Delhi District Court
Ramesh Kumar vs Sh. Gajraj Singh on 21 September, 2015
THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 16/15.
ID No. 02401R0222022015
21.09.2015.
IN THE MATTER OF:
Ramesh Kumar,
S/o Sh. Bale Ram,
r/o GH14/298, Paschim Vihar,
New Delhi.
....... Appellant.
Versus.
Sh. Gajraj Singh,
S/o Late Shri Amar Singh,
r/o G141, Pushkar Enclave,
Paschim Vihar, New Delhi.
....... Respondent.
Date of Institution : 30.04.2015
Date of arguments : 08.09.2015
Date of Judgment : 21.09.2015.
JUDGEMENT
1. This is an appeal against the judgment 30.03.2015 passed by the Ld. MM01 (West), vide which the appellant was convicted for offence u/s. 138 of N.I. Act and against the order on sentence dated 16.04.2015, whereby the Ld. Trial court has sentenced the appellant for a period of three months simple imprisonment and appellant was also directed to pay double the cheque CA No. 16/15. Page No1/12 amount i.e. a sum of Rs. 6 lacs as compensation to the complainant as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. It is also directed that the compensation shall be paid within two months from the date of order. In default of payment of compensation, convict shall further undergo simple imprisonment for three months. Ld. MM has also ordered that if the compensation amount is not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
2. Aggrieved by the judgment and order on sentence, the appellant has filed the present appeal on the ground that the judgment passed by ld. MM is contrary to the facts. The appellant is victim of circumstances. Ld. Trial Court has failed to appreciate that the cheque was given as security and not against any legal liability to the complainant. He knew the complainant personally and having close friendship as well as business terms with him. Cheque was given by the appellant as security of Sh. Rakesh Bansal, who has taken loan from the complainant/ respondent. Ld. MM has gone wrong while convicting the appellant as the appellant has never received any otice u/s. 138 NI Act. Ld. Trial Court has not appreciated the fact that cheque was blank at the time when it was handed over to respondent in security of Rs. 2 lacs loan to Sh. Rakesh Bansal and entire figures were filled by the complainant. Loan of Rs. 2 lacs was returned by Mr. Rakesh Bansal to the respondent and cheque is misused by him. The complainant became dishonest and he intentionally CA No. 16/15. Page No. 2/12 not returned the security cheque to appellant and misused the cheque and converted into a friendly loan against him with a view to extort illegal money. The respondent admitted in cross examination that he filled the entire words of particulars in the present cheque meaning thereby the cheque in question was blank. It is also mentioned that from the testimony of respondent it is clear that cheque was not issued by the appellant to the respondent for liability towards him. Ld. Trial court has not appreciated the evidence of DW1 as well as DW2 Rakesh Bansal. It is prayed that judgment dated 30.03.2015 and order on sentence dated 16.04.2015 be set aside and appellant be acquitted.
3. I have heard the ld. Counsel for the appellant and the ld. Counsel for the respondent at length and perused the records of this Court as well as Trial Court carefully.
4. Perusal of the Trial Court Record reveals that respondent has filed the complaint against the appellant with the averments that in the month of May, 2011, the accused approached him and expressed his financial difficulties and told that he has to urgently make the payment of Rs. 3 lacs and assured that he would repay the loan amount of Rs. 3 lacs maximum by 01.08.2011. The complainant believed the accused and gave him an amount of Rs. 3 lacs in cash. In order to show his bonafide and in order to discharge his liability towards the aforesaid friendly loan amount, the accused issued a CA No. 16/15. Page No3/12 postdated cheque bearing No. 754662 dated 01.08.2011 for Rs. 3 lacs drawn on Indian Overseas Bank, Rohini Branch, R.G. Complex, Plot No. 1, Sector8, Community Centre, Rohini, New Delhi in favour of the complainant. The complainant presented the cheque with his banker but the same was returned with the remarks "Funds Insufficient" vide returning memo dated 09.08.2011. The complainant made telephone call to the accused and apprised him about the fact of dishonour of cheque and accused promised to make the payment within 7 days. After waiting for 7 days, the complainant tried to contact the accused but accused started avoiding the complainant. Accused failed to honour the commitment and complainant sent a legal notice dated 03.09.2011 and legal notice was duly served.
5. The complainant tendered his presummoning evidence and proved documents Ex. CW1/1 to Ex. CW1/9. The accused/ appellant was summoned and notice u/s. 251 Cr.P.C was served upon the accused. The accused admitted his signatures on the cheque and he also received the legal notice. In the statement u/s. 313 Cr.P.C r/w Section 281 Cr.P.C the accused made statement that he has issued the cheque in question to the complainant as security for advancing loan of Rs. 2 lacs to one close friend namely Rakesh Kumar. Rakesh Kumar had already repaid the said loan amount to the complainant but he had not returned back the cheque despite several requests and demands. It is also submitted by him that he has no legal liability towards CA No. 16/15. Page No. 4/12 the complainant. The present complaint is false and bogus. The complainant misused the cheque in question. Accused examined himself as DW2 and also examined Sh. Rakesh Bansal as DW1.
6. Now, I am dealing with the contentions of ld. Counsel for the appellant one by one.
It is contended by ld. Counsel for the appellant that appellnt has not taken any loan rather this cheque was given as security to the complainant as his friend DW1 Rakesh Bansal had taken loan of Rs. 2 lacs from the complainant.
I have perused the record. The complainant during his cross examination has clearly denied that he is not doing the business of giving money on loan. He clearly denied that DW1 has approached him for a friendly loan of Rs. 2 lacs. The complainant/ appellant denied that he has not put any conditions to the accused that he will give blank cheque then he will make the payment of Rs. 2 lacs to Rakesh Bansal. To prove that Rakesh Bansal had taken loan from the complainant, appellant has examined Rakesh Bansal as DW1. This witness has deposed that in the month of April, 2010, he met the complainant for a friendly loan of Rs. 2 lacs. At that time he had put condition on him that accused will give the blank cheque as security then he will give friendly loan. This witness also deposed that he went to Ramesh Kumar's house and told this fact. He along with accused went to the house of CA No. 16/15. Page No5/12 Gajraj Singh (complainant) and accused had given blank signed cheque to him. Complainant gave Rs. 2 lacs to him only for two months. He also deposed that Ramesh Kumar was also present when he returned the amount of Rs. 2 lacs to the complainant. But, during cross examination, this witness deposed that he received Rs. 2 lacs from the complainant. This witness also stated that Ramesh has received Rs. 2 lacs. This witness also stated that he had given a cheque for the amount of Rs. 2 lacs which he had received from Ramesh and he gave a cheque. This witness has again stated that he has received the amount of Rs. 2 lacs from the complainant. DW2 has deposed during examinationinchief that he has received amount of Rs. 2 lacs from the complainant and he returned the amount along with Rakesh Bansal. The accused in his statement has not stated that DW1 has also given cheque to the complainant but complainant refused to accept the same. DW1 has stated that he had issued cheque to the complainant but complainant refused to receive the same from him. DW2 in his cross examination stated that complainant has given loan to DW1 Rakesh in cash. DW2 has also stated that he do not remember the denomination of the notes given by the complainant to him. At one point DW1 has stated that he has received Rs. 2 lacs from the complainant and he again submitted that amount of Rs. 2 lacs was received by the accused. Thus, there is contradictions between the testimonies of DW1 and DW2.
CA No. 16/15. Page No. 6/12
7. It is also stand of both DW1 & DW2 that after two months amount of Rs. 2 lacs was paid to the complainant but in cross examination DW1 has categorically stated that he do not remember the exact date and time of returning the amount. Thus, from the testimonies of DW1 & DW2, it is not proved that DW1 has taken loan of Rs. 2 lacs and he had returned the amount to the complainant. The ld. MM has rightly held that the accused/ appellant has tried to put a false defence.
8. DW1 has also admitted in the cross examination that he new the accused for the last 15 to 20 years and it is hardly believable that accused will return the amount of Rs. 2 lacs without taking any receipt from the complainant. Thus, defence put forward by the appellant/ accused cannot be accepted at this stage. Ld. MM has rightly held that story put forward by the accused is incredible and difficult to believe.
9. In the present case at the time of framing of notice accused admitted his signatures on the cheque. The main contention of the counsel for the appellant is that a blank cheque was issued to the complainant and this fact is also admitted by the complainant. ld. Counsel for the appellant has placed reliance on judgment 2012 (1) JCC (NI) 43 titled as "C. Santhi Vs. Mary Sherly", where it is held that "Blank cheque is not a "cheque", as defined under the Act. It can be treated only as a "cheque leaf" CA No. 16/15. Page No7/12
containing admitted signature of accused. The admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. I have perused this judgment with utmost regard. The ld. MM has held in the judgment that as per Section 20 of Negotiable Instrument Act, 1881, where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument. The ld. MM has relied on the judgment titled as "Jaipal Singh Rana Vs. Swaraj Pal" 149 (2008) DLT 882, where it is held that there is no altercation in a cheque if the amount and the date are filled by somebody else apart from the signatory of the cheque. It is also held that there is no law that requires the filling up of entire cheque by the drawer himself. Ld. MM has also relied on the judgment titled as "Ravi Chopra Vs. State & Anrs." 2008 (2) LRC 118 (Del), wherein, it is held that "if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date". Ld. MM has also relied on the judgment titled as "Vijender Singh Vs. Eicher Motors Limited & Anr.", wherein it is held that any person who issues blank signed cheque should understand the consequences of doing so. Thus, in view the judgments, the appellant has admitted to issue cheque to the CA No. 16/15. Page No. 8/12 complainant in blank, I am of the view that he has consented impliedly or expressly to filling up of the cheque by the payee on a later date. Thus, this contention of ld. Counsel for the appellant carries no force.
10. It is vehemently contended by ld. Counsel for the appellant that no legal notice was received by the appellant and thus, no case under Section 138 NI Act is made out against the appellant.
I have perused the record. The appellant at the time of framing of notice admitted that he has received legal notice and also replied the same. Thus, this contention carries no force.
11. As both DW1 & DW2 have admitted that amount of Rs. 2 lacs was received, I am of the view that appellant has put up a sham defence. Ld. Counsel for the appellant has also placed reliance on judgment titled as "Saj Properties Pvt. Ltd. Vs. Virender Dagar". I have perused the judgment with utmost regard but this judgment is not helpful to the facts and circumstances of the case. Ld. Counsel for the appellant has also placed reliance on judgment 2012 (1) JCC (NI) 20 titled as " SHAJAHAN T.M. Vs. P.J. ABRAHAM PUTHENPURAYIL HOUSE & ANR." but this judgment is also not helpful to the appellant.
It is very difficult to believe that without executing any receipt or documents, the amount will be paid by Rakesh Bansal or by the appellant to CA No. 16/15. Page No9/12 the complainant. It is difficult to believe the story put forward by the appellant as DW1 has categorically stated that he did not remember the exact date and time, when the appellant returned the amount to the complainant. Moreover, DW2 stated that he did not remember the denomination of the notes given by the complainant to him. Thus, defence put forward by the appellant cannot be believed.
12. In the case of Habballapa Dungappa Katti & Ors. Vs. State of Karnataka 2001 (3) Crimes 218 (SC) and in the case of Y. Sreelatha @ Raja Vs. Mukundchand Bothra 2202 (1) All India Banking Law Judgments 87 at para 31, it was held that the words 'unless the contrary is proved' contained in Section 118 and 139 of the negotiable instrument Act would make it clear that the presumption has to be rebutted by proof and not by bare explanation, which is merely plausible. Unless the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to the rebutted. Hon'ble Supreme Court in Hiten P. Dalal Vs. Bratindra Nath Banerjee 2001 (Crime) 220 has already held that the onus is on the accused to prove by leading cogent evidence that cheque in question was not issued in discharge of any debt or liability.
The Hon'ble High Court of Delhi in case titled as "Willson Mathew Vs. State" has held that the security cheque perse could not be kept out of Section 139 of N.I. Act and held that even though a dishonoured cheque CA No. 16/15. Page No. 10/12 was as security on the basis of that there is no chance to escape from legal liability under the provisions of N.I. Act.
13. In view of the above discussions, I do not find any infirmity or illegality in the impugned judgment dated 30.03.2015 passed by the trial court in CC No. 905/1 and it is upheld. The appeal filed by the appellant is without any merits and same is hereby dismissed.
14. It is submitted by ld. Counsel for the appellant that appellant has four children. He is a poor person. It is prayed that lenient view be taken against the appellant.
On the other hand, respondent submits that order on sentence passed by ld. Trial Court is on the facts and circumstances of the case and he is satisfied by the order on sentence passed by the ld. Trial Court.
The ld. Trial Court has sentenced the appellant to undergo simple imprisonment for a period of three months and was also directed to pay double the cheque amount i.e. a sum of Rs. 6 lacs as compensation to the complainant as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. It is also directed that the compensation shall be paid within two months from the date of order. In default of payment of compensation, convict shall further undergo simple imprisonment for three months. Ld. MM has also ordered that if the compensation amount is not paid in time, shall be CA No. 16/15. Page No11/12 recoverable under the provisions of Section 421 Cr.P.C.
In the present case the cheque was given by the appellant on 01.08.2011 and not a single penny has been given by the appellant to the respondent till date. I am of the view that Ld. Trial Court has already taken lenient view against the appellant and the order on sentence dated 16.04.2015 passed by ld. Trial Court is affirmed and appellant is sentenced to undergo simple imprisonment for a period of three months and also directed to pay double the cheque amount i.e. a sum of Rs. 6 lacs as compensation to the complainant as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. It is also directed that the compensation shall be paid within two months from the date of order. In default of payment of compensation, convict shall further undergo simple imprisonment for three months. It is also ordered that if the compensation amount is not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
The cheque is dated 01.08.2011 and the cases of dishonour of cheques are at high rise in the society. I am of the view that ld. Trial court has already taken lenient view. The appellant has not paid the compensation amount before the ld. Trial Court or before this Court.
Trial Court record along with copy of the judgment be sent back. Attested copy of the judgment be supplied to the appellant free of cost. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA)
COURT ON : 21.09.2015. ASJ5 (West), THC, Delhi.
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