Delhi District Court
Anil Aggarwal vs Manoj Sharma on 5 February, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 104/12
Unique case ID No. 02404R0319242012
Anil Aggarwal
S/o Sh. S.P. Aggarwal
R/o B4, A/24, Rana Pratap Bagh,
New Delhi110007
.....Appellant
Versus
Manoj Sharma
S/o Sh. M.C. Sharma
R/o 1A/48A, Ashok Vihar,
PhaseI,
Delhi110052
.....Respondent
Date of Decision: 24/01/2013
Date of order on sentence: 05/02/2013
ORDER ON SENTENCE
05/02/2013
Present. Appellant with counsel.
Respondent/convict with counsel.
Heard on sentence.
Learned counsel for appellant has contended that respondent be
punished as per law and compensation be also awarded to the appellant. In
support of the same, learned counsel for appellant has relied upon 2007 Cri.
CA No. 104/12 1
L. Journal, 2590 titled as Sathyan Ayyappa Sathyan V. Yousu and
another, wherein it has been held that no compelling circumstances which
would justify imposition of any deterrent substantive sentence of
imprisonment, leniency can be shown on question of sentence. However,
courts cannot ignore plight of complainant who had been compelled to fight
three rounds of legal battle and to wait from 2004 for redressal of his genuine
grievance.
Learned counsel for appellant has also relied upon AIR 2002
Supreme Court 681 titled as Suganthi Suresh Kumar V. Jagdeeshan,
wherein punishment of imprisonment till rising of the court with fine was
found insufficient and matter was remanded back for awarding appropriate
sentence.
Learned counsel for the appellant has further relied upon 2008 (3)
RCR (criminal), page 569 titled as Sandeep Mittal V. Pardeep Bhalla,
wherein it has been held that under Section 138 of NI Act, court is competent
to award sentence of fine equivalent to double the amount of cheque.
On the other hand, learned counsel for respondent has contended
that only fine be imposed considering the age, antecedents and character of the
respondent/convict, who is aged about 51 years and is doing a private job and
having family to support.
In support of his contentions, learned counsel for the respondent
has relied upon 2012 (1) JCC (NI) 12 titled as R. Vijayan V. Baby & Anr.,
wherein it has been held that a Magistrate can impose the fine in the cases U/s.
138 of N.I. Act exceeding Rs. 5000/ but the ceiling is twice the amount of
CA No. 104/12 2
cheque in question.
Learned counsel for the respondent has further relied upon 2012
(1) JCC 6 titled as Sunny Marks V. John Joy P. & Anr, wherein it has been
held that in the matter of dishonour of cheque, the remedial aspect of the case
has to be given priority than the punitive aspect. The courts below, on
leniency, imposed only a sentence of imprisonment till rising of the court and
he was directed to pay a fine of Rs. 3,50,000/. Accordingly, the sentence of
imprisonment till rising of the court is maintained and the revision petitioner
is also sentenced to pay a fine of Rs. 3,65,000/ and in default, he is directed
to undergo simple imprisonment for a period of six months.
I have considered the submissions of learned counsel for appellant
and have gone through the judgments relied upon by both the parties. I have
also considered the age, character and antecedents of the respondent/convict
and other facts and circumstances. Cheque was issued in the year 2005. Since
then, litigation is going on. In AIR 2002 SC 681, the Hon'ble Apex Court has
already found punishment of till rising of the court and fine of Rs. 5000/
insufficient for offence U/s. 138 of N.I. Act, hence, I am of the view that only
imposition of fine will not be a sufficient punishment according to the offence
proved against by the respondent/convict, so, the request of learned counsel
for the respondent/convict that only fine be imposed is not acceptable.
Offence U/s. 138 of N.I. Act is punishable with imprisonment for a
term which may extend to two years or with fine, which may extend to twice
the amount of the cheque or with both.
Accordingly, sentence of two years simple imprisonment is
imposed with fine of double the amount of cheque Rs. 1,50,000/ in question
CA No. 104/12 3
i.e. 3,00,000/ upon respondent/convict. In default of payment of fine, he shall
further undergo six months simple imprisonment.
Out of fine, compensation to the tune of Rs. 2,95,000/ will be
payable to the appellant, if deposited and no appeal is preferred within the
period of limitation.
Fine not deposited.
Respondent/convict be remanded to serve the sentence.
Announced in Open Court on (Virender Kumar Goyal)
dated 5th of February, 2013 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CA No. 104/12 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 104/12
Unique case ID No. 02404R0319242012
Anil Aggarwal
S/o Sh. S.P. Aggarwal
R/o B4, A/24, Rana Pratap Bagh,
New Delhi110007
.....Appellant
Versus
Manoj Sharma
S/o Sh. M.C. Sharma
R/o 1A/48A, Ashok Vihar,
PhaseI,
Delhi110052
.....Respondent
Date of institution of the case: 24/11/2012
Arguments heard on: 10/01/2013
Date of reservation of order: 10/01/2013
Date of Decision: 24/01/2013
JUDGMENT
This is an appeal U/s. 372 of Cr.P.C. filed on behalf of appellant/complainant against judgment dated 08/10/2012 passed by learned Trial Court.
At the outset, it was argued that the appeal against the acquittal is not maintainable before the Court of Session, but relying upon certain judgments, order was passed dated 18/12/2012 that the appeal is maintainable CA No. 104/12 5 before the Court of Session against the acquittal U/s. 372 of Cr.P.C. and till today, the said order has not been challenged in any manner.
The impugned judgments dated 08/10/2012 has been challenged on various grounds. It is contended that learned Trial Court has failed to appreciate the material placed before it and passed the judgment on the facts and circumstances, which were not relevant to the case and further picked up certain sentences and paragraphs, on which, accused could be acquitted. It is further contended that notice of demand issued to the respondent was not replied in any manner and in the said notice, it was specifically mentioned that a friendly loan was taken of Rs. 14 lacs on the interest of 1½% per month and promissory note dated July, 2005, was also executed. It is further contended that at the time of framing of notice, nothing has been controverted. It is further contended that respondent/accused has admitted in his statement recorded on 03/02/2010 that he had issued cheques and executed the promissory note in favour of the appellant/complainant and the plea that no loan was released to him is an afterthought.
It is further contended that respondent/accused has also admitted his signatures on the cheques and pronote and had stated that name, amount, interest and month on the pronote were filled up by him and even in the receipt, amount, name and month were filled up by him. The only denial is about the mode of receipt. It is further contended that photocopy of pronote as filed was never objected and the learned Trial Court raised such objection at its own in Para 1.1 of impugned judgment, whereas no such defence was taken at the time of framing of notice, hence, the learned Trial Court wrongly and erroneously held that receipt and pronote cannot be relied upon. It is further CA No. 104/12 6 contended that in reply to notice dated 27/08/2007 U/s. 251 of Cr.P.C., respondent/accused had admitted that legal notice dated 13/11/2006 was served upon him and he did not pay the cheuqe amount despite service of legal notice, whereas in the statement, respondent/accused stated that he was not served with any legal notice and signatures on the AD card do not belong to any of the member of his family, which fact has been ignored by the learned Trial Court in all. It is further contended that respondent/accused admitted to have given the cheques as advance towards repayment of loan but claimed that no loan was released to him. However, in the statement, he has stated that cheques were given to complainant/appellant for taking loan from the market, which is an afterthought, as this fact was not raised at the stage of statement in any manner.
It is further contended that if the cheque in question was misused by the appellant/complainant, then why the respondent/accused remained silent till the filing of the complaint and did not take any action against the appellant/complainant and even after receiving the legal demand notice, did not reply the same. Had it been false, then respondent/accused was bound to react by replying the legal demand notice. It is further contended that non mentioning of date of loan in the complaint is a fault of counsel and of not appellant/complainant, hence, he cannot be punished for the same and in the subsequent examination, the appellant/complainant stated the date of loan as 14/07/2005, which the learned Trial Court has ignored. It is further contended that learned Trial Court failed to take note of the conduct of respondent/accused. It is further contended that learned Trial Court misdirected itself about the deal of the vehicle, which at all, was not relevant CA No. 104/12 7 to the transaction of the loan in any manner. It is further contended that according to the learned Trial Court, both appellant/complainant and respondent/accused had failed to show the source of payment of Rs. 33.25 lacs and Rs. 14 lacs, but believed the respondent/accused without any reason, so, committed error. It is further contended that unaccounted money, as observed by the learned Trial Court i.e. loan amount and that the same was not shown in the income tax return, has no relevancy to the case filed U/s. 138 of Negotiable Instruments Act, hence, learned Trial Court had committed grave error and appreciated the defence evidence in a wrong manner. It is further contended that there was no need on the part of the complainant/appellant to mention about the list of creditors or debtors and there is no provision in the income tax, which requires a tax payee to furnish or attach any information in income tax return, hence, learned Trial court has committed illegality, while observing the said facts in the impugned judgment.
I have heard counsel for the appellant/complainant, counsel for respondent/accused and have gone through the TCR.
The case was filed somewhere in 2007 and when the matter reached at the stage of statement of accused, an application was filed U/s. 311 Cr.P.C. for recalling the complainant for further cross, which was allowed on 08/12/2008 subject to cost of Rs. 500/.
On 09/06/2010, an application was filed on behalf of the respondent/accused for directing the complainant to cite the addresses of three persons, from whom, he had arranged the money, which was allowed and the persons, who had given amount as loan to the appellant/complainant, have been examined as defence witnesses.
CA No. 104/12 8
Even in between, respondent/accused also moved an application to obtain handwriting expert opinion on the cheque and pronote, but the same was dismissed by the learned Trial Court on 11/07/2011, against which, respondent/accused also preferred revision before the Court of Ld. ASJ, which was again dismissed vide order dated 02/04/2012 and ultimately, vide impugned judgment dated 08/10/2012, the complaint was dismissed.
Notice U/s. 251 Cr.P.C. was framed against the respondent/accused on 27/08/2007, wherein respondent had admitted that he had issued the cheques in advance against the repayment of loan, but no loan was released to him. Regarding the dishonouring cheque with remarks " funds insufficient", it has been stated that same is a matter on record and service of legal demand notice dated 13/11/2006 has been admitted.
According to legal demand notice Ex. CW1/5, respondent/accused had taken a friendly loan from the appellant/complainant of Rs. 14 lacs on interest of 1½% per months and executed a pronote dated July, 2005 and also issued nine post dated cheques in his favour. Admittedly, no reply to this notice has been given. Copy of pronote has also been exhibited as Ex. CW1/1 with receipt, in the affidavit of evidence. After the evidence, in the statement of accused, respondent/accused has admitted that he had signed the cheques in question and had filled up the amount, but had not filled up the date. He was not having any liability of paying the amount of said cheque. Respondent/accused has admitted that cheque was disnhonoured with the remarks "funds insufficient" in reply to the service of legal demand notice. Now, the respondent/accused has stated that he had not received any notice and signatures over AD car Ex. CW1/8 do not belong to any member of his CA No. 104/12 9 family.
In the explanation given, while recording statement, respondent/accused has stated that complainant has himself filled up the date on the cheque, which was given to the complainant for taking loan from the market. No money was given to him by the complainant, who was partner in the firm. Thereafter, he has told about certain facts i.e. about vehicle purchased in partnership and further stated that he had instructed his partner to borrow money from the market in MayJune,2005, for which, he was asked to sign some undated cheques and pronote, in which, name, amount, interest and month was filled up by him, but the mode was not filled up by him. He had also filled up amount, name and month in the receipt of the pronote, but had not filled up the mode.
At the stage of notice given U/s. 251 Cr.P.C., respondent/accused has admitted that he was served with legal demand notice, so, refusal of the same in his statement is of no consequence and the same could not have been considered in any manner. The respondent/accused has also admitted that he had issued the cheques and had also signed the promissory note and receipt except the mode, so, the same also amounts to admission on the part of resopndent/accused, which the learned Trial court has overlooked. The pronote is of July, 2005, which shows that the respondent/accused agreed to pay a sum of Rs. 14 lacs @ 1½% per month to the appellant/complainant and also executed the receipt. The execution of promissory note and receipt itself shows that he had received the amount, otherwise no person of ordinary prudence would execute a promissory note with receipt without receiving any amount i.e. such huge amount of Rs. 14 lacs. It is the plea of the CA No. 104/12 10 appellant/complainant that post dated cheques were issued, which are dated 28/09/2006 of Rs. 1,50,000/ each and total 8 cheques were issued and one cheque was issued of Rs. 2,00,000/.
Appellant/complainant had tendered his affidavit in evidence before the learned Trial Court and was cross examined on 18/08/2008, wherein he has been cross examined in respect of vehicle No. HR55C2008, which to my mind, is not relevant at all to the case filed U/s. 138 of Negotiable Instruments Act. The appellant/complainant CW1 had further stated in the cross examination that he had given Rs. 14 lacs to the accused on the same date i.e. 14/07/2005 and has further stated that he had not shown the loan in the income tax return and has further disclosed that he had taken this amount from his friend and relatives i.e. Rs. 9 lacs from Arvind Kumar Garg, Rs. 3 lacs from Gauri Shankar and Rs. 2 lacs from Suresh Gupta. In whole of the cross examination, appellant/complainant has not been cross examined on the pronote and receipt of July, 2005, in any manner except giving a suggestion that he got written the pronote in advance, while he was in oral partnership business with the accused, which he had misused in the present case.
It is also suggested to the appellant/complainant that during the oral partnership, he had illegally removed the blank cheques having signatures of accused without his knowledge and had been filled up by him and further suggested that he had filled up the blank cheques in question on 28/09/2006. It is also suggested that accused had not given post dated cheques to him on the same date i.e. on the day of taking loan.
All these suggestions are contrary to the reply of the accused given CA No. 104/12 11 at the stage of notice and also at the stage of recording of his statement, wherein respondent/accused himself has admitted that he had issued the cheques, but date was not mentioned, which is contrary to the suggestion that appellant/complainant had illegally removed the said blank cheques without the knowledge of respondent/accused. The suggestion that accused had not given post dated cheques to appellant/complainant at the time of taking loan, itself proves that cheques were given.
Again, appellant/complainant was further cross examined U/s. 311 Cr.P.C. regarding the same vehicle, which at all, was not relevant in any manner with the pronote and cheques in question, so, in this respect, learned Trial court misdirected itself, while discussing this issue in the impugned judgment, rather from whole of this cross examination, it is clear that both appellant/complainant and respondent/accused were known to each other and due to this reason, complainant/appellant had given loan of such huge amount to him on the basis of pronote and post dated cheques. CW1 complainant/appellant has denied the suggestion that dispute arose between him and accused because of the sale proceeds of above vehicle. The vehicle has registration number but nothing has been brought on record as to whom the vehicle was sold and at what price. No civil or criminal action has been taken so far by respondent/accused against the appellant/complainant for the sale of the said vehicle, which shows that the vehicle was not involved in any manner in this transaction nor CW1 has been cross examined in any manner that vehicle or its sale was related to loan transaction in any manner.
In further cross examination, CW1 appellant/complainant has stated that he does not remember whether he had filed original pronote in the CA No. 104/12 12 court or not. The learned Trial Court observed that original pronote was not on record and if it was so, appellant/complainant could have been directed to produce the same, if the learned Trial Court was so willing to see the original pronote because the pronote and receipt have not been disputed by the respondent/accused himself in his statement. Even then, learned Trial Court has failed to consider the fact of execution of pronote, on which, CW1 has not been cross examined in any manner, so, the suggestion given to CW1 that he is not having any original pronote at any point of time from the date of filing these cases till today is contrary to the explanation given by accused himself in his statement. The suggestion given are contrary to the explanation given by the accused in his statement, which shows the conduct of accused. Accused/respondent has admitted certain entries in his handwriting on the pronote and receipt, so, the burden to prove the fact that mode was not in his handwriting was upon the respondent/accused, which he had failed to discharge in all manner, rather inspite of such cross examination of CW1 dated 01/10/2009, in his statement, respondent/accused has admitted that some entries in promissory note and receipt are in his handwriting. So, the learned Trial Court gravely misdirected itself by overlooking the execution of the pronote by the respondent/accused with receipt, which could have been executed by a person of ordinary prudence only after receiving the amount and not otherwise.
Even if, we presume that promissory note, receipt and cheques were given in advance to borrow the money, then there was no need to execute a single pronote with receipt of Rs. 14 lacs and giving 8 cheques of Rs. 1,50,000/ each and one cheque of Rs. 2,00,000/, because at that time CA No. 104/12 13 respondent/accused was not knowing as to from how many persons, the money would be borrowed by the appellant/complainant and by executing a single pronote with receipt with eight post dated cheques of Rs. 1,50,000/ and one cheque of Rs. 2,00,000/ shows that the post dated cheques were issued in discharge of legally recoverable debt.
In defence, DW1 Arvind Kumar Garg, DW2 Suresh Kumar Gupta and DW3 Gauri Shankar have been examined. These are the persons, who according to the cross examination of CW1 complainant/appellant, had given Rs. 9 lacs, Rs. 3 lacs and Rs. 2 lacs to him, which he had further given to respondent/accused. DW1 Arvind Kumar Garg has deposed that he had given Rs. 9 lacs to the complainant 56 years before being his brother in law. Merely that this loan transaction has not been shown in the income tax return does not mean that this amount was not given by DW1 Arvind Kumar Garg to CW1 complainant/appellant. DW1 Arvind Kumar Garg has not been cross examined in any manner, hence, his testimony is unrebutted and unshaken, which is supporting the case of the complainant. Similar is the deposition of DW2 Suresh Kumar Gupta. He had given loan of Rs. 2 lacs to the complainant @ 18% per annum, but he refused the interest to complainant as brother in law of his wife. Both DW1 Arvind Kumar Garg and DW2 Suresh Kumar Gupta have also disclosed the source of money from where they had received, so, they cannot be doubted in any manner. They are close relatives of CW1, hence, it is not unnatural that they had given such huge amount to the complainant as loan. DW3 Gauri Shankar was declared hostile on the request of accused, so, he was cross examined by learned counsel for accused, wherein he has also deposed that he had given money to complainant Anil CA No. 104/12 14 Aggarwal in the year 2005 i.e. Rs. 3 lacs @ 1.5%. the money was given in cash. He is a friend of complainant, so, loan money given by him to the complainant is also not unnatural. So, all the DWs have supported the case of complainant, rather of respondent/accused, but even then, the learned Trial Court wrongly relied upon the witnesses in favour of the respondent/accused merely on the basis of income tax return and that the amount was huge being not shown in the income tax return.
Now, it has to be seen whether nonmentioning the loan transaction by complainant and defence witnesses in their income tax returns is relevant to the present case filed U/s. 138 of Negotiable Instruments Act. In this respect, learned Trial Court has relied upon certain judgments.
The learned Trial Court has relied upon certain judgment, as referred in para 1.16 of impugned judgment regarding unaccounted transaction, but the same is in reference to a civil suit and not in respect of proceedings U/s. 138 of Negotiable Instruments Act.
During the course of arguments, learned counsel for respondent/accused has relied upon 2012 (4) JCC (NI) 248 titled as Vipul Kumar Gupta Vs. Vipin Gupta, wherein it has been held that if neither in a complaint nor in the evidence, the date, time or year has been mentioned, when the loan was sought or was given, then there is every reason to doubt the version given by the appellant that the cheque was issued in discharge of a liability or a legally recoverable debt.
I have gone through the judgment, as relied upon. In the present case, the appellant has been able to disclose the date, month and year, on which, the loan was given, so, if the same has not been mentioned in the CA No. 104/12 15 complaint, then the same is not affecting to the extent that the complaint is not maintainable.
In the above judgment, as relied upon, the Hon'ble High Court of Delhi has observed that even if, in the evidence, the date, time, date or year has not been mentioned, then the same is to be doubted, but it is not in the facts and circumstances of the present case. In this case, appellant had disclosed the date, month and year of loan transaction, so, this judgment is not applicable to the facts and circumstances of the present case.
Learned counsel for the respondent/accused has also relied upon 2012 (4) JCC (NI) 274 titled as Kapil Sahani Vs. Santok Singh, wherein it has been held that if the loan transaction has not been reflected in the books of account or in the income tax return and further if the loan was given without issuance of any valid receipt or proof, then the same clearly shows that it is very doubtful that the loan was given.
Again, this judgment is also not applicable to the facts and circumstances of the present case as in this case, pronote with receipt has been executed by the respondent/accused and he has admitted so in his examination recorded and further, CW1 has not been cross examined on the aspect of execution of pronote and receipt in any manner except giving suggestions and the respondent/accused has failed to prove his defence regarding the mode of transaction.
On the issue as to whether the transaction was required to be shown in the income tax return, learned counsel for the appellant has relied upon 2007(93) DRJ 333 titled as Mukesh Gupta Vs. P.K. Bajaj, wherein it has been held that if it is not shown by any statutory provision under the CA No. 104/12 16 Income Tax Act 1961 or any other law, which stipulates that a loan transaction is not recorded in the income tax return or a loan transaction, which is in violation of Section 69A, 69B or Section 269SS of the Income Tax Act would be void, then the suit cannot be barred under the provisions of Income Tax Act and the validity of loan transaction.
In view of above, if the present loan transaction has not been shown in the income tax return, then the same has no affect to the extent that no such loan was given. More so, in the present case, respondent/accused has executed pronote with receipt, which the appellant has been able to prove in the evidence and execution of the same has been admitted by the respondent/accused in his statement except the mode of transaction, which resopndent/accused has failed to discharge his burden to prove the same, so, the findings of learned Trial Court in this respect are improper and irregular.
Learned counsel for the appellant has relied upon 2012 (1) DCR 242 titled as R. Raju Vs. K. Sivasamy, wherein it has been held that if the reply to the notice is not given nor the amount was paid, though execution of cheque is admitted, then the person is guilty of offence U/s. 138 of N.I. Act.
Learned counsel for the appellant has further relied upon 2011 (2) DCR 106 titled as Sh. Brahmanand T. Mamlekar Vs. Sh. Eknath Ashok Tari Volvoikar, wherein it has been held that once the signature on the cheque is admitted of the accused, then the presumption envisaged U/s. 118 of N.I. Act can legally be inferred that the cheque was drawn for consideration on the date of which cheque bears.
Respondent/accused has admitted issuance of the cheques, but the CA No. 104/12 17 only defence raised is that these were issued for raising loan from the market and in this respect, respondent/accused has taken different stands from the stage of notice till the conclusion of trial, which are itself contradictory and the admission of execution of pronote with receipt itself proves that the cheques were issued in discharge of legally recoverable debt.
In view of above, the finding of learned Trial Court that respondent/accused has been able to rebut the presumption, is illegal and improper. The finding of learned Trial Court regarding unaccounted transaction of loan is also not according to the law and the judgments relied upon were not applicable to the facts and circumstances of the present case. The learned Trial Court also overlooked the admissions made by the respondent/accused in respect of cheques and pronote with receipt and further overlooked the fact that respondent/accused had failed to discharge his burden to prove regarding the mode of transaction. The learned Trial Court also misdirected itself regarding the transaction of the vehicle, which at all, was not relevant with the case in any manner, so, the findings of the learned Trial Court being contrary to the facts and circumstances of the present case and wrong application of law are set aside.
Accordingly, the appellant has been able to prove his case beyond reasonable doubts in respect of offence U/s. 138 of Negotiable Instruments Act against the respondent/accused, for which, respondent/accused is held guilty and convicted for the same.
Announced in Open Court on (Virender Kumar Goyal)
dated 24th of January, 2013 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
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