Delhi District Court
Shri Yudhister Sharma vs Shri Mukesh Saxena @ M.K. Saxena on 19 February, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Criminal Appeal No. 70/2015
Unique ID No. 02401R0420432015
SHRI YUDHISTER SHARMA
R/o Flat No. 208, Simant Vihar
Kaushambi,
Sector 14, PS Indrapuram,
PO Sahibabad, Gaziabad
U.P. 201010 . . . . Appellant
Versus
SHRI MUKESH SAXENA @ M.K. SAXENA
S/o Late Sushil Kumar Saxena
A164, Karampura,
New Delhi - 110015 . . . . Respondent
Date of institution : 13.08.2016
Judgment Reserved on : 16.02.2016
Date of pronouncement : 19.02.2016
JUDGMENT
1. Vide this judgment, I shall dispose off the instant appeal instituted on 13.08.2016 by the appellant/convict Yudhister Sharma whereby the appellant has assailed the impugned judgment dated Crl. Appeal70/15 Page 1 of 13 04.07.2015 and impugned order on sentence dated 17.07.2015 passed by Ms. Aakanksha Vyas, Ld. MM (N.I. Act)02 (West) in Complaint Case bearing CC No.4157/1 under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act') vide which the appellant was held guilty and convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for three months. The appellant/ convict was also directed to pay compensation amount of Rs.1,90,000/ to the complainant and in case of failure to pay the amount, he was further directed to undergo simple imprisonment for a period of one month.
2. The appellant has assailed the impugned judgment and order on sentence interalia on the grounds: • that it was case of the complainant that he knew the appellant for the last 15 years through a common friend Smt. Nirmala Sharma, who is his neighbour as well whereas Nirmala Sharma contradicted the complainant, while appearing in witness box on behalf of the complainant as CW2, who in her crossexamination conducted on 17.10.2014 stated that complainant and the accused were not known to each other before loan transaction took place between them and Ld. MM Crl. Appeal70/15 Page 2 of 13 has erroneously termed the said contradiction as immaterial and has failed to appreciate the gravity of contradiction between the testimony of CW1 and CW2 to this effect; • that it is further the case of the respondent that he had given loan of Rs.1,20,000/ with interest at the rate of 18% p.a. and that Ld. trial Court failed to appreciate that if loan was given purely for the purpose of earning interest, then why respondent accepted the cheque in question only for the principal amount and why he did not insist for payment of interest amount; • that appellant had signed the cheque, filled in the amount and the date but name of the payee is not in his handwriting, which corroborates the defence of the appellant that said cheque was given by him to Nirmala Sharma on her request and not to the complainant for satisfaction of any legal liability; • that returning memo of Bank of Baroda dated 25.11.2011 contains the information:
Sr. No Instr No. Date Instr Amt
1 464896 24.11.2011 12000.00
which clearly indicates that said returning memo is of the date 24.11.2011 for an amount of Rs.12,000/ and it does not pertain to the cheque in question ; and Crl. Appeal70/15 Page 3 of 13 • that Ld. trial Court failed to appreciate that appellant had no financial transaction with the complainant, which is evident from the testimony of respondent to the effect that he did not even know family members of the appellant nor he ever visited his residence nor he ever had any telephonic conversation with him prior to transaction in question.
3. The case of the complainant culminating in filing the aforesaid Complaint Case, in nutshell, is that he advanced friendly loan of Rs. 1,20,000/ to the appellant, who on repeated requests of complainant issued cheque No.464896 dated 15.06.2011 for Rs. 1,20,000/ drawn on Syndicate Bank, Barakhamba Road, New Delhi towards repayment of loan amount, which cheque when presented for clearance with his bankers was returned unpaid for the reasons insufficiency of funds vide returning memo dated 25.11.2016. The respondent served requisite legal notice dated 29.11.2011 upon respondent but despite service of legal notice respondent did not clear dishonoured cheque amount within the prescribed period of 15 days leading to filing of instant complaint case with the trial Court.
4. Notice of the appeal was issued to the complainant/respondent who has put in appearance and contested the instant appeal.
Crl. Appeal70/15 Page 4 of 13
5. TCR of Complaint Case bearing CC No.4157/1 was requisitioned which has been received and perused. I have heard Ld. counsel for the parties and have carefully perused the entire record.
6. Ld. Counsel for the appellant has vehemently contended that that it is the case of the complainant that he knew the appellant for the last 15 years through Nirmala Sharma, his neighbour whereas Nirmala Sharma, who appeared in the witness box as CW2 in her crossexamination conducted on 17.10.2014 stated that complainant and the appellant were not known to each other before loan transaction in question took place, which demolishes the very case of the complainant that he advanced friendly loan to the appellant.
7. Per contra, Ld. Counsel for respondent submitted that Nirmala Sharma is sisterinlaw of appellant, who introduced the parties and in whose presence loan of Rs.1,20,000/ was advanced by the complainant to the appellant. He has taken me through the testimony of CW2, who deposed that appellant is her brotherinlaw and in FebruaryMarch, 2011 he requested her for loan of Rs.1,20,000/. As she did not have said amount, she arranged the loan from the complainant to the appellant for two months with interest payable at the rate of 18% per annum. She further deposed that when loan was not repaid within the stipulated period, she asked the Crl. Appeal70/15 Page 5 of 13 appellant about it, whereupon appellant gave the cheque in question to the complainant in her presence. She further deposed that in November, 2011 appellant told her that amount had been arranged and complainant could present the cheque in question for encashment and after 78 days the complainant told her that cheque was dishonoured whereupon on her query to the appellant, she was was informed by the appellant that he would repay the loan in cash.
8. Ld. counsel for the respondent also argued that appellant is trying to take undue advantage of minor difference in testimony of complainant and CW2 qua the tenure for which parties were known to each other. He further drew my attention to the testimony of appellant himself, who as DW1 deposed that Nirmala Sharma (CW1) agreed to lend him Rs.50,000/ and Nirmala Sharma requested him to give cheque for Rs.1,20,000/ so that she could show it to another party from whom she had taken some money and thus to gain time from that party for repayment and, therefore, he gave the cheque in question to the complainant.
9. Ld. Counsel for the complainant further drew my attention to the testimony of appellant himself wherein he admitted that Ex.DW1/A and Ex.DW1/B, the cheques, on which he relied upon heavily were in the name of Nirmala Sharma and complainant Crl. Appeal70/15 Page 6 of 13 had no concern with these cheques.
10. Ld. counsel for the appellant has vehemently contended that returning memo of Bank of Baroda issued on 25.11.2011 is qua cheque No. 464896 dated 24.11.2011 for an amount of Rs.12,000/ whereas, cheque in question is of different date and different amount and, therefore, this returning memo cannot be read in evidence and impugned judgment suffers from material illegality.
11. Returning memo of the bank bears correct number of the cheque and correct amount, which is Rs.1,20,000/ although date mentioned is different. Ld. counsel for the appellant argued that bank official should have been summoned to clarify as to whether or not said returning memo pertain to cheque in question.
Here I may refer to the crossexamination of appellant himself conducted on 20.01.2015 wherein he admitted that:
"It is correct that cheque in question was dishonored for want of "insufficient funds".
12. Since appellant himself admitted that cheque in question was dishonoured for want of insufficient funds, I find no substance in the submission of Ld. Counsel for appellant that bank official needed to be summoned for clarifying the date on the cheque in question, Crl. Appeal70/15 Page 7 of 13 which factum on admission of appellant himself seems to be a typographical error as cheque number and the amount are correctly mentioned in the returning memo.
13. Submission of Ld. counsel for appellant that it was not a friendly loan since parties were not known to each other before the loan transaction in question was considered by Ld. trial Court in para 7 of impugned judgment and Ld. trial Court rightly observed as follows:
"In my opinion, this contradiction is not material in view of the fact that the testimony of CW2 is nowhere impeached in so far as the issuance of the cheque in question by the accused to the complainant is concerned. CW2 has unequivocally deposed that the cheque in question was given in her presence and on this aspect her credit has not been shaken during crossexamination. Therefore, this minor contradiction cannot dislodge the presumption of cheque having being issued for consideration".
14. As the appellant himself admitted his signatures on the cheque in question, presumption under Sections 118 and 139 of N.I. Act can be drawn, placing reliance on the judgment of the Hon'ble Apex Court in Rangappa vs. Mohan AIR 2010 SC 1989 which is to Crl. Appeal70/15 Page 8 of 13 the effect that : "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the respondent."
Further defence of the appellant is that name of the payee was not filled in by him and therefore case of the complainant deserved to be discarded. The said plea was discarded by the Ld. Trial Court by placing reliance on the judgment of Hon'ble High Court in case Ravi Chopra Vs. State & Anr., Crl. M.C. 5211/2006 and Crl. M.A. No. 8864/2006, wherein it was held that:
"where the accused facing the trial for the offence u/s 138 is disputing the signature on the cheque itself, then this is a permissible defence within the scope of Section 138 of NI Act but where the signature are admitted, although the cheques are issued in blank there is an implied authority given to the payee to fill up the instrument. Section 20 of NI Act also say so."
15. Reliance in this regard may also be placed on the Judgment of Hon'ble High Court in Jaipal Singh Rana vs. Swaraj Pal, 149 (2008) DLT 882 wherein it was observed that there is no law Crl. Appeal70/15 Page 9 of 13 that requires that particulars of the entire cheque should be filled in by the drawer himself and further on the judgment of Hon'ble High Court of Delhi in Vijender Singh vs. Eicher Motors Limited & Anrs. Crl. M.C. 1454/2011 decided on 05.05.2011 wherein it was observed that any person who issues blank signed cheque should understand the consequences of doing so.
16. Since the appellant admittedly gave cheque in question to the complainant, which fact is corroborated by Nirmala Sharma (CW2), who is sisterinlaw of the appellant, the appellant by handing over cheque in question to the complainant gave him express and implied authority to fill in his name as payee.
17. Loan was advanced in the year 2011. If there was any misuser of the cheuqe by the complainant, there is no explanation as to why the appellant remained silent from 2011 and did not initiate any action against the complainant for misuser of the cheque.
18. Hon'ble Apex Court in case of M/s Laxmi Dyechem v. State of Gujraj & Ors., Criminal Appeal Nos. 18701909 of 2012, decided on 27.11.2012 qua Section 138 of NI Act observed that:
" ... the object underlying the provision contained in the said Chapter was aimed at securing faith in the efficacy of banking operations and giving credibility to negotiable instruments in business Crl. Appeal70/15 Page 10 of 13 and day to day transactions by making dishonour of such instruments an offence ...".
19. The Hon'ble Apex Court in case titled State of Tamil Nadu v. M.K. Kandaswami, (1975) 4 SCC observed that: "while interpreting a penal provision u/s 138 of NI Act, endevour should be made to preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile."
20. In Goa Plast(P) Ltd. Vs. Chico Ursula D'Souza, Hon'ble Supreme Court, while dealing with the objects of the Act, observed as follows: "26... The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and Crl. Appeal70/15 Page 11 of 13 inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long drawn matter and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
21. Loan was advanced way back in the year 2011. Instead of making efforts to pay back the same, he tried every trick in the trade to retain unjust enrichment. He has been able to procrastinate the proceedings by taking false & frivolous pleas to avoid payment towards the cheque. He has not shown any bonafide intention of paying the amount of cheque in question. The conduct of the appellant is, therefore, not in consonance with the aim and objective of the Act as discussed above in M/s Laxmi Dyechem v. State of Gujraj & Ors. (supra); State of Tamil Nadu v. M.K. Kandaswami (supra); and Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza (supra).
22. Keeping in view the said aim of the Act, the fact that defence put forth by the appellant lacks credibility, I endorse the Crl. Appeal70/15 Page 12 of 13 conviction recorded by the Ld. Trial Court rejecting the story of the appellant of misuse of the cheque in question by the complainant. The complainant has discharged burden of proof in respect of necessary ingredients on the basis of which presumption arise under Section 118 and 139 of the Act to the effect that cheque in question had been issued for consideration and for discharge of debt or other liability owned by the appellant in favour of the holder / payee. The defence taken by the appellant does not inspire confidence.
23. In view of the foregoing reasons, the instant appeal is dismissed. The impugned conviction and order on sentence are, therefore, upheld. Ld. Trial Court is directed to secure the presence of the appellant/ convict for undergoing the sentence imposed vide impugned order on sentence dated 17.07.2015.
TCR be sent back forthwith along with copy of the judgment. Appeal file be consigned to Record Room.
Announced in Open Court ( Rekha Rani )
today this the 19th day of District & Sessions Judge / (West)
February, 2016 Tis Hazari Courts, Delhi
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