleging that a personal loan of Rs. 5 lacs was extended to the appellant on 09.11.2009 and the same was to be repaid within six months thereof, and in consideration, the appellant issued a cheque bearing No. 149389 amounting to Rs. 5 lacs Ex.CW-1, which date was modified by the appellant by writing ¼ (to mean 01.04.2010) and the appellant in acknowledgment of receiving the loan also signed a receipt dated 09.11.2009 Ex.C-2.
3. The grievance of the complainant was that the said cheque was deposited for encashment by him with his banker viz. State Bank of India, Mansarover Garden Branch, New Delhi but the same was returned dishonoured with the remarks for their being "insufficient funds" in the account of the appellant / drawer. It was alleged that the said cheque was presented second time on the request of the Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 2 of 19 appellant/ drawer but the same was again returned dishonoured vide bank memo dated 29.07.2010 EX.CW-3/A on the ground that payment had been stopped by the drawer. The respondent alleged that he served a demand notice dated 06.08.2010 Ex.CW-4 upon the appellant but the same was not complied with and, therefore, the complaint was filed.
4. On taking cognizance of the offence, after recording pre- summoning evidence of the complainant, notice of accusation under Section 251 Cr.P.C. was given on 17.02.2011 and a detailed reply was given by the appellant, which reads as under:-
"I plead not guilty and claim trial. I had purchased DDA MIG SFS Flat no. 28-A, Sector-7, Dwarka, New Delhi from Ms. Shakti Chawla and her husband for Rs. 15,10,000/- I paid earnest money of Rs. 5,00,000/- to them by cheque no. 212363 from account of my daughter Ms. Srishti maintained in Indian Bank, Dwarka.
In October 2009, I tried to arrange the remaining amount from my known person Sh. Vijay Kumar s/o Sh.Nanak Chand who promised to arrange only Rs. 5 Lacs by November 2009, on insistence of said Sh. Vijay Kumar, I prepared the cheque no. 149389 of United Bank of India, Karol Bagh, New Delhi in his name and had put date "1/4" on it. I also did not write the amount in the said cheque.
Similarly, I had also prepared a printed blank receipt of Rs. 5,00,000/-, It was signed by me and my husband. It was not having any date, name of Sh. Vijay Kumar and revenue stamp on it. The cheque and the receipt were to be completed and handed over to Sh. Vijay Kumar on receipt of loan of Rs. 5,00,000/-. The said cheque, printed blank receipt, hand written receipt other signed and unsigned blank cheques, documents of my property at Goayal Dairy, keys and my and my husband's Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 3 of 19 photographs were kept in folder. Meanwhile, I arranged the consideration amount by taking loan from bank. As such, the aforesaid cheque no. 149389 and printed blank receipt were not used and they remained in folder. The said Smt. Shakti Chawla and her husband came to my residence on 12.11.09 in evening to discuss the modalities of execution of sale deed. It was decided that on payment of complete consideration amount Smt. Shakti Chawla will refund Rs. 5,00,000/- earlier paid to her as earnest money. The sale deed was executed on 13.11.2010 but Smt Shakti Chawla and her husband did not refund Rs.5,00,000/-. They represented that they have deposited this amount in the account of my daughter Ms.Srishti and they also gave photocopy of the deposited cheque. But later on I came to know from the bank that no such cheque of Rs. 5,00,000/- was deposited in account of my daughter. As such, I claimed Rs.5 Lacs from Smt. Shakti Chawla and her husband. Meanwhile, I also count not find the folder containing, above cheque no. 149389 receipt and other articles.
As such, I reported the misplacement of folder and articles to police on 18.11.09. Later on I came to know from property dealers that the said Smt. Shakti Chawla and her husband have stolen the folder on their visit on 12.11.09 and are negotiating to sell my property on the basis of documents kept in the folder.
I lodged report against Smt. Shakti Chawla and her husband in police 08.12.09 and 11.03.2010. I also got stopped the payment of above cheques and other cheques kept in folder on 06.03.2010.
I also gave legal notice to Smt. Shakti Chawla and her husband on 12.07.2010. On 16.07.2010, while I was getting my passing my pass book updated, I came to know that the aforesaid cheque no. 149389 has been presented to my bankers. On enquiries I came to know from bank that the complaint has presented the cheque. I gave notice to bank on 17.07.2010. In fact, the said Smt. Shakti Chawla and her husband have malafidely given the stolen cheque no. 149389 and printed blank receipt to the complainant who is known to them. They have made forgery, fabrication and manipulation in cheque and receipt. They have made interpolation in Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 4 of 19 date of "1/4".
They have also put amount and new dates upon the cheque to validate it and have forged signatures on corrections. They are also written name of Sh. Vijay Kumar on printed blank receipt. They have also put the date of "9th " and "9/11". They have also put revenue stamp on receipt and have forged my signature on the revenue stamp. I do not know the complainant and never took any loan from him. The present false complaint has been filed by the complainant in collusion and conspiracy with Smt. Shakti Chawla and her husband so as to extract money from me and to put pressure upon me so that I may not claim back my Rs. 5 lacs and the articles of folder. I made police report again aforesaid person on 18.07.2010 and also gave them legal notice dated 26.07.2010. The complainant did not give any reply to the notice, this also show that the complainant is false and frivolous.
I have also filed criminal complaint case against the aforesaid persons on 20.10.2010. The present complaint case is false."
5. During the course of trial, an application under Section 145 (2) of the NI Act moved by the appellant to cross-examine the complaint was allowed vide order dated 03.08.2011. The complainant examined himself as CW-1; Sh. Anitl Kumar Dutta, the Head Cashier, United Bank of India as CW-2; Sh. Bahadur Prasad, Assistant Manager, SBI, Mansarover Garden as CW-3; besides Ms. Poonam Saini, Handwriting Expert as CW-4 and the complainant's evidence was closed on 11.07.2013. The statement of appellant under Section 313 Cr.P.C. was recorded on 16.09.2013 and suffice to state that the appellant denied that any loan was taken from the complainant and submitted that though she signed the cheque at point 'G', date on the cheque with her Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 5 of 19 signatures and the modified date were forged as also the receipt/ promissory note. The appellant inter alia denied that the notice of demand dated 06.08.2010 was ever served upon her. In her defence, the appellant examined herself as DW-1, one Sh. Manish, Ahlmad in the Court of Sh. Lal Singh, Ld. ADJ (West) as DW-2 besides examining Sh. Deepak Jain, Handwriting and Finger Print Proficient as DW-3 as also one Vijay Kumar as DW-4 and the defence evidence was closed on 04.04.2009.
6. It is pertinent to mention here that since it was the version of the complainant that the appellant/accused was introduced to him by one Shri Ved Prakash Chawla and the receipt Ex.CW-2 was executed at the house of one Jagdish Chand S/o Late Lal Chand, who also happened to be attesting witness, both were ordered to be summoned as Court witnesses and accordingly examined as CW-1 and CW-2 respectively by the Court.
IMPUGNED JUDGMENT:
7. Briefly stated, the learned MM vide impugned Judgment dated 10.08.2020 held that the appellant had not denied her signatures on the cheque as also on the receipt Ex.CW-1/1 and CW-1/2 respectively besides the fact that on the back of the impugned cheque, she had admitted making endorsement that "the cheque was issued towards repayment of the loan". Learned MM did not find any substance in the defence version of the appellant that impugned Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 6 of 19 cheque had been misplaced and / or manipulated or fabricated by the Shri Ved Prakash Chawla and his or for that matter the payee complainant. It was further found that the notice of demand dated 06.08.2010 Ex.CW-4 was duly served upon the appellant as evidenced by the registered postal receipt Ex.CW-5 and UPC Ex.C-6 and the same was also pasted on the front main door of her house shown in photograph of the house of the appellant which is Ex.CW-7.
8. Further, Learned MM found no substance in the plea that the complainant had failed to plead as to how he knew the appellant and the learned MM discarding the testimony of the Handwriting Experts from both sides viz. PW-4 and DW-3 found that the appellant failed to rebut the presumption that the impugned cheque was not issued in discharge of legally recoverable debt. This was followed by the impugned order on sentence dated 17.08.2020 whereby the appellant was sentenced to undergo Simple Imprisonment for a period of one year and further directed to pay fine of Rs.10 lacs towards compensation to the complainant within a month of the said order.
GROUNDS OF APPEAL:
9. The impugned judgment followed by order on sentence are assailed in the present Criminal Appeal inter alia on the grounds that the learned Trial failed to appreciate that the name of the complainant was 'Vijay Kumar Arora' and he had been maintaining bank account in such name but the impugned cheque was issued only in the name of Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 7 of 19 'Vijay Kumar'; and that the cuttings and over writings of the date on the disputed cheque were ignored; and that the ld Trial Court failed to appreciate that no one would given a personal loan of Rs. 5 lacs in cash to an unknown person without interest particularly when the complainant was an income tax payee and no such transaction was reflected by the complainant in his income tax returns; and that the complainant also failed to disclose his source of income in issuing cheque for such a big amount; and that the Ld. Trial Court failed to appreciate that the appellant was not in need of any loan as her loan for purchase of residential flat had been sanctioned by the Reliance Capital.
10. The impugned judgment is further assailed on the ground that the learned Trial Court failed to appreciate that the cheque in question was presented to the bank on 28.12.2009 and then it was presented in the last week of July-2010 and thereby, raising an inference that the validity of the cheque had expired since time of presentation of the last cheque; and that the learned Trial Court failed to appreciate the fraud and misrepresentation on the part of the complainant in making several interpolation and manipulation in the impugned cheque; and that the learned Trial Court did not assign any reason as to why the testimony of DW-3 handwriting expert, namely Sh. Deepak Jain was discarded.
Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 8 of 19DECISION IN THE INSTANT APPEAL:
11. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties at Bar. I have perused the appeal file as also the record of the Ld. Trial Court including the oral and documentary evidence on record. I have also gone through the written submissions filed by the parties.
12. In order to decided the instant appeal, it would be expedient to refresh our understanding about the relevant provisions in the NI Act. Section 138 of the NI Act provides as under:-
"138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 9 of 19 the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]"
13. A bare perusal of Section 138 of the NI Act would show that three fundamental requirements for applicability of such Section are: (1) that there should be legally recoverable enforceable debt and (2) that the drawer issued cheque to satisfy part or whole of the debt and (3) that thirdly that the cheque issued had been returned due to insufficiency of funds in the account drawer. It is also settled proposition of law that in the criminal jurisprudence innocence of the accused is the mainstay unless proven guilty. Although, initial burden to prove guilt of the accused is upon the complainant prosecution, however, Section 138 of the Act carves out an exception and presumption of guilt of the accused drawer is found, which is rebuttable presumption, meaning thereby that the accused drawer has to show that the aforesaid fundamental conditions were not satisfied. Before we go any further it would also be expedient to refer to the provisions of Section 118 (a) of the NI Act and Section 139 of the Act that provide as under:-
"Section 118(a) in The Negotiable Instruments Act, 1881
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
Section 139 in The Negotiable Instruments Act, 1881
139. Presumption in favour of holder.--It shall be presumed, Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 10 of 19 unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
14. It is also well settled proposition of law that accused is not mandated to prove his defence beyond reasonable doubt but by way of balance of probabilities. On meticulous evaluation of the oral and documentary evidence brought on record, first thing which is clearly discernible is that some transaction had taken place on 09.11.2009 and it is admitted case of the appellant that cheque in question Ex.CW-1/1 was issued by her putting her signatures at point 'G' and the date of cheque was altered by her putting it '1/4' i.e. so as to mean '01/04/2010', which is at point 'B' on the cheque. She also testified that she had written the name of 'Vijay Kumar' on the cheque at point 'I' but she also stated that date on the cheque was interpolated at point 'D' as she had written '1/4', which was interpolated or modified to be '9/9'. But then she acknowledged that she had written '5,00,000/-' at point 'K' (which is the rectangular box in the printed cheque) but she denied signing at point 'E' and 'F' where the dates appear to have modified. She also denied writing numeral'11' at point 'B' and not signing the encircled portion at point 'A' and 'C'.
15. Further, DW-1 appellant conceded that she had made a writing on the back side of the cheque at point 'H' which reads "To repay the amount of loan" and signed the same. Since much mileage was sought to be drawn by the learned Counsel for the appellant that there were apparent cuttings and other aspects of the Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 11 of 19 cheque, it would be proper to meticulously examine its image in the present judgment, which is as under:-
J I A B
K
G
16. The story goes to the effect that DW-1 in her further examination acknowledged that in the receipt Ex.CW-2 she had written 'Five lacs only' by words at point 'G' and she signed at point 'D' and she further stated that her husband had signed at point 'I' but then she did a somersault and testified that she had not written 'Vijay Kumar' at point 'A' claiming that it was in different ink impression and handwriting and she had not written numeral '9' at point B. She further denied affixing the revenue stamp and also denied putting her signatures across besides date at point 'E' and 'C'; and then she testified that the receipt Ex.CW-1 was not signed by Jagdish Chand at point 'F' nor it Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 12 of 19 had signatures of Vijay Kumar at point 'J'. The image of the receipt Ex.CW-2 is as under:-
A G
B
D
E
C
I
F
J
17. Before I advert to our decision with regard to cheque Ex.CW-1/1 and receipt Ex.CW-2, we have to satisfy ourselves with the Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 13 of 19 fundamental requirements for the maintainability of a complaint under Section 138 of the Act viz. sub clauses (a) (b) & (c). Now, it is categorical case of the complainant that the appellant was introduced to him by Ved Prakash Chawla, which fact has not been denied or controverted by the appellant-drawer and that the receipt was executed at the house of CW-2 Jagdish Prasad Bablani has however been controverted. The case of the complainant is that the impugned cheque was presented for encashment first time but it was dishonored which is not denied by the appellant although she claims that she came to know of it when her Bank claimed misc. charges on such dishonour. Anyways, it is the case of the complainant thereafter on the request of the appellant drawer, it was presented again but returned dishonored vide bank memo dated 24.07.2010 Ex.CW-3/A for the payment having been "stopped by the drawer".
18. It appears that the demand notice dated 06.08.2010 Ex.CW-4 was sent by postal receipt Ex.CW-5 dated 06.08.2018 as also UPC receipt which is Ex.PW-6/C and it was also affixed on the main front iron gate with Jaali at the house of the appellant, the image / photograph of which is Ex.CW-1/7. It appears that registered AD envelope Ex.CW-1/8 was returned with the endorsement of the Postman dated 07.08.2010, 09.08.2010, 10.08.2010, 11.08.2010, 12.08.2010 and 13.08.2010 finally with the remarks on 14.08.2010 that "despite repeated visits the premises was found locked". DW-1 conceded in her cross-examination that the address on the postal Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 14 of 19 receipt as well as registered AD viz."28B SFS MIG DDA Flats,Sector-7, Pocket-2, Dwarka" was correct address but then as regards affixation of notice vide Ex.CW-7, (which incidentally shows the name plate of her husband Vijay Kumar Gupta at the outer wall alongside the iron gate with the same address), she audaciously lied that it was some different door which appears to be palpably wrong. Therefore, her defence that the notice of demand was never served upon her cannot be believed particularly when judicial record speaks volume of the fact that she appears to be a master of avoiding notices so much so that even after filing of the complaint when notices were sent to her by registered AD for 16.10.2010 and 20.12.2010, there were similar endorsements by the Postman that despite several visits, the addressee / appellant was not found available and the registered parcel was not collected despite intimation. Be that as it may, the learned trial Court rightly relied on decision in the case of C.C. Alavi Haji v. Palapetty Muhammaed & Anr., 2007 (6) SCC 555, wherein it was held:
"entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138... any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he made payment within 15 days of receipt of summons and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the Court along-with the copy of the complaint under Section 138 of the Act cannot obviously contend that there was no proper service of notice as required under Section 138 NI Act Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 15 of 19 by ignoring the statutory presumption to the contrary under Section 27 of General Clause Act and Section 114 of the Evidence Act..."
19. Having satisfied the fundamental aspect provided under Section 138 of the NI Act, the complaint was filed within the prescribed period of limitation on 03.09.2010.This brings us to the evaluation of the cheque as also receipt. There is no substance in the plea by the learned Counsel for the appellant that no pleadings were made in the complaint as to how the complainant knew the accused i.e. the appellant. To cut the long story short, it is in evidence that the complainant was introduced to the appellant by CW-1 Ved Prakash Chawla, who stood his ground while examined as CW-1 that sometimes in October-November, 2009 the appellant was engaged in negotiations with Ved Prakash Chawla and his wife Smt. Shakti Chawla for purchase of their residential flat at Dwarka and it was at the behest of CW-1 Ved Prakash Chawla that financial assistance was agreed to be provided to the appellant without interest, which fact cannot be said to be unpalatable. There is also no substance in the plea by the learned Counsel for the appellant that amount of loan was not shown in the Income Tax Returns, which is altogether a separate issue in the background of our experience about chronic concealment of income and earnings by the people of India for avoiding tax penalties and therefore, not much significance could be accorded to non-disclosure of such amount in the income tax returns by the complainant.
20. The defence version that the loan was rather sought from DW-4 Vijay Kumar and not Vijay Kumar Arora is a cock and bull story in Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 16 of 19 view of the admission of DW-1 that she had signed the cheque, filled up the name of the drawer and had put the date on the cheque as '1'4' which would mean '01/04/2010'. At this stage, we need to deal with the objection by the learned Counsel for the appellant with regard to Section 87 of the NI Act and it would be appropriate to reproduce the same. Section 87 of the NI Act provides as under:-
"87. Effect of material alteration.--Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.-- And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.
21. A bare perusal of the aforesaid provision would show that alterations which is consented to by the parties does not render the instrument defective. At the cost of repetition, the cheque Ex.CW-1/1 was signed by the appellant at point 'G'; the amount was filled-up in rectangular box and it appears that cuttings were signed by the appellant further acknowledging on the back that it was towards repayment of loan with her signatures. It is inconsequential that amount of Rs. 5 lacs in words was written by somebody else. The signatures at point B and the initials at point 'E' purportedly that of the appellant cannot be said to be fabricated. Indeed there are contrary version by the finger print experts PW-4 and DW-3 on the said aspect giving their own experts opinions but what this Court finds on a meticulous examination of such signatures is that pattern of writing of Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 17 of 19 the signatures of the appellant at point 'E' and 'F' appear to be from the same pen & ink with same writing style, curve, angularity and fluency or execution of the strokes.
22. Further in the face of testimony of PW-1 that it was the appellant who had brought receipt CW-2 and it may be reiterated that DW-1 i.e. the appellant has admitted that she signed the same at point D on 09.11.2009 and wrote Rs. 5 lacs only at point G beside the fact that her husband signed at point 'I', and thus her plea that it was never intended to be executed for Vijay Kumar Arora but only Vijay Kumar is not fathomable and the failure on her part to examine her husband raises an adverse inference that she had duly executed the said receipt after applying the revenue stamp at point C and E on the same date. This Court has no iota of doubt that in the instant case the appellant has taken the entire delivery justice system for a ride blowing hot and cold in same breath and attempting to subvert the process of law.
23. It is in evidence that she had been looking for a residential plot/flat and ultimately sale deed was executed in her favour on 13.11.2009 by Ved Prakash Chawla (CW-1) and his wife Smt. Shakti Chawla and before that she was in need of some money. Her story that the cheque and the receipt were kept in a folder that was allegedly stolen by the abovesaid sellers is a gross concoction. The story of the appellant that she had taken no loan from the complainant is absolutely false and tainted with ulterior motives No mileage can be afforded to the appellant from the fact that later she made a complaint to the police about the missing cheques and other documents on 18.07.2010. Her Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 18 of 19 legal notice dated 26.07.2010, which was admittedly served upon the complainant was an attempt to manufacture some self serving evidence so as to wriggle out her financial liability. It is not fathomable that the appellant DW-1 would put her signatures on the receipt / pro- note dated 09.11.2009 on CW-2 at point D in the blank and her story that name Vijay Kumar Arora was written later on cuts no ice. The ld Trial Court rightly observed that it is highly unlikely that the appellant being a prudent and educated persons would write a cheque in advance and sign the same even before taking any actual loan from any person, what to talk of the other person Vijay Kumar S/o Nanak Chand. Interestingly, a complaint was filed by the appellant against Ved Prakash Chawla and his wife for allegedly stealing the cheques and other material form her but the same was dismissed by the Court of Ld. ACMM, Dwarka Courts vide order dated 25.06.2012, certified copy of which is Ex.PW-2/1, and the said order was not challenged and has attained finality.
FINAL ORDER:
24. In view of the aforesaid discussion, I find no merits in the present appeal and same is accordingly dismissed, thereby upholding the impugned judgment on conviction dated 10.08.2020. The appellant is directed to appear in person and let she be heard on the point of sentence on 27.10.2021. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2021.10.26 22:18:47 +0530 Announced in the open Court (DHARMESH SHARMA) on 25th October, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi Crl. Appeal-120/2020 Smt. Swaraj Gupta v. Vijay Kumar Arora Page 19 of 19