Delhi District Court
Delhi93 vs Sh. Prit Pal Singh Chawla on 16 January, 2015
IN THE COURT OF SH. PARVEEN SINGH,
ADDITIONAL SESSIONS JUDGE03(NE), ROOM NO.53,
KARKARDOOMA COURTS, DELHI.
CA No. 10/14
Unique Case ID no. 02402R0188432014
Smt. Kirti Dutta
W/o Sh. Ajay Dutta
R/o Flat No.1678
Janta Flats, Nand Nagri
Delhi93. ... Appellant.
Versus
Sh. Prit Pal Singh Chawla
S/o Sh. Jawand Singh
R/o H.No.226A, PocketE, G.T.B. Enclave
Delhi. ...Respondent.
Date of Filing : 02.07.2014.
Date of reserving judgment / order : 25.11.2014
Date of pronouncement : 16.01.2015.
CA No.10/14
P.S. Shahdara 1 of 11
JUDGMENT
1. The present appeal u/s 374(3) of Cr.P.C. has been preferred against the impugned judgment dated 29.05.2014 whereby the appellant was convicted u/s 138 N.I. Act and the order on sentence dated 05.06.2014 whereby the appellant was sentenced to simple imprisonment for a period of six months and a fine of Rs.60,000/.
2. Briefly stated, the facts were that the respondent had filed a complaint u/s 138 N.I. Act alleging that the appellant had taken a financial help of Rs.60,000/ from the respondent and in discharge of that debt, on 20.09.2011, the appellant had issued a cheque bearing no.408157 dated 20.09.2011 for a sum of Rs.60,000/ in favour of the complainant. The cheque when present for encashment, was returned unpaid vide memo dated 28.09.2011 with remark ''no such account''. The cheque was represented but again returned with same remark vide memo dated 10.10.2011. The cheque was then again presented but met the same fate vide memo dated 29.11.2011. The respondent then sent the legal notice dated 05.12.2011 to the appellant vide registered AD but despite service of legal notice, the appellant failed to make the payment of the cheque amount within the stipulated period and hence, the complaint was filed.
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P.S. Shahdara 2 of 11
3. On 18.04.2012, a notice u/s 251 Cr.P.C. for offence u/s 138 N.I. Act was framed against the appellant to which she pleaded not guilty and claimed trial. Thereafter, the complainant led his evidence and on conclusion of evidence of the complainant/respondent, statement u/s 313 Cr.P.C of the appellant was recorded and then on 29.05.2014, the learned trial court passed the impugned judgment whereby the appellant was convicted u/s 138 Cr.P.C. On 05.06.2014, the learned trial court sentenced the appellant to simple imprisonment for a period of six months alongwith fine of Rs.60,000/ which was to be paid to the complainant as compensation u/s 357(1)(b) of Cr.P.C and hence, the present appeal.
4. I have heard learned counsel for the appellant as well as learned counsel for the respondent.
5. Various grounds have been taken on behalf of appellant. It has been contended by learned counsel for the appellant that the judgment has been passed by the learned trial court, without appreciating the evidence and on the basis of conjectures and surmises. It has further been contended that the cheque in question was not issued by the appellant against any liability but was issued as a security for the loan of Rs.10,000/ taken by the husband of the appellant. However, the learned trial court completely ignored this fact. It has further been contended that despite specific defense being taken and the respondent's failure to produce any document or to prove that at the time of alleged loan he had financial CA No.10/14 P.S. Shahdara 3 of 11 capacity to grant the loan, learned ACMM overlooked this vital point and came to an erroneous conclusion. It has further been contended that the learned ACMM overlooked the fact that the cheque in question when given to the respondent was a blank cheque as the respondent in his crossexamination at one stage had stated that he was given the duly filled cheque but on the other hand, he admitted that the cheque in question was in his handwriting. This fact was completely ignored by the learned ACMM as this fact clearly proved that the cheque was a blank cheque given as a security. It has further been contended that CW2 who was bank official had clearly stated in his crossexamination that the cheque number and the amount was not reflected in the statement of account which is Ex.CW2/A and this piece of evidence was not taken into consideration by the learned ACMM. It has further been contended that the respondent had stated in his crossexamination that he was an income tax payee and he had shown the loan amount in his returns but he failed to file the copy of income tax returns and therefore, the complainant had rebutted the presumption. It has further been contended that the complainant/respondent had failed to prove the factum of granting loan because the respondent had claimed that the loan was given in presence of Darshan Lal but the said Darshan Lal was never examined as a witness. It has further been contended that the legal notice was not served upon the respondent/appellant and in absence of any legal notice, the complaint was liable to be dismissed but the CA No.10/14 P.S. Shahdara 4 of 11 learned trial court ignored this fact.
6. Countering the same, Ld. Counsel for the respondent has contended that all these grounds taken by the appellant have been duly dealt with by the Ld. ACMM in his judgment and there is no illegality or infirmity in the order.
7. I have given my considered thought to the rival contentions and carefully perused the trial court record.
8. The first and foremost ground taken by the appellant is that the cheque in question was not given in consideration of any loan in discharge of any debt, but given as a security.
9. In this regard, I find that section 139 N.I. Act reads as ''it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque for discharge in whole or in part of any debt or other liability''. Thus, u/s 139 N.I. Act, there is a legal presumption that the holder of the cheque had received it for the discharge of debt or liability either in whole or in part. There is also a presumption u/s 118 (a) of the N.I. Act that every negotiable instrument shall be made or drawn for consideration. However, both these presumptions are rebuttable and the burden to rebut these presumptions is upon the accused. This burden can be discharged by the accused by preponderance of probabilities either by stepping into the witness box or through the crossexamination of the complainant witnesses or any other evidence. In the light of these legal CA No.10/14 P.S. Shahdara 5 of 11 prepositions, it is to be seen that whether the accused had rebutted the presumption of section 118 and 139 of N.I. Act.
10. The complainant appeared as CW1 and categorically deposed that in consideration of the loan advanced by him, accused on 20.09.2011, issued the cheque in question which is Ex.CW1/A. During his crossexamination, a suggestion was put to him that the husband of the accused had taken a loan of Rs.10,000/ and had issued two security cheques against the said loan. This had been paid and the cheques issued in the year 2001 had been misused after a passage of 10 years. It was also suggested to him that the husband of the accused had already paid the loan amount. The complainant denied these suggestions as incorrect. The question is whether by merely suggesting that the loan was in fact taken by the husband of the complainant and was repaid and that the cheques had been misused would be sufficient by preponderance of probabilities to rebut the presumption? The answer to the question is emphatic 'no'. A mere bald suggestion will not be sufficient to rebut the legal presumptions unless by some other evidence, the defense raised by virtue of these presumptions is established as a probable fact before the court.
11. In the present case, I find that apart from suggestions, the appellant had not brought any evidence before the learned trial court which could establish the facts put in these suggestions. The learned trial court had rightly held and I also find CA No.10/14 P.S. Shahdara 6 of 11 that it is highly improbable conduct for a person who has already paid the loan to allow his / her cheques to remain in the custody of the creditor without taking any receipt of said payment. I accordingly find that from the crossexamination of the respondent, nothing can be found by which it could be said that the appellant had rebutted the presumption.
12. Learned counsel for the appellant has further contended that the appellant had rebutted the presumption because the respondent could not bring anything on record to prove that either he had sufficient means to grant the loan or that he had in fact given the loan to the appellant. He has contended that despite stating that the amount had been reflected by the respondent in his income tax returns, the respondent had failed to prove any document to show that in fact the loan amount had been reflected by the respondent in his income tax returns and as the respondent had not reflected the same in his income tax returns, he has withheld this document.
13. In this regard, I find that the learned trial court has dealt with this point in detail and rightly so. I further find that the respondent has nowhere stated that he had reflected this amount in his income tax returns, he only stated that he did not remember whether, he had reflected the same in his income tax returns or not. It was never suggested to the respondent when he appeared as CW1 that he did not reflect the same in his income tax returns and that is why he was not required to CA No.10/14 P.S. Shahdara 7 of 11 produce the copies thereof before the court. In absence of any suggestion of this sort, it was not for the respondent to bring his income tax record before the court and show whether this amount had been reflected in the income tax returns or not. On the contrary, it was for the appellant to specifically ask the respondent to bring his income tax record before the court and then give him an opportunity to explain those returns. Once the appellant failed to seek these records and explanation from the respondent, the appellant cannot take advantage of this fact.
14. The next contention of learned counsel for appellant is that CW2 had clearly stated that the cheques in question was not reflected in the statement of account Ex.CW2/A which he had produced before the learned trial court and the learned trial court should have taken note of the said fact. First of all I find that what would have been the effect of this fact, has not been made clear. Secondly, I find that the statement of account Ex.CW2/A filed by CW2 clearly states that on 30.09.2011, this account had been closed. Once the account was made inoperational, no transaction could have been recorded in this account and could have been reflected in the statement of account and therefore, on this ground the judgment of learned trial court cannot be assailed.
15. The next contention of learned counsel for appellant is that the cheque in question was a blank cheque which has been misused by the appellant. It is correct that at one stage the respondent had stated that a duly filled cheque was CA No.10/14 P.S. Shahdara 8 of 11 handed over to him by the accused and later on he admitted that the cheque was in his handwriting but he had voluntarily stated, that he had filled up this cheque in the presence of accused. No suggestion was put to this witness that this cheque was not filled by him in the presence of accused. Therefore, the testimony of the respondent that the cheque was filled up by him in the presence of accused remains completely unrebutted. Even otherwise, as per section 20 of N.I. Act, a person who signs and delivers a cheque which was either wholly blank or incomplete gives an implied authority to the holder of that cheque to make that cheque complete. Therefore, even if it is presumed that it was a blank cheque that was handed over by the appellant, this fact will not absolve the appellant of her liability. Apart from that, I find that non examination of Dharam Lal was not fatal to the case of the respondent because the appellant had otherwise failed to rebut the presumption as the respondent was not required to bring any further evidence to prove the transaction of loan.
16. It has further been contended by learned counsel for the appellant that no case u/s 138 N.I. was made out as mandatory notice u/s 138 N.I. Act had never been issued and served upon the accused / appellant. In this regard, I find that the respondent, who had appeared as CW1 before the learned trial court, had categorically deposed that he had sent legal notice dated 05.12.2011to the accused / appellant by way of registered post with acknowledgment card due. The AD CA No.10/14 P.S. Shahdara 9 of 11 card duly signed had been received back but despite service of notice, the accused neither replied the notice nor paid the cheque amount within the stipulated period. The legal notice was exhibited as Ex.CW1/C, receipt of registered AD post was exhibited as Ex.CW1/D and the acknowledgment due card was exhibited as Ex.CW1/E. During crossexamination, only a suggestion was given to the witness that the accused had not received any legal notice prior to filing of this case. However, it was nowhere denied that the respondent had not sent the legal notice at the correct address of the accused or this acknowledgment card which is Ex.CW1/E was a forged or manipulated document. In view of this unrebutted evidence, it stood established that the notice was duly served upon the appellant and a mere bald suggestion that the appellant had not received the notice would be of no avail to the accused/appellant. Even otherwise, learned ACMM had dealt with this issue in detail and had correctly held that once a notice had been sent at correct address under registered post, presumption arose u/s 27 of General Clauses Act that the notice was duly served upon the intended recipient. In these circumstances, I hold that there is no force in the contention of learned counsel for the appellant that the notice was not served upon the accused and on this ground, the appellant cannot be successful in assailing the judgment of learned trial court.
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P.S. Shahdara 10 of 11
17. In view of my above discussion, I do not find any illegality or infirmity in the judgment of learned trial court whereby the appellant was convicted u/s 138 N.I. Act and the same is accordingly upheld.
18. As regards the sentence, I find that it has not been prayed that the quantum of sentence awarded by learned ACMM was in any manner harsh or beyond the powers of learned ACMM. Even before this court, neither the appellant nor the respondent have prayed for any change in the quantum of sentence. I accordingly do not find any reason to modify the order on sentence passed by learned trial court. The order on sentence is accordingly upheld. The present appeal is accordingly dismissed. TCR be sent back with copy of this judgment. Appeal file be consigned to the record room.
Announced in open court (Parveen Singh)
today on 16.01.2015 Additional Sessions Judge03
(This judgment contains 11 pages (NE): Karkardooma Courts,
and each page bears my signatures.) Delhi.
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