Delhi District Court
Sh. Deepak Kumar Chakraborty vs Sh. P. P. Khurana on 5 January, 2018
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 05/2017
In the matter of:
Sh. Deepak Kumar Chakraborty
S/o Late P.K. Chakraborty
R/o G-1369, First Floor,
Chitranjan Park, New Delhi-110063,
At present in custody ......Appellant
Versus
Sh. P. P. Khurana
S/o Late P. R. Khurana
R/o C-15, Gulmohar Park,
New Delhi-110049 ......Respondent
Reserved on : 07.09.2017 & 23.11.2017
Pronounced on : 05.01.2018
JUDGMENT
This appeal under Section 374 read with Section 427 of the Criminal Procedure Code, 1973 (in short 'Code'), against the order on conviction dated 05.01.2015 and order on sentence dated 27.02.2015 passed by learned Metropolitan Magistrate-01, South East District, Saket Courts, New Delhi in CC No. 237/13/11 titled as "P. P. Khurana v. Deepak Kumar Chakraborty" whereby appellant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short "NI Act") and sentenced to pay fine of Rs. 4,25,000/-, out of the fine, a sum of Rs. 4,15,000/- was directed to be paid to the CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.1 of 14 complainant and a sum of Rs. 10,000/- was directed to be deposited as a fine. In case of default of payment of fine and compensation, the appellant was directed to undergo simple imprisonment for six months.
2. Ms. Seema Sharma, learned counsel appearing for the appellant has submitted that the appellant did not owe the money claimed by the respondents as this had been an investment in the stock market not a loan and this can be seen in the loan agreement signed by both the parties. The Modus Operandi of the business was that the lender had to tender money in the name of the appellant who would thereafter invest in the various portfolios, and the profit and loss would thereafter accrue to them in the proportion. The respondent has handed over a post dated cheque as security.
3. Ms. Seema Sharma has further submitted that all eight connected cases are between the same parties and trial of all the eight cases completed together and complaints in the eight cases were same and further transaction was also the same. As there was a single transaction constituting offences in all the eight cases and therefore, sentences in the said cases should have been directed to be run concurrently as required by Section 427 of the Code but learned trial court has not passed the order regarding sentences to be run concurrently in all eight cases. In this regard, she has placed reliance upon the decision of Hon'ble Supreme Court in case of V.K. Bansal v. State of Haryana & Ors., Criminal Appeal No. 836-851 of 2013.
4. Per contra, Sh. Sachin Sood, learned counsel appearing for respondents has submitted that the learned trial court has rightly CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.2 of 14 convicted and sentenced the appellant. If any document has been reduced into writing then no oral evidence can be given as per Section 91 of the Indian Evidence Act. Section 427 of the Code is applicable only in respect of substantive sentence and not in respect of default sentence. As in this case and connected seven cases no substantive sentence has been passed and only default sentence in payment of fine has been passed by the learned trial court and therefore, Section 427 of the Code is not applicable in respect of all eight cases.
5. During course of arguments, learned counsel for the appellant has stated also that she is mainly challenging the order on sentence in view of Section 427 of the Code and V.K. Bansal's case (supra). But I have to first consider the appeal against the judgment of conviction.
6. Complainant (respondent herein) had filed a complaint under Section 200 of the Code for the offence punishable under Section 138 of the NI Act against the accused (appellant herein) stating, inter alia, that the accused had approached the complainant in the month of November 2008 through a common friend at New Delhi and the complainant advanced a loan of Rs.14,00,000/- to the accused. Out of said amount Rs.11,00,000/- was paid through cheque no.148752 dated 03.11.2008 drawn on Axis Bank, Green Park, New Delhi. The remaining of Rs.3,00,000/- was transferred to the accused from Angle Broking, New Delhi. Regarding the said loan, a written agreement dated 06.11.2008 was executed between both the parties. The accused further availed the loan of Rs.6,00,000/- from the complainant which was given by cheque dated 22.06.2009 drawn on Axis Bank, Green Park, New Delhi. The said loan was acknowledged by the accused in CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.3 of 14 written agreement dated 22.06.2009 which was entered into between the parties. At the time of entering into the agreement dated 06.11.2008, the accused had handed over a post dated cheque no.556357 dated 01.11.2009 for Rs.14,00,000/- drawn on HSBC Bank, New Delhi. Similarly, at the time of entering into agreement dated 22.06.2009, the accused had handed over a cheque no.046954 dated 22.06.2010 for Rs.6,00,000/- drawn on HSBC Bank, New Delhi. On the assurance and request of the accused, the aforesaid cheques were not presented. But in partial discharge of his liability, accused issued a cheque no.726196 dated 23.11.2010 for Rs.3,00,000/- drawn on United Bank of India, Chittaranjan Park, New Delhi. On the presentation of the said cheque, the same was returned unpaid with the remarks "funds insufficient" vide returning memo dated 23.04.2011. Thereafter, the complainant caused a legal notice dated 26.04.2011 served upon the accused by speed post AD sent on 29.04.2011. The notice was served on the accused on 02.05.2011. The notice called upon the accused to make the payment of the amount of dishonoured cheque within a period of 15 days from the date of receipt of the legal notice. The accused has not made any payment against the dishonoured cheque.
7. Notice under section 251 of the Code for the offence under Section 138 of the NI Act was framed against the appellant on 14.02.2012. Complainant-respondent had examined himself as CW-1 and the accused-appellant examined himself as DW-1 before the learned Trial Court. Statement of accused under section 313 of the Code was recorded by learned Trial Court on 03.02.2014.
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8. In respect of liability of the appellant, the respondent-complainant (CW-1) has deposed that the accused had approached the complainant in the month of November 2008 through a common friend at New Delhi and the complainant advanced a loan of Rs.14,00,000/- to the accused. Out of said amount Rs.11,00,000/- was paid through cheque no.148752 dated 03.11.2008 drawn on Axis Bank, Green Park, New Delhi. The remaining of Rs.3,00,000/- was transferred to the accused from Angle Broking, New Delhi. Regarding the said loan, a written agreement dated 06.11.2008 was executed between both the parties vide Ex.CW- 1/1. The accused further availed the loan of Rs.6,00,000/- from the complainant which was given by cheque dated 22.06.2009 drawn on Axis Bank, Green Park, New Delhi. The said loan was acknowledged by the accused in written agreement dated 22.06.2009 which was entered into between the parties which is Ex.CW-1/2. At the time of entering into the agreement dated 06.11.2008, the accused had handed over a post dated cheque no.556357 dated 01.11.2009 for Rs.14,00,000/- drawn on HSBC Bank, New Delhi. Similarly, at the time of entering into agreement dated 22.06.2009, the accused had handed over a cheque no.046954 dated 22.06.2010 for Rs.6,00,000/- drawn on HSBC Bank, New Delhi. On the assurance and request of the accused, the aforesaid cheques were not presented. But in partial discharge of his liability, accused issued a cheque no.726196 dated 23.11.2010 for Rs.3,00,000/- drawn on United Bank of India, Chittaranjan Park, New Delhi. On the presentation of the said cheque, the same was returned unpaid with the remarks "funds insufficient" vide returning memo dated 23.04.2011. The said cheque no.726196 with returning memo (bank advice) has been exhibited as Ex.CW-1/3.
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9. Hence, the complainant has clearly deposed regarding total loan of Rs.20,00,000/- given by him to the accused- appellant. He has also deposed regarding execution of agreement dated 06.11.2008 Ex.CW- 1/1 and agreement dated 22.06.2009 Ex.CW-1/2 between him and appellant. He has also deposed regarding issuance of cheque no.726196 dated 23.11.2010 for Rs.3,00,000/- (Ex.CW1/3) by the appellant. The defence of the appellant is that in the year of 2006-2007 he entered into the stock market business and he was doing well ; that his friend Saket Grover introduced the complainant for mutual fund with someone else ; that in the meantime, he was given some advice to the complainant as he was having his account with HSBC ; that he opened an account with Angle Broking Company Ltd., wherein he suggested or advised for some of the stockings ; that in that account, the complainant invested a sum of Rs.3,00,000/- and after some time, the complainant gained some profits on following his advice ; that in November, 2008 he invested Rs.11,00,000/- with him (appellant) and entered into an agreement, in which he included the amount of Rs.3,00,000/- which was invested in the Angle Broking ; that then thereafter he further invested Rs,6,00,000/- with him in 2009 and further he also invested in the name of his two daughters Rs.6,00,000/- each towards the investment in the stock market ; that however, the agreement was made as a loan, but he never sought any loan from the complainant for his personal use and the said agreement was executed as a security ; that at the time of agreement he gave some cheques to the complainant as a security cheques and he kept on paying the profit to the complainant by way of cash and cheques till January, 2010 ; he CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.6 of 14 paid total amount of Rs.11.79 Lacs to the complainant and thereafter, he suffered his loss in the business as the stock market crashed during that period that is why he could not make the payment to the complainant ; that one day Saket Grover told him that complainant wants his money back or cheques in lieu of money ; that he expressed his inability to make the payment due to heavy loss of money in the business ; that on the insistence of Saket Grover, he gave some cheques to the complainant and a few cheques got encashed.
10. From the defence of the accused, it is clear that he has admitted that he executed agreements with the complainant. His further defence is that the said agreement was executed as a security and he gave some cheques to the complainant as a security cheques. In K. Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762), it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of NI Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the NI Act enjoins on the Court to presume that the holder of the cheque received it for the discharges of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The accused could not rebut the said presumption. Accused has not examined his friend Saket Grover to show that the complainant invested the amount in the stock market. Further, he himself has admitted in his evidence (DW-1) that the agreement was made as a loan. Hence, it has been proved on record that appellant had issued cheque no.726196 (Ex. CW-1/3) for the sum of Rs.3,00,000/- for discharge of his partial liability.
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11. The said cheque Ex.CW-1/3 was presented for encashment by the complainant but same were returned unpaid on presentation with reason "funds insufficient" vide cheque returning memos dated 23.04.2011 Ex.CW-1/3. Under Section 146 of the NI Act, the Court shall, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishnoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. Hence, it has been proved that the said cheque was presented by the complainant within stipulated period and same was returned unpaid vide returning memo Ex.CW-1/3.
12. In respect of legal notice, the complainant has deposed that he duly sent a legal notice dated 26.04.2011 Ex.CW-1/4 on 29.04.2011 vide registered post AD (Ex.CW-1/5 and Ex.CW-1/6). In his statement under section 313 of the Code accused-appellant has admitted that he has received the legal demand notice and he replied the same. He has also admitted in his evidence (DW-1) that notice was served to him and he replied the same. Hence, it has been proved that the complainant sent the legal demand notice dated 26.04.2011 Ex. CW-1/4 to the appellant-accused within 30 days of the receipt of the information by him from the bank regarding the return of said cheque as unpaid and said legal notice was served upon the appellant and the appellant had sent reply to the said legal notice.
13. In respect of payment of said cheque, the complainant has deposed that the legal notice called upon the accused to make the payment of the amount of the dishonoured cheque within a period of 15 CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.8 of 14 days from the date of receipt legal notice but the accused has not made any payment against the dishonoured cheque. The complaint was filed by the complainant before the learned Metropolitan Magistrate as appellant has failed to make the payment regarding the said cheque.
14. Hence, I am of the view that learned Metropolitan Magistrate has rightly convicted the appellant for the offence punishable under Section 138 NI Act.
15. In respect of sentence, Ms. Seema Sharma, learned counsel appearing for the appellant has submitted that all eight connected cases are between the same parties and trial of all the eight cases completed together and complaints in the eight cases were same and further transaction was also the same. As there was a single transaction constituting offences in all the eight cases and therefore, sentences in the said cases should have been directed to be run concurrently as required by Section 427 of the Code but learned trial court has not passed the order regarding sentences to be run concurrently in all eight cases. Against judgment and order on sentence in eight cases, appellant has filed eight separate appeals including present one. In this regard, she has placed reliance upon the decision in case of V.K. Bansal (supra).
16. Sh. Sachin Sood, learned counsel appearing for respondents has submitted that the learned trial court has rightly sentenced the appellant. Section 427 of the Code is applicable only in respect of substantive sentence and not in respect of default sentence. As in this CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.9 of 14 case and connected seven cases no substantive sentence has been passed and only default sentence in payment of fine has been passed by the learned trial court and therefore, Section 427 of the Code is not applicable in respect of all eight cases. He has also placed reliance upon V.K. Bansal's case (supra).
17. In V. K. Bansal's case (supra), Hon'ble Supreme Court has held in para no.17 and 18:
"17. Applying the principle of single transaction referred to above to the above fact situations we are of the view that each one of the loan transactions /financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We, however, see no reason to extend that concession to transactions in which the CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.10 of 14 borrowing company is different no matter the appellant before us is the promoter director of the said other companies also. Similarly we see no reason to direct running of the sentence concurrently in the case filed by the State Bank of Patiala against M/s Sabhyata Plastics and M/s Raul Plastics which transaction is also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 of the Code do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.
18. In the result, these appeals succeed but only in part and to the following extent:
1) Substantive sentences awarded to the appellant by the Courts of judicial Magistrate, First Class, Hissar and Additional Chief Judicial Magistrate, Hissar, in Criminal complaint cases No.269-II/97;
CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.11 of 14 No.549-II/97; No.393-II/97; No.371-II/97; No.372- II/97; No.373-II/97; No.877-II/96; No.880-II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485- II/96; relevant to the loan transaction between Haryana Financial Corporation and Arawali Tubes shall run concurrently.
2) Substantive sentences awarded to the appellant by the Court of Judicial Magistrate, First Class, Hissar in Criminal complaint cases No.156-II/1997 and No.396-II/1998 between Haryana Financial Corporation and Arawali Alloys relevant to the transactions shall also run concurrently;
3) Substantive sentences inter se by the Court of Judicial Magistrate, First Class, Hissar in the above two categories and that awarded in complaint case No.331-II/97 shall run consecutively in terms of Section of the Code of Criminal Procedure.
4) No costs."
18. In Bensan v. State of Kerala, Criminal Appeal No.958 of 2016 passed on 03.10.2016, Hon'ble Supreme Court relying upon V. K. Bansal's case (supra), held that in terms of sub-Section (1) of Section 427 of the Code, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally CA No.05/2017 Deepak Kumar Chakraborty v. P.P. Khurana Page No.12 of 14 commence at the expiration of imprisonment to which he was previously sentenced. However, this normal rule is a subject to a qualification and it is power of the Court to direct that the subsequent sentence run concurrently with the previous sentence. It was also held that the benefit was confined only in respect of substantive sentences and no qua sentences in default.
19. In Shyam Pal v. Dayawati Besoya & Anr., Criminal Appeal Nos.988-989 of 2016, passed on 28.10.2016, Hon'ble Supreme Court relying upon V. K. Bansal's case (supra) and Benson's case (supra) has held in para no.14 that:
"14. The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent sentence to run concurrently with the previous one was thus underscored It was expounded as well that the direction for concurrent running of sentence would be limited to the substantive sentence alone."
20. Respondent-complainant P.P. Khurana had filed eight complaints against the accused-appellant for the offence under Section 138 NI Act and in all the eight cases, appellant was convicted and sentenced. Against said conviction and sentence of eight cases, appellant has filed eight separate appeals (present appeal, CA No.01/2017, CA No.02/2017, CA No.03/2017, CA No.04/2017, CA No.06/2017, CA No.07/2017 and CA No.204445/2016) which are pending today in this Court. Out of said eight appeals, present one is one of the said appeals.
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21. I am not agree with the contention of learned counsel appearing for the appellant that sentences in all eight cases shall run concurrently as per Section 427 of the Code. In V.K. Bansal's case (supra), Bensan's case (supra) and Shyam Pal's case (supra), it has been clearly held/observed by the Hon'ble Supreme Court that the direction regarding concurrent running of sentence under Section 427 of the Code can be passed with regard to substantive sentence only and provisions of Section 427 of the Code do not permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation. In the present case and other connected seven cases, no substantive sentence has been passed by the learned Trial Court and sentence of six months have been passed only in default of payment of fine/compensation.
22. In view of above discussion, I am of the view that learned Trial Court has rightly convicted and sentenced the appellant. Hence, appeal is dismissed. Learned counsel for the appellant and the respondent have submitted during course of arguments that the appellant is in jail as he is undergoing the sentence in these cases.
Announced in the open court
on 05.01.2018 (SANJEEV KUMAR)
Additional Sessions Judge-05
South East District, Saket Courts
New Delhi
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