Delhi District Court
Umesh Kumar Garg vs Mamta Sharma on 22 March, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 101/2022
CNR No.: DLCT01-003433-2022
Umesh Kumar Garg
S/o Sh. Banarsi Lal Garg
R/o. H. No. 2820, Gali No. 209,
Vishram Nagar, Tri Nagar,
Delhi-110035
..... Petitioner
VERSUS
Mamta Sharma
D/o Sh. Sat Narain Sharma
R/o D-105, Double Storey Quarter,
Idgah Road, Ahat Kidara,
Delhi-110006
..... Respondent
Date of Institution : 23.02.2022
Date of Arguments : 16.03.2022
Date of Judgment : 22.03.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against an order dated 29.10.2021 (In short 'the impugned order') arising from complaint case under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') vide CC No. 13150/2019 titled as 'Mamta Sharma vs. Umesh Kumar Garg' whereby Ld. MM-01 (N.I. Act), Central, Tis Hazari Courts, Delhi (In short 'the trial Court') framed notice under Section 251 Cr.P.C. against the petitioner.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 1/16BRIEF FACTS:
2. The respondent (Hereinafter referred to as 'the complainant') instituted a complaint case under Section 138 NI Act on the averments that the petitioner is trading in 'Polyester Film' at 43B, Shahzada Bagh Industrial Area, Daya Basti, Delhi-
110035. The petitioner is a tenant of Mr. Sat Narain Sharma, father of the complainant qua Property No. C-305, Top Floor, Printer Co-operative Group Housing Society, Sector-13, Plot No. 18, Rohini, Delhi-110085. On 01.09.2015, the petitioner had requested her father for loan of Rs. 4,00,000/- @ 18% per annum for a period of one year for business purpose. The complainant was a subscriber of an insurance policy in the sum of Rs. 2,00,000/- issued by Life Insurance Corporation of India. The said policy matured on 09.09.2015 and maturity amount of Rs. 3,62,000/-was transferred to her A/c No. 2021101022195, Canara Bank, Pahar Ganj, New Delhi, through NEFT. At instance of her father, the complainant agreed to advance a loan of Rs. 4,00,000/- @ 18% per annum for a period of one year w.e.f. 01.09.2015 to 31.08.2016. The petitioner agreed to pay an amount of Rs. 6,000/- per month as interest. The complainant advanced a loan of Rs. 3,62,000/- vide Cheque No. 038943 dated 09.09.2015 in the sum of Rs. 3,62,000/- drawn on 'Canara Bank, Pahar Ganj, New Delhi' and cash amount of Rs. 38,000/- @ 18% per annum for a period of one year to the petitioner w.e.f. 01.09.2015 to 31.08.2016, vide loan agreement dated 14.09.2015.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 2/163. In order to discharge the said liability, the petitioner issued a post-dated cheque vide Cheque No. 682384 dated 31.08.2016 in the sum of Rs. 4,00,000/- drawn on 'Karnataka Bank Ltd., Sector-9, Rohini Branch, Delhi-110085' in favour of the complainant. Thereafter, the complainant extended period of repayment till 31.03.2017, vide loan agreement dated 30.11.2016. The petitioner issued two-post dated cheques vide Cheque No. 682395 dated 27.01.2017 in the sum of Rs. 2,00,000/- and Cheque No. 682396 dated 31.03.2017 in the sum of Rs. 2,00,000/- both drawn on 'Karnataka Bank Ltd., Sector-9, Rohini Branch, Delhi-110085' in favour of the complainant. The petitioner failed to make payment of Rs. 1,22,000/- towards interest accrued w.e.f. April, 2017 to October, 2018. Thereafter, the complainant extended period of repayment of loan amount till 30.09.2019, vide loan agreement dated 30.10.2018. The petitioner issued following post-dated cheques, all drawn on 'Karnataka Bank Ltd., Sector-9, Rohini Branch, Delhi-110085' in favour of the complainant, as under:
Sl. No. Cheque Date Amount
1. 886136 28.06.2019 Rs. 1,00,000/-
2. 886137 28.08.2019 Rs. 1,00,000/-
3. 886138 12.09.2019 Rs. 1,00,000/-
4. 886139 22.09.2019 Rs. 1,00,000/-
5. 886140 29.09.2019 Rs. 1,22,000/-
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 3/16
4. On presentation, the said cheques were returned unpaid with remark 'FUNDS INSUFFICIENT' vide bank memos dated 24.09.2019 and 03.10.2019 respectively. The complainant sent demand notice dated 24.10.2019 to the petitioner through speed post, Regd. AD and WhatsApp on 25.10.2019. The petitioner failed to make payment of the cheque amount within statutory period. Hence, the complainant filed the complaint case under Section 138 NI Act against the petitioner.
SUMMONING ORDER:
5. The trial Court, vide order dated 11.12.2019, summoned the petitioner for offence under Section 138 NI Act. IMPUGNED ORDER:
6. The impugned order is as under:
"29.10.2021 Present: Complainant in person with Ld. Counsel, Sh.
Varun Jain.
Accused with Proxy counsel, Sh. Sachin Mittal.
Heard on notice. On a perusal of the complaint and supporting documents, this court is of the opinion that there are sufficient grounds to frame notice against the accused and proceed to trial. Since Cr.P.C. does not prescribe any format of notice unlike a charge, no format based notice under section 251 Cr.P.C. is being framed. The only requirement of Section 251 Cr.P.C. is that particulars of offence & substance of the accusation should be stated to the accused. In compliance of the same. The factum of issuance & dishonour of cheque in question, the service of legal demand notice, failure of payment despite demand, liability and cumulative effect thereof culminating into an offence U/s. 138 NI Act have been explained to the accused in vernacular.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 4/16The attention of the accused has been drawn to the evidence appearing against him and to each document relied upon by the complainant.
The plea of defence of accused recorded separately.
At this stage, Admission / denial of documents by the accused under Section 294 Cr.P.C. recorded separately. On the basis of the same, the two witnesses cited in list of witnesses by complainant for same stands dropped from said list.
At this stage, after little interaction with both sides there appears to be ample chances of settlement in this matter.
With consent of both sides, be put up before Mediation Cell on 10.11.2021 at 2.00 p.m. and returnable to this court on 15.02.2022."
NOTICE OF ACCUSATIONS UNDER SECTION 251 CR.P.C.
7. On 29.10.2021, the trial Court explained substance of accusations to the petitioner, as required under Section 251 Cr.P.C., to which he responded as under:
"Q.1. Whether you have understood the notice put to you?
Ans. Yes.
Q.2. Did you sign the cheques in question? Ans. Yes. The cheques in question bear my signatures.
Q.3. Did you give / hand over this cheque to the complainant?
Ans. The cheques in dispute were handed over by me to the complainant.
Q.4. Have the particulars in the cheque filled by you, if not, who do you think has filled the same? Ans. All of the particulars in the cheques in question were filled by me (after perusal of cheque).Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 5/16
Q.5. Whether the address mentioned on the legal demand notice is yours?
Ans. It is my correct address.
Q.6. The cheque on presentation got dishonoured, what do you have to say?
Ans. It is a matter of record.
Q.7. Did you receive the legal demand notice? Ans. I received the legal demand notice from the complainant.
Q.8. Do you have any liability towards the complainant?
Ans. I have no liability towards the complainant.
Q.9. Do you have any defence to make, if yes, what is your plea of defence?
Ans. I had taken Rs. 4,00,000/- as loan from the complainant. I had issued cheques in question as payment for the above said loan amount along with interest. I had repaid some interest amount still some payment is left. I am willing to settle the matter.
Q.10. Do you plead guilty or claim trial? Ans. I do not plead guilty and claim trial."
GROUNDS OF CRIMINAL REVISION:
8. The petitioner challenged the impugned order on grounds, as under:
(a) The trial Court did not consider that the case was fixed for furnishing of bail bonds on 29.10.2021, vide order dated 28.10.2021 and for that reason, Proxy Advocate appeared and furnished bail bonds on 29.10.2021;
(b) The trial Court did not consider that main counsel of the petitioner was not available and Proxy Advocate went for getting documents photostated and counsel for the complainant prevailed upon the petitioner to admit liability and the trial Court framed notice under Section 251 Cr.P.C. in absence of counsel for the petitioner;
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 6/16(c) The trial Court framed notice under Section 251 Cr.P.C. arbitrarily in absence of main counsel as well as Proxy Advocate for the petitioner against the interest of justice;
(d) The trial Court did not consider that the complainant failed to prove that said cheques were issued in discharge of a legally enforceable debt;
(e) The complainant did not discharge initial burden and therefore, the petitioner cannot be prosecuted under Section 138 NI Act for want of essential ingredient 'legally enforceable debt';
(f) The complainant has no money lending license and a case under Section 138 NI Act cannot be initiated for recovery of amount advanced on interest;
(g) The complainant has not mentioned legal liability of the petitioner and she has not mentioned any transaction demonstrating existence of any legal liability of the petitioner; and
(h) The complainant has not produced any document to show that any legal liability was in existence at the time of issuance of the said cheques and therefore, presumption under Section 138 NI Act is rebutted.
APPEARANCE:
9. I have heard arguments of Mr. Vishal Bansal, Advocate for the petitioner and Mr. Varun Jain, Advocate for the complainant and examined trial Court record. CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
10. Ld. Counsel for the petitioner contended that the complainant failed to show that the said cheques were issued in discharge of any legally enforceable debt. He contended that the complainant has not discharged initial burden as required under Section 138 NI Act.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 7/1611. Ld. Counsel for the petitioner contended that the complainant did not have any money lending license and she is not entitled to prosecute the petitioner for offence under Section 138 NI Act qua the amount advanced on interest. He contended that the petitioner has not filed any document pertaining to existence of legally enforceable debt or liability. He contended that the petitioner rebutted presumption under Section 139 NI Act. He contended that the case was fixed for furnishing of bail bonds on 29.10.2021, vide order dated 28.10.2021. He contended that for that reason, main counsel for the petitioner did not appear on 29.10.2021 and Proxy Advocate appeared and furnished bail bonds. He contended that on 29.10.2021, Proxy Advocate appearing for the petitioner went for getting certain documents photostated and in his absence, counsel for the complainant influenced the petitioner to admit liability so that he can get the case referred to mediation. He contended that the trial Court framed notice under Section 251 Cr.P.C. in absence of main counsel as well as Proxy Advocate for the petitioner. He contended that notice under Section 251 Cr.P.C. is not signed by Proxy Advocate for the petitioner. He contended that the trial Court framed notice under Section 251 Cr.P.C. in arbitrary manner. He contended that order dated 29.10.2021 as well as notice under Section 251 Cr.P.C. should be set-aside and the trial Court should be directed to record response of the petitioner under Section 251 Cr.P.C. in presence of main counsel for the petitioner.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 8/16CONTENTIONS OF LD. COUNSEL FOR THE COMPLAINANT:
12. Ld. Counsel for the complainant contended that the complainant filed the said cheques, loan agreements, bank memos pertaining to dishonour of the said cheques and demand notice. He contended that there is sufficient material on record for summoning and trial of the petitioner for offence under Section 138 NI Act. He contended that the allegations made by the petitioner against counsel for the complainant are wholly unwarranted and unfounded. He contended that counsel for the complainant had no role in the proceedings conducted by the trial Court. He contended that the trial Court explained substance of accusations to the petitioner and recorded his response after showing him the relevant documents and the revision petition is liable to be dismissed.
STATUTORY PROVISION:
13. Section 138 NI Act is 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 provision of this Act, be punished with imprisonment for [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:Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 9/16
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, [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 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."
14. From a bare reading of Section 138 NI Act, it is evident that the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months or the period of its validity from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 10/16
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
15. In the present case, the complainant placed original cheques, bank memos and demand notice on the file of the Court. The petitioner drawn the said cheques on an account maintained by him. The said cheques were presented for encashment within their validity period. The said cheques were dishonoured for the reason 'Funds Insufficient'. The complainant sent demand notice within prescribed period. The petitioner failed to make payment of the cheque amount. All ingredients required for prosecution of the petitioner under Section 138 NI Act exist.
16. The petitioner admitted that he had drawn the said cheques on an account maintained by him. He admitted that the said cheques bear his signatures. He admitted that he filled all particulars in the said cheques. Therefore, presumption of existence of a legally enforceable liability can be drawn against the petitioner. The petitioner can rebut presumption during trial by leading direct evidence or evidence led by the complainant that there was no legally enforceable debt in existence at the time of issuance of the said cheques.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 11/1617. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court of India considered the contention that the presumption mandated by Section 139 NI Act does not include the existence of a legally enforceable debt or liability, as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct....."
18. The main plank of contention of Ld. Counsel for the petitioner is that the case was fixed for furnishing of bail bonds on 29.10.2021, vide order dated 28.10.2021. This contention is factually incorrect. The trial Court fixed the case for consideration on notice on 29.10.2021, vide order dated 28.10.2021.
19. Contention of Ld. Counsel for the petitioner that the case was fixed for furnishing of bail bonds on 29.10.2021, vide order dated 28.10.2021 and for that reason, main counsel for the petitioner did not appear and Proxy Advocate appeared and furnished bail bonds is factually incorrect. The case was listed for framing of notice on 29.10.2021 and not for furnishing bail bonds, vide order dated 28.10.2021. Moreover, the trial Court did not pass any order pertaining to admission of the petitioner on bail so there was no question of furnishing of bail bonds.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 12/1620. Another contention of Ld. Counsel for the petitioner that Proxy Advocate Mr. Sachin Mittal went for getting certain documents photostated and in his absence, the complainant's counsel prevailed upon the petitioner to admit liability so that the case can be referred to mediation is concerned, it can be stated that Mr. Sachin Mittal, Proxy Advocate has not filed his affidavit pertaining to the said contention. There is no explanation regarding urgency and nature of documents which impelled Mr. Sachin Mittal, Proxy Advocate to leave the Court for getting them photostated when the case was on board for hearing on notice.
21. On perusal of order dated 29.10.2021 and substance of accusations explained to the petitioner under Section 251 Cr.P.C., it is evident that the trial Court not only considered the material on record but also recorded response of the petitioner after showing him the said cheques.
22. The petition belongs to genre of frivolous petitions afflicted our legal system. The petitioner, in his attempt to delay proceedings, not only made untenable contentions but also caused aspersion on trial Court proceedings. It is relevant to note that the impugned order and notice under Section 251 Cr.P.C. were passed on 29.10.2021. The petitioner filed present petition after around 4 months on 23.02.2022. The petitioner did not make any application pertaining allegation of undue influence exercised upon him by the complainant's counsel before the trial Court.
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 13/1623. The petitioner never approached the trial Court for redressal of his grievance that he had given answers in response to substance of accusations explained to him under Section 251 Cr.P.C. pursuant to undue influence exercised upon him by the complainant's counsel.
24. In 'State of Maharashtra vs. Ramdas Shrinivas Nayak & Ors.', (1982) 2 SCC 463, Hon'ble Supreme Court of India held as under:
"5. In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said:
"We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."
6. In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said:
".....these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion."
7. In Sarat Chandra v. Bibhabati Devi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done:
".....It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment....."
8. So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else."
Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 14/16CONCLUSION:
25. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside.
26. Accordingly, the criminal revision petition filed by the petitioner is dismissed. Trial Court record alongwith a copy of judgment be sent to trial Court.
27. Revision file be consigned to record room.Digitally signed by
SANJAY SANJAY SHARMA SHARMA Date: 2022.03.22 17:45:52 +0530 Announced in the open Court SANJAY SHARMA-II nd on this 22 March, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 15/16 Umesh Kumar Garg vs. Mamta Sharma CNR No.: DLCT010034332022 Crl. Revision No. 101/2022 22.03.2022 Proceedings convened through Video Conferencing. Present : Mr. Vishal Bansal, Advocate for the petitioner.
Mr. Varun Jain, Advocate for the respondent.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.03.22 17:46:05 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 22.03.2022 Crl. Rev. No. 101/2022 Umesh Kumar Garg vs. Mamta Sharma Page No. 16/16