Delhi District Court
Smt. Geeta Rani vs Om Prakash Bhardwaj on 12 March, 2021
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (SFTC) :
DWARKA COURTS : NEW DELHI
C.A.No: 440251/2016
U/s: 374 CrPC
PS: Kapashera
(In C.C.No. 5051/2014)
In the matter of
Smt. Geeta Rani
W/o Sh. Ashok Kumar
R/o: Vill. Boond Khurd,
Post Boond Kalan
Distt. Bhiwani
Haryana
....Appellant
Versus
Om Prakash Bhardwaj
S/o Sh. Daya Kishan
R/o: WZ199E, Raj Nagar
Part - II, Near Gupta Hardware
Palam Colony
New Delhi - 110045
....Respondent
JUDGMENT
1. The present appeal has been preferred by the appellant against the judgment of conviction dated 23.08.2014 and subsequent order on sentence dated 30.08.2014 passed by the Court of Sh. Ravinder Singh - II, ld. MM (N.I.Act 07), Dwarka Courts, New Delhi in respect of C.A.No: 440251/2016 Page 1 of 13 C.C.No. 5051/14, under Section 138 N.I.Act titled as Om Prakash Bhardwaj v/s Geeta Rani.
2. Vide the judgment of conviction dated 23.08.2014, the appellant herein was convicted for an offence under Section 138 of N.I.Act and vide aforesaid order on sentence dated 30.08.2014, she was sentenced to undergo SI for a period of one year and was also directed to pay a fine of Rs. 10,000/ and in case of default of payment of fine, she was further directed to undergo SI for a period of three months.
3. Feeling aggrieved from the aforesaid judgment and order on sentence, the appellant had challenged the same on the following amongst other grounds :
(i) That the said order of conviction and judgment was bad in law as well as on facts as the sentence inflicted upon the appellant was too harsh and severe because the ld.
Trial Court had failed to appreciate the fact that complainant in his cross examination had specifically stated that though he had been filing income tax returns but had nowhere stated therein that he was having a cash of Rs. 14,70,000/ in his hand, nor, he had mentioned about the advancement of loan of Rs. 19,70,000/ to the appellant in his ITR filed before the concerned authorities.
C.A.No: 440251/2016 Page 2 of 13(ii) Ld. Trial Court had failed to appreciate the fact that complainant in his cross examination had specifically stated that he had taken the loan of Rs. 5,00,000/ from one Sh. Hukam Chand @ Hukam Singh, to pay the total amount of Rs. 19,70,000/ for the purpose of its advance to the appellant. However, this fact was not disclosed by him either in his legal notice/ complaint or in his income tax returns.
(iii) Ld. Trial Court had also failed to appreciate the fact that onus had shifted upon the complainant once he could not prove his financial capacity to extend the loan to the appellant herein. Therefore, appellant had successfully rebutted the presumption under Section 118(a) r/w Sec. 139 of the N.I.Act and thus had successfully proved that the cheque in question was not issued in discharge of any legally enforceable debt or liability.
(iv) Ld. Trial Court had also failed to appreciate that under the scheme of N.I.Act, a statutory presumption was created in favour of the holder of the negotiable instrument in due course and thus the appellant/ accused had successfully discharged the onus as placed upon her by showing nonexistence of consideration or that the existence of consideration was improbable or illegal. Thus, the onus would have shifted back upon the complainant who would have been under the obligation to prove it as a matter of fact and his failure to do so should have disentitled him from C.A.No: 440251/2016 Page 3 of 13 claiming any relief, on the basis of said Negotiable Instrument.
Reliance in this regard has been placed on the citation of Hon'ble High Court of Delhi in case titled as Satish Kumar v/s State of Delhi 2004 (2013) DLT 289.
(v) Ld. Trial Court had also failed to appreciate the fact that complainant had not adduced any evidence to show that he had arranged the remaining amount of alleged loan from Hukam Singh or whether the said Hukam Singh himself had the amount of Rs. 5,00,000/ lying with him so as to give it to the respondent who had advanced the alleged loan to the appellant.
(vi) Ld. Trial Court had also failed to appreciate the fact that the appellant in the present case was never served with the legal notice which fact was also accepted by the respondent in para no. 5 of his complaint as well as the fact that respondent had never produced the postal receipts of dispatch which were stated to have been allegedly lost by him and in respect of which NCR no. 384/2011 dated 21.02.2011 was also obtained by him but the same was also not duly proved by him in the Court.
(vii) Ld. Trial Court had also failed to appreciate that the cheque in question did not bear the signature of C.A.No: 440251/2016 Page 4 of 13 appellant as her signatures in the account opening form were in English language, whereas, the signature appearing on the cheque were in Hindi script (this ground has been factually written incorrect by the appellant in her appeal as she has claimed her signatures on the account opening form were in Hindi, whereas, signatures on the cheque in question were in English).
(viii) Ld. Trial Court had also failed to appreciate that the cheque in question was misused by the respondent who had abused the process of law and thus the impugned judgment as well as order on sentence were based up on conjectures and surmises and were liable to be set aside.
4. Briefly stated the facts that had given rise to the filing of the present appeal are given here as under :
As per the case of respondent, who was the complainant before the Trial Court, the appellant herein along with her husband had approached him for a friendly loan on 15.08.2010 and had asked for a loan of Rs. 20,00,000/ from him as she needed the money for the treatment of her sister in law (bhabhi) who was stated to be suffering from cancer.
The appellant had also told the respondent that she was in the process of disposing of her house situated in the Raj Nagar, Part - II, Palam Colony, New Delhi and would be repaying the said loan amount within three months after C.A.No: 440251/2016 Page 5 of 13 disposal of said house. She had also pledged the original documents of one property as collateral security, after which the respondent had financed her the total amount of Rs. 19,70,000/ for which consideration, appellant herein had issued him a cheque forming the subject matter of the present matter dated 27.11.2010 for an amount of Rs. 19,70,000/. However, in the month of November 2010, the appellant along with her husband had disappeared and were not traceable. After lot of efforts, the appellant was traceable at her village and her husband was traceable at his office and both of them had assured the respondent that he was at liberty to present the cheque in question in the last week of December 2010 and that they were having sufficient funds available in their account to honor the same. However, when the said cheque was presented for encashment on 23.12.2010 by the respondent through his banker, the same was returned unpaid due to insufficiency of funds in the account of the appellant. The legal demand notice was sent by the respondent to the appellant at all her available addresses, same were returned unserved with respective postal remarks. Since no payment was made within the statutory period of 15 days as stipulated in the law, hence, the present complaint was filed.
5. The appellant was summoned and notice under Section 251 CrPC was served upon her to which, she had replied in negative and claimed her innocence and had also C.A.No: 440251/2016 Page 6 of 13 denied having been the author or signatory of cheque in question. It was also claimed by her that the cheque though belonged to her was obtained by the respondent by way of fraud.
6. In order to prove his case, the respondent appeared before the Trial court and adopted the same evidence in his examination in chief which was tendered by him at the stage of presummoning evidence. He was also duly cross examined at length on behalf of the appellant and thereafter respondent evidence was closed. Appellant was examined under Section 313 CrPC, where also, she had maintained the same stand as taken by her at the time of replying to the notice under Section 251 CrPC.
7. Not only this, but also appellant herein had examined three witnesses - DW1 was one Sh. Kailash Chopra, Dy. Manager, SBI, who had placed on record the statement of account as Ex. DW1/1, pertaining to the account maintained by the appellant with his branch as well as account opening form of the appellant and photocopy of cheque as Ex. DW1/2 and Ex. DW1/3 respectively. DW2 was one Dr. Amulya Bharat, Psychiatrist, from whom the husband of appellant was stated to be taking treatment for his disease paranoid schizophrenia. DW3 was one Sh. Deepak Jain, handwriting expert who had placed on record his report citing that due to difference in the admitted C.A.No: 440251/2016 Page 7 of 13 signatures of appellant with those disputed signatures, the comparison of two was not possible. Thereafter, defence evidence was closed.
8. After appreciation of the evidence available on record, the ld. Magistrate, vide impugned judgment was pleased to convict the appellant for offence under Section 138 N.I.Act and was further pleased to award the aforesaid sentence to her, vide impugned order on sentence dated 30.08.2014.
9. I have carefully examined the record as well as heard ld. Counsel(s) representing the parties at length.
Though, I find myself in agreement with the contentions raised on behalf of the appellant that the respondent herein was under an obligation to show his financial capacity to have advanced the loan of such a huge amount to her, but from a bare perusal of the cross examination of the respondent conduced before the ld. Trial Court, it becomes amply clear that not even a single question was ever put to him regarding his financial capacity or about the said Hukam Singh from whom he had allegedly taken Rs. 5 lakhs for the purpose of advancement of loan to the appellant. Thus, by not putting any question or atleast even a suggestion to the respondent challenging his financial C.A.No: 440251/2016 Page 8 of 13 capacity, the appellant is presumed to have conceded in favor of the same.
10. So far as plea regarding non receipt of the legal notice by the appellant is concerned, a perusal of the impugned judgment reveals that ld. Magistrate had dealt with this issue in detail while discussing the evidence and even perusal of the report on one of such envelopes, which was sent to the appellant at her native village address categorically reflected that she was not even found residing at her native village address and was stated to be residing somewhere in Bhiwani, but her family members had not disclosed her address of Bhiwani to the postal authorities, which clearly meant that though appellant had acquired the knowledge of legal notice through her family members but had still chosen not to respond to the same and it amounted to be a deemed service of notice upon her.
11. Moreover, the law for an offence under Section 138 N.I.Act does not burden the complainant with the liability to ensure the service of legal demand notice upon the accused in all probabilities and what he is required under law, is to send the demand notice at the correct last known address of the accused.
12. In the present case in hand it is reflected that the respondent herein had send the demand notice at all the C.A.No: 440251/2016 Page 9 of 13 available addresses of the appellant as were available on record and mentioned in the memo of parties as well. Even if it is presumed that the appellant had not received the notice or was not having any knowledge about the same, then also she could have treated the notice issued by the Court as a notice and could have taken the relevant steps as were required to be taken on her part under law.
13. Now coming on to the last limb of the defence taken by the appellant before this Court as well as before the Trial Court regarding the signatures appearing on the cheque not being of her's. Admittedly, the signatures appearing on the cheque are in Hindi script mentioning the full name of appellant as "Geeta Rani", whereas, from the perusal of the account opening form Ex. DW1/A, it is reflected that the signatures thereon were appearing in English script. However, the account opening form itself is not a conclusive proof of actual signatures of the appellant for the purpose of maintaining the aforesaid account with the bank, as it is quite common practice, that generally people put their normal signatures on the account opening form but they slightly alter or sign entirely different in the specimen signature form so as to maintain secrecy and distinction between their two signatures so as to prevent misuse of their common signatures during their banking transactions. The specimen signature form available with the bank would have shown the actual signatures which were being used by the appellant for C.A.No: 440251/2016 Page 10 of 13 the purpose of maintaining that account but for the reasons best known to her, same were never called upon by her to be placed on record before the Trial Court.
14. So far as the reasons for dishonour of the cheque due to insufficiency of funds is concerned, it is a normal banking practice adopted through out the country that the bankers firstly check the funds available in the account maintained by a person and once funds are found to be sufficient, then only the other particulars such as the signatures as well as the amount in figures/ words and date of its issuance are tallied by the bankers. It was rightly observed by the ld. Trial Court that if the signatures of appellant were not those under which she was maintaining that account, then nothing had prevented the bankers to have cited the same as a reason for the dishonour of the cheque provided, there were sufficient funds in her account to honour the cheque. Moreover, no clarification or explanation was sought on behalf of the appellant from DW1 examined before the Trial Court related to the alleged difference in her signatures. Furthermore, there is no statutory requirement or presumption in respect of Negotiable Instruments Act, that it must, in all probabilities be filled entirely by the drawer or the author of the negotiable instrument. Hence, I do not find any infirmity in the observations made by the ld. Trial Court regarding validity of the cheque as well.
C.A.No: 440251/2016 Page 11 of 1315. In view of my aforesaid findings and observations, I have no hesitation in holding that the cheque in question not only belonged to the appellant, but also, it carried her signatures and got dishonoured due to insufficiency of funds in her account as per the statement of account produced before the Trial Court which is Ex. DW1/B and since the appellant also had the constructive knowledge of the notice served upon her, but despite that she had failed to make the payment of cheque amount within 15 days from the acquisition of the knowledge of the notice, then she was bound to face the consequences of having committed an offence under Section 138 of N.I.Act.
16. So far as the plea regarding presumption under Section 118(a) and 139 of N.I.Act raised by the appellant are concerned, I have no hesitation in holding that these presumptions have been provided/ carved out in the law and are relevant at the initial stages at the time of taking cognizance and the presumptions as such are not unrebuttable but they could very well be rebutted by the accused by taking a plausible defence and thereafter once the plausible defence has been set up by the accused, then, onus shifts upon the complainant to prove his case related to the consideration and discharge of legally enforceable debt or liability etc., to prove the same beyond reasonable doubt. However, merely by denying the authorship of cheque or saying that the same was obtained by the complainant by C.A.No: 440251/2016 Page 12 of 13 way of fraud, without even defining or explaining the nature and manner of fraud so committed, the appellant could not be presumed to have set up a probable defence because of which the onus would have shifted upon the respondent herein.
17. Therefore, I do not find any illegality or infirmity with the judgment or sentence passed against the appellant herein warranting the interference of this Court in exercise of its appellate powers and jurisdiction. Appeal as filed, is therefore, dismissed and appellant is taken into custody to serve the sentence. Copy of this judgment be given free of cost to the appellant. Appeal file be consigned to record room and the trial court record be sent back to the court concerned along with copy of this order for consignment. ANNOUNCED IN THE OPEN COURT DATED : 12.03.2021 (LOKESH KUMAR SHARMA) ADDL. SESSIONS JUDGE (SFTC) DWARKA COURTS : DELHI C.A.No: 440251/2016 Page 13 of 13