Delhi District Court
Ajay Kumar Bhalla S/O Late Sh. B.M. ... vs Smt. Jaswant Kaur W/O Sh. Surender Singh on 6 October, 2009
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
Cr.(A) No. 04/09
Date of Institution : 24.04.09
Date on which reserved for order : 22.08.09
Date of Order : 06.10.09
Ajay Kumar Bhalla S/o Late Sh. B.M. Bhalla,
R/o 42A, PocketE,
Dilshad Garden,
Delhi. .....Appellant.
Vs.
Smt. Jaswant Kaur W/o Sh. Surender Singh,
R/o 24A, PocketA, Dilshad Garden,
Delhi. .....Respondent.
J U D G E M E N T : Feeling aggrieved by order dated 14.03.07, passed by Sh. Naresh Kumar, ld, MM, in complaint case No. 3828/07, titled as Jaswant Kaur Vs. Ajay Kumar Bhalla, wherein appellant was convicted and sentenced to under go one and half year simple imprisonment and to pay a fine of Rs.5,000/ and to pay compensation of Rs.6 lac to the complainant/respondent, present appeal has been filed.
2. Brief facts giving rise to the filing of present appeal are that complainant Smt. Jaswant Kaur filed a complaint under section 138/142 of the Negotiable Instrument Act, 1881 against the appellant/accused interalia on allegations that she was carrying business of sewing clothes and embroidery work as her husband 2 and son both were handicapped, and there was no other member in her family. Appellant was residing in her neighbourhood for last many years. Appellant and his family members were having cordial relations with the respondentcomplainant, and used to take money from her and used to return the same in time. In the month of May, 2002, appellant demanded a sum of Rs.35,000/ as a loan for a period of one and half year for business purposes for his younger brother Sunil Kumar and assured the respondent complainant to return the same with interest @ 18% p.a. On the request and assurance of the appellant, complainantrespondent lent a sum of Rs.35,000/ to Sh. Sunil Kumar, who executed a pronote as well as a receipt in favour of the complainant respondent against receipt of loan amount. In the month of April, 2003, appellant and his brother Sunil Kumar again came to the complainantrespondent's house and requested for a loan of Rs.4,00,000/ for a period of six months for the purpose of taking agency of Usha Machine, on which complainantrespondent told them that they had not returned even a single penny of previous loan, either on account of interest or principal amount, and they were further making demand of such a heavy amount, which she cannot arrange. Appellant assured her that in case she would arrange that money, he would return the total amount of both loans 3 with interest @ 18 % p.a as early as possible and told that both the brothers were going to carry on the business of Usha Machines jointly, and in case complainantrespondent would not help them, they would suffer more loss in their business. Seeing the request and assurance of the appellant, complainantrespondent borrowed a sum of Rs.2 lac from her sister on interest and lent a sum of Rs.4 lac to the appellant and his brother Sunil Kumar, on 10.05.03. On receipt of said amount, appellant and his brother Sunil Kumar executed a pronote and receipt in favour of the complainant respondent on the same date. Upto July, 2003, appellant paid interest on Rs.4 lac, but did not pay the interest of previous loan amount. After July, 2003, appellant had also stopped paying the interest on the loan amount of Rs.4 lac to the complainant respondent, on which complainantrespondent approached the appellant and made demand of interest as well as principal amount. On said demand, appellant assured her that he would repay interest as well as principal amount, but he did not do so. After several visits and requests made by the complainant respondent, wife of the appellant, namely, Rekha Rani, issued a cheque dated 15.12.03 for a sum of Rs.30,000/ in the first week of December, 2003 on account of interest, in favour of the complainant, which was encashed. At the time of issuing cheque, 4 appellant Ajay Kumar Bhalla asked the complainantrespondent that he will arrange entire mount upto 20.12.03. On 21.12.03, complainant again visited the house of appellant and asked him to return the debts, but the complainantrespondent was shocked to see the furious attitude of the appellant as he rebuked in abusive language to her and told her that he would not pay any amount and she may go anywhere and do whatever she wants. After said threat, complainantrespondent gave a complaint to PS Seemapuri on 22.12.03. During the enquiry, appellant issued a cheque bearing No. 071128 dated 30.03.04 for a sum of Rs.4,35,000/, drawn on State Bank of India, Dilshad Garden, New Delhi, in favour of the complainantrespondent as refund of both loan amounts. Complainantrespondent presented said cheque on 05.04.04, in her bank, for encashment, but it was returned without payment with remarks "funds insufficient" by the bankers of the appellant. Thereafter, complainant sent a legal notice dated 12.04.04 to the appellant through registered letter, which was duly served upon him. Despite service of notice, appellant did not pay any response towards payment of the cheque amount. The appellant had kept insufficient funds in his account with the malafide intention to harass the complainantrespondent and not to honour the cheque, which is an offence under section 138 of the 5 Negotiable Instruments Act, 1881 read with section 420 IPC. Hence, it was prayed that cognizance be taken against the appellant and he be tried in accordance with law.
3. After taking cognizance of the offence, preliminary evidence was led by the complainantrespondent. Thereafter, vide order dated 05.06.04, appellant was summoned for offence under section 138 of the Negotiable Instruments Act. Notice under section 251 Cr.P.C was served upon him on 25.10.04. After notice, complainantrespondent examined himself as CW1, besides Sh. DCS Negi, Assistant Manager, State Bank of India, Dilshad Garden as CW2 and her sister Ms. Jagdish Kaur as CW3. After complainantrespondent's evidence, statement of appellant was recorded under section 313 Cr.P.C. In his evidence, appellant had examined Deep Shikha as DW1, himself as DW2 and Sh. Vipin Malhotra as DW3.
4. After hearing ld. Counsels for the parties, vide judgement dated 09.03.07, ld. Magistrate convicted the appellant for offence under section 138 of the Negotiable Instruments Act, and sentenced him, vide order dated 14.03.07, to undergo SI for one and half years and to pay a fine of Rs.5,000/. In default of payment of fine, appellant was to undergo SI for four and half months. He was also directed to pay a sum of Rs.6 lac towards 6 compensation to the complainantrespondent.
5. Feeling aggrieved by the said order, present appeal has been filed.
6. Notice of the appeal was given to the respondent, who had put in his appearance. Trial Court record was summoned.
7. I have heard Sh. Virag Aggarwal, Advocate, for the appellant and Sh. G.K. Tiwari, Advocate, for the respondent at length. Both parties have also submitted their written submissions, which I have also gone through. I have also perused the record carefully.
8. At the very outset, it may be mentioned that as per the case of the respondent, In May, 2002 she had given a loan of Rs.35,000/ to the appellant for a period of one and half years for business of his younger brother Sunil Kumar, and assured her to return the said loan amount with interest @ 18% p.a. At the time of giving this loan amount, a pronote Ex.CW1/A1 was executed by Sh. Sunil Kumar in her favour. Thereafter, on the request of appellant and his brother Sunil Kumar, again a sum of Rs. 4 lac was given as loan in the month of April, 2003, for which a pronote Ex.CW1/A2 was executed by the appellant and his brother Sunil Kumar. Factum of taking of loan of Rs.35,000/ from the respondent has not been disputed by the appellant. In fact, he has also not disputed the execution of pronotes. However, when he appeared 7 as DW2, he had taken the plea that his signatures were obtained on two blank pronotes. This plea, taken by the appellant, has seen the light of the day for first time, when he appeared as a witness. Same does not inspire any confidence, inasmuch as the complainantrespondent has referred to this transaction in her affidavit, execution of pronotes by the appellant, giving complete details. Absolutely no suggestion was given to her that no pronote was executed by the appellant or that his signatures were taken on blank papers. Rather in pursuance of the questions put to her, in her crossexamination, she deposed that when appellant signed the pronote, it was duly filled up. Onus to prove that appellant signed two blank pronotes was upon him and except for bare averments, same has not been proved. Moreover, it is not specified by him when these two pronotes were signed by him in blank, whether at the time when loan of RS.35,000/ was taken or subsequently. If it is to be taken that pronotes were signed in blank, when loan amount of Rs.35,000/ was taken, then at that time there was no occasion for the appellant to have signed the other pronote of Rs.4 lac, because loan amount of Rs.35,000/ was taken by his brother Sunil Kumar and perusal of the pronote Ex.CW1/A1 also goes to show that it was signed by Sunil Kumar only. If, it is to be taken that pronotes were signed subsequently, 8 then no details are being given. Under these circumstances, it is bare and bald plea taken by the appellant that his signatures were obtained on two blank pronotes and he has absolutely failed to prove the same. 76 (1998) DLT 892, Indian Bank Vs. M/s Cheese Wafers(India) Pvt. Ltd and ors was a case, where a plea was taken that signatures were obtained on blank documents. It was held that defendant did not raise even a whisper, after signing the letter of acknowledgement of liability and therefore now to contend that the documents signed by defendant were blank, which were subsequently filled up is only an afterthought to cover acknowledgement, which they have made in 1992. Why the defendant choose to keep silence about their signatures, having been obtained on blank documents. This plea was taken at the time of filing of the application for leave to defend not earlier at any stage. Therefore, it was held that plea now sought to be raised by the defendant to the effect that the signatures were obtained on blank documents is sham plea and devoid of any force. Similar view was taken in 1996 ISJ (Banking) 409, Shiv Manohar Vs. Canara Bank. Observation made in the aforesaid authorities applies with full force to the facts of the present case, inasmuch as, pronotes were executed in the year, 2003 and it was only for the first time in year 2005 that appellant had taken this plea of 9 obtaining his signatures on two blank pronotes. Why such grievance was not made by him at any earlier stage? There is nothing to show that he made any complaint to any of the authorities or even to the respondent that he has been made to sign two blank pronotes. Moreover, where is that second pronote, because pronote Ex.CW1/A1 was signed by his brother Sunil Kumar only. Moreover, this pronote was also signed by his brother Sunil Kumar. He was a material witness and he was cited as a witness in the list of witnesses filed by appellant, but for reasons best known to him, he did not examine him. As such adverse inference has to be drawn against the appellant that if he would have been examined, he would not have supported the case of appellant. Appellant's signatures appear only on pronote Ex.CW1/2. If this plea of appellant is accepted as correct, where is the second unsigned pronote? Under these circumstances, this plea of signatures on blank pronote is an afterthought and does not inspire any confidence. The result of the same is that it stands proved from the testimony of the complainantrespondent, coupled with documentary evidence, which is pronotes, that a sum of Rs.4 lac was given as loan by the complainantrespondent and in lieu of obtaining that loan, appellant signed the pronotes. In fact neither in the grounds of the appeal nor in the written statement to 10 execution of pronotes has been disputed by the appellant. Under these circumstances, appellant has failed to prove that he had signed blank pronote.
9. It is further the case of the complainantrespondent that despite repeated demands, the appellant neither paid money nor interest, and in fact he threatened her that she may do whatever, she likes. Then she made a complaint at PS Seemapuri and during the course of inquiry, appellant gave cheque of Rs.4.5 lac, which is Ex.CW1/A2. Signatures on the cheque is not denied by the appellant. However, his plea that cheque in question was got misplaced by him and he had lodged the NCR in this regard, which is Ex.DW2/1. ld. Counsel for the appellant referred to statement of the appellant, recorded under section 313 Cr.P.C, wherein he stated that cheque in question was got misplaced by him and he had lodged NCR in this regard. Thereafter, his testimony as DW2 was also referred, wherein appellant has deposed that his two cheques with electricity bills were got misplaced, along with his purse. He lost his purse on the way to company, namely, Usha at KG Marg, New Delhi. He gave information about misplacement of his cheques to his bankers SBI, Dilshad Garden, Delhi, in writing for stoppayment. Much emphasis was laid by the ld. Counsel for the appellant for submitting that complainantrespondent did not 11 dispute the factum of missing of his purse, which contained lost chequess, inasmuch as a positive suggestion was given thereby admitting the factum relating to lodging of FIR in respect of misplacement of cheques in question. Moreover, no suggestion was given to the appellant during the course of crossexamination that cheque in question was given by him to the complainant respondent against repayment of alleged loan or against some existing liability. This submission of ld. Counsel for the appellant is devoid of merits, inasmuch as the onus to prove this fact was upon the appellant, while appearing as DW2, in his examinationinchief he has deposed that his two cheques, along with electricity bills were got misplaced along with his purse. The purse was lost on the way to company, namely, Usha at K.G. Marg, New Delhi, and he lodged NCR to this effect, copy of which is Ex.DW2/1. However, perusal of contents of NCR goes to show that he was going to hospital from his house, via, East Park Road, and when he checked his purse at East Park Road, he found it missing. In his crossexamination, he deposed that he kept his purse in rear pocket of the pant on 20.11.03 and on the same day, he lodged NCR of the missing purse in PS Desh Bandhu Gupta Road. However, perusal of NCR Ex.DW2/1 goes to show that incident had occurred on 01.11.03, as in the column of date and time of 12 incident, date is mentioned as "01.11.03." However, the matter was reported on 20.11.03 and in the NCR, it was stated that on 01.11.03, he was going from his house to hospital via East Park Road. When he checked his pocket at East Park Road, then he found that his purse is missing. It contained the aforesaid articles. Under these circumstances, statement of the appellant and contents of NCR are quite contrary to each other, relating to place and date of missing of the purse, which contained cheques in question. Moreover, while according to appellant, purse was lost at K.G Marg, New Delhi, but the report was lodged at PS Desh Bandhu Gupta Road. In the grounds of appeal, for the first time a totally new plea has been taken by the appellant, stating that since parties were familiar and used to visit each other house, as such purse might have been left at the house of complainant respondent. This plea contradicts the plea taken by him during trial of the case and NCR. Keeping in view the fact that inconsistent stands are being taken by the appellant, regarding missing of the cheque, same has no legs to stand. More over, signatures on the cheque have not been denied by the appellant. It does not appeal to reasons that appellant will keep two blank signed cheques in his purse. Under these circumstances, keeping in view the fact that signatures on the cheques stands admitted by 13 the appellant, he has absolutely failed to furnish any explanation that this cheque was not given as a consideration for taking loan amount of Rs.4 lac. It was submitted by ld. Counsel for the appellant that ld. Trial Court committed an error in observing that there is no dispute about issuance of cheque, its presentation and dishonour. Moreover, section 118 of the Negotiable Instruments Act deals with presumptions as to negotiable instruments, and relevant part of said section is reproduced as under : "1 18. Presumptions as to negotiable instruments.-- Until the contrary is proved, the following presumptions shall be made: --
(a) of consideration -- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
.................................................................................................... .......................................................................................................... ..............................."
In view of this section, there is presumption that negotiable instrument was made or drawn for consideration and it was for the appellant to rebut its presumption, which he has failed to rebut.
10. It was further submitted by the ld. Counsel for the appellant 14 that cheque was never presented in bank for encashment, and for raising this submission, reference was made to statement of account Ex.CW2/B for contending that no cheque was ever presented for payment and for clearing on 05.04.03 or between the period from 24.11.03 to 23.05.04. Therefore, there is no question of said cheque remaining unpaid. Moreover, his case is that since cheque was missing, as such appellant had intimated the bank to stoppayment.
11. This submission is also devoid of any merit, inasmuch as the complainantrespondent had examined CW2 DCS Negi, Assistant Manager, SBI, who brought the summoned record, that is, statement of account of appellant having saving bank A/c No. 68204 for the period 30.03.04 to 06.04.04, which is Ex.CW2/A. He had also brought the statement of complainantrespondent, bearing A/c No. 55916 for the period 01.04.04 to 06.04.04, which is Ex.CW2/B. He further deposed that cheque was returned vide memo Ex.CW1/B on 05.04.04. He went on stating that he usually mention the deposited cheques on register. He further went on explaining the manner of entering of cheques by deposing that if the cheque is sent to another bank for encashment, then an entry is made in the register. But in the instant case, since both parties were having their accounts in the same bank, and after checking 15 the accounts, he returned the memos to the parties. Therefore, no entry regarding depositing the cheque was made. Much emphasis has been laid by the ld. Counsel for the appellant that witness did not produce cheque return register. No adverse inference can be drawn to nonproduction of cheque return register, inasmuch as this question had come in his crossexamination, and if he wanted he could have asked the witness to produce the relevant record. But that was not done. As per return memo Ex.CW1/B, the cheque was returned on account "insufficient funds".
12. As stated above, appellant had taken the plea that cheque was missing and therefore, he had informed the bank to stop payment. In order to prove this fact, he had examined DW3 Sh. Vipin Malhotra, Assistant, SBI, who has deposed that as per record, appellant Ajay Kumar Bhalla is having account No. 68204 in SBI, Dilshad Garden, which statement reflects the stop payment of cheque No. 071127 and 071128 dated 24.11.03, and a sum of Rs.50/ has been charged for stoppayment charges. He also proved attested copies of application for making stop payment, which is Ex.DW3/2. A close scrutiny of testimony of this witness goes to show that the same does not inspire any confidence, inasmuch as he admitted in his crossexamination that when summons were issued to the bank, he was deputed to appear in 16 the case. He admitted that Chief Manager, while authorizing him, had only mentioned "statement of account in the enclosure and "p hotocopy of stop payment application" were inserted by him himself, after the letter was signed and issued by the Chief Manager. This, itself, goes to show that he was not authorized by the Chief Manager to produce photocopy of stoppayment application, and precisely for this reason, no original application was produced before the Court and he brought only photocopy of letter allegedly given by Ajay Kumar Bhalla for stoppayment, which is Ex.DW3/2. Here, testimony of Ajay Kumar Bhalla is relevant, who has deposed that when he gave information about misplacement of cheques to his bankers in writing, he did not take any receiving and his bankers told him that same has been entered in the computer. However, in this photocopy, there is a stamp. No explanation is forthcoming as to where the original of this letter has gone. Further more, Sh. DCS Negi, Assistant Manager, has deposed that in case there is any request for stop payment of cheque, then in the return memo "insufficient funds" is not mentioned. If this letter had been placed on record of the bank, there would have been no occasion for the bank to have dishonoured or returned the cheque on account of "insufficient funds" and not on account of "stoppayment". Under these 17 circumstances, this plea, as taken by the appellant, does not inspire confidence.
13. It is further the case of the complainantrespondent that when cheque was dishonoured, then she sent a legal notice to the appellant by registered AD post. She proved legal notice as Ex.CW1/C, postal receipt as Ex.CW1/D and acknowledgement card as Ex.CW1/E. In his statement recorded, under section 313 Cr.P.C., appellant has merely stated that these are false documents. It was submitted by ld. Counsel for the appellant that no such notice receipt or acknowledgement card were put to the appellant, no suggestion was put to the appellant that any such notice was sent to appellant or duly received by him or that AD card bears his signatures. It was submitted that mere making of a document does not prove the document unless the same has been proved in accordance with law. This plea is absolutely devoid of any merit, inasmuch as it is settled principle of law that when a letter is sent on a correct address and has been put in post office, it is presumed that letter reaches its destination at the appropriate time, according to course of business, and was received by the person, to whom it was addressed. The presumption has to be drawn under illustration "b" of section 114 of the Evidence Act that "r egular course of business has been followed." Onus 18 thereafter shifted upon the drawee to rebut the presumption that communication was distracted in any manner."
In Alka Toraskar v Vaishya Urban Coop Society, 2007 Cr.L.J. 858 (Bom.), it was held that where not only the notice was addressed to the correct address of the accused but was also returned as received by the accused and the accused herself had chosen not to step into the witness box to rebut the presumption which was available to the complainant by virtue of section 27 of the General Clauses Act, 1897, it was held that the statutory presumption was clearly in favour of the complainant that the accused had received the said notice, which presumption the accused had failed to rebut and therefore, the conclusion that the notice was received by the accused, could not be faulted. To the same effect to the law laid down in Prasanta Kumar Basu v Narender Kumar, 2007 Cr.L.J. 1026 (Cal.). In Dalmia Cement Ltd v Galaxy Traders & Agencies Ltd, (2001) Cri.L.J. 972 (SC), it was observed by the hon' ble Supreme Court that efforts to defeat the objective of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country. The laws relating to the Act, therefore, requires to be interpreted in the light of the 19 object intended to be achieved by it despite there being deviation in the general law and procedure provided for the redressal of the grievances of the litigants.
14. Further in Bhaskaran (K) v Sankaran Vaidhyan Balan, (1999) Cr.L.J. 4606 (SC), it was observed by hon' ble Supreme Court that though the presumption under section 27 of the General Clauses Act, 1897 is a rebuttable presumption but the said presumption cannot be rebutted by an accused only by denying the receipt of the notice in the statement under section 313 of the Code of Criminal Procedure. Certainly, something more than that is required to be done on the part of the accused to rebut the said presumption. The Court observed that it also cannot be ruled out that a cunning accused may just scribble something on the AD card and not his real signature with a view to take a plea that such a notice was not received by the accused.
15. In view of these authoritative pronouncements, once the appellant had proved that notice was sent by registered post on the correct address and acknowledgement card is also returned back, it was incumbent upon the appellant to have rebutted that presumption. In fact, except for mentioning that these documents are false in his statement, under section 313 Cr.P.C., when he himself appeared in the witness box, his testimony was 20 conspicuously silent in this regard. He nowhere deposed that legal notice was not received by him. Under these circumstances, submissions of ld. Counsel for the appellant that no suggestion was given by the ld. Counsel for the complainantrespondent that legal notice was sent to him or that it was served upon him does not arise, once appellant himself does not controvert this fact in his testimony. The result of the same is that it stand proved that after dishonour of the cheque, complainantrespondent sent a legal notice upon the appellant, which was duly served upon him.
16. It is pertinent to note that despite service of this notice, appellant failed to give any reply. In 1980 RLR 44, Kalu Ram Vs. Sita Ram, it was held that when serious allegations are made in the complaint and defendant failed to send any reply, then the allegations are deemed to have been admitted. In view of this authoritative pronouncement, it becomes clear that since the appellant failed to give any reply to the legal notice, a presumption has to be drawn that he did not have any defence and he did not rebut the case of complainantrespondent that he had taken a loan of Rs.4 lac from him and in execution thereof, he issued a pronote and gave a cheque of Rs.4.35 lac, which was ultimately dishonoured.
17. It was further submitted by ld. Counsel for the appellant that 21 entire case of the complainantrespondent of giving alleged loan of Rs.4 lac to the appellant is false and full of contradictions, inasmuch as although it was alleged in the complaint by the complainantrespondent that she is carrying on business of sewing clothes and embroidery work at her house for her livelihood as her husband and son are handicapped. However, her own daughter is a practising lawyer. Moreover, it was alleged that the sum of Rs.35,000/ was given as loan in the month of May, 2002 for a period of one and half years. However, it was further alleged that when in the month of April, 2003, appellant and his brother approached her for taking further loan of Rs.4 lac. She asked them as to why they had not returned single penny of the previous loan. It was submitted that loan amount of Rs.35,000/ was required to be paid on or before 31.10.03, as such there was no occasion for the complainant to ask such question from appellant in April, 2003. Further more, according to the complainantrespondent, she had borrowed a sum of Rs. 2 lac from her sister on interest. However, in the complaint, she did not disclose the name of her alleged sister nor mode of obtaining alleged loan of Rs. 2 lac nor rate of interest. Further more, while appearing as witness, she testified that she did not pay interest to anybody. She also contradicted her story of taking Rs.2 lac from her sister on 10.05.03 by deposing 22 that this amount of Rs. 2 lac was taken by her from her sister on 06.10.03. It was submitted that how a person could have paid a sum of Rs. 2 lac on 10.05.03, who herself received the amount on 06.10.03. As such, it was submitted that case of the complainant respondent is full of contradictions.
18. Rebutting the contentions, it was submitted by ld. Counsel for the respondentcomplainant that there was no occasion for the complainant to have mentioned about factum of her daughter being an advocate, inasmuch as the complaint was filed in the year, 2004 and her daughter Sarabjeet Kaur was enrolled as an advocate, vide Enrollment No. D1750 on 04.10.06. As such, her daughter had come in practice much thereafter. There is substantial force in the submissions of ld. Counsel for the complainant, inasmuch as if daughter of complainantrespondent had joined practice much after filing of complaint, i.e. in the year 2006, and there was no occasion for her to have mentioned about this fact in the complaint.
19. As regard the submissions that there was no occasion for the complainant to have mentioned about nonpayment of principal amount or interest of Rs.35,000/, which was given only to the brother of the appellant, it may be mentioned that as per pronote the amount was to be repaid on or before October, 2003.
23 Therefore, if the complainantrespondent reminded the appellant or his brother regarding nonpayment of any amount, either towards interest or principal amount, when they again approached her for lending Rs. 4 lac, there is nothing wrong about it. The discrepancy regarding the date of taking Rs. 2 lac from her sister has appeared. However, in this regard, it was submitted by ld. Counsel for the appellant that this was typographical mistake for which the appellant wants to take benefit. It was submitted that during the course of crossexamination, the defence counsel had put two questions simultaneously from the complainant, that is, when she had taken Rs. 2 lac from her sister and when she had given loan to the appellant. On this, the complainantrespondent answered that she had taken Rs.2 lac on 06.05.03 from her sister and gave loan to the appellant on 10.05.06. Due to typing mistake, both days, that is 6th or 10th were written on single date. Otherwise, there was no suggestion to the complainant respondent that she had not given any loan to the appellant. The appellant cannot get much benefit from this discrepancy, keeping in view the fact that overwhelming evidence has come on record in this regard. The case of the complainantrespondent regarding giving of loan of Rs.4 lac to the appellant stand proved from her own testimony and even execution of pronote is not denied by the 24 appellant. He had only taken the plea that he had signed blank pronote, which he had also failed to substantiate. He also admits his signatures on cheque. He has failed to prove that it was blank cheque, when it was signed by him. Further more, when he was given an opportunity to rebut the case of complainant, when legal notice was served upon him, he failed to submit any reply. Meaning thereby, that he did not controverted her allegations. Therefore, if certain discrepancy has appeared regarding the manner of arranging the loan amount of Rs. 4 lac by the complainant, which was given to the appellant, same is of no consequence. Therefore, the fact whether complainant paid any interest to her sister or not or whether that amount was returned to her within two or three months is of no consequence.
20. In fact the appellant himself has been taking contrary and contradictory pleas, inasmuch as in his statement recorded under section 313 Cr.P.C., he took the stand that a sum of Rs.35,000/ was taken as loan from complainantrespondent and Rs.30,000/ was returned through cheque of his wife and there was only dispute of Rs.5,000/ only. However, it was suggested to the complainantrespondent that he had taken loan of Rs.30,000/ only, which was returned through cheque of his wife.
21. The appellant has also taken a plea of alibi on the ground that 25 on 10.05.03, he was not in Delhi and had gone to Gola Gokaran District Lakhimpurkhiri, U.P to attend marriage of his sister. In order to substantiate this plea, he had examined DW1 Smt. Deep Shikha, who testified that her marriage was solemnized on 09.05.03 with Sunil Kumar. Appellant Ajay Kumar Bhalla is her uncle (mausa) in relation and he came to attend the marriage ceremony along with his mother on 09.05.03 and remained there till 12.05.03. She proved her marriage card as Ex.DW1/1 and photographs of marriage as Ex.DW1/2 to Ex.DW1/4. The genuineness of these documents were challenged by the complainantrespondent on the ground that invitation card does not contain any postal stamp to prove that it was sent from Lakhimpurkhiri, U.P to the appellant. Moreover, receipt of photographs for taking at the particular date was not produced, nor negatives of the photographs have been produced nor photographs bear any particular date. As such, it was submitted that documents have been prepared in order to create false evidence in this case. In fact, the appellant was in Delhi on 10.05.03, when he took loan amount and executed pronote in question. Without going into genuineness of the marriage card or photographs, it is the case of the appellant himself that marriage of his niece took place on 09.05.03. Except for oral testimony of 26 Deep Shikha that appellant was at Gola Gokaran, Distt. Lakhimpurkhiri, U.P., there is no other documentary evidence to prove this fact. It may be possible that appellant might have gone to attend marriage, which was on 09.05.03 and returned back on 10.05.03. The oral testimony of Ms. Deep Shikha in this regard cannot be relied upon keeping in view that she is closely related to the appellant and appellant himself has not substantiated this plea by his remaining in Lakhimpurkhiri till 12.05.03 by documentary evidence. As such, plea of alibi taken by the appellant is not proved.
22. It was further submitted by the ld. Counsel for the appellant that on 18.07.07, out of Court, full and final settlement was arrived at between the parties to the present case. In that settlement, the complainantrespondent had accepted a sum of Rs.49,227.50/ in cash, along with two cheques of Rs.2.5 lac each, bearing No. 667229 dated 10.08.07 and bearing No. 667230 dated 17.08.07 from the appellant. The present proceedings are continuation of the original complaint and thus, acceptance of cash amount and cheques towards the liability, if any of the appellant, during the pendency of the present proceedings amounts to compounding the offence resulting in acquittal of the appellant. Reliance was place on Venkatesh Dutt Vs. M/s MS Shoes East Ltd., 109 (2004) DLT 27 480, in support of this contention that two parallel proceedings cannot be allowed to be continued.
23. Rebutting the contention of the ld. Counsel for the appellant, it was submitted by the ld. Counsel for the complainantrespondent that authority relied upon by ld. Counsel for the appellant is not applicable in the present case, inasmuch as in that case compromise was arrived at during pendency of the case and on the basis of said agreement, case was disposed of and appellant was acquitted. Later on, the cheque given under compromise was dishonoured and aggrieved party filed application for reopening the main complaint and under those circumstances, it was held that the application is not maintainable. It was submitted that in the instant case, neither the compromise took place between parties, during pendency of the complaint nor any agreement in respect of compromise was prepared between parties. Neither the appellant has been acquitted of offence under section 138 of the Negotiable Instruments Act, as such authority is not applicable. It was submitted that appellant is very cunning and clever person, who misguided the bailiff at the time of attachment proceeding in execution of civil case dated 18.07.07 by giving an amount of Rs.49,227.50/ and two cheques of Rs.2.5lac each towards the decreetal amount, on which bailiff asked decree holder to write 28 acceptance of the same, on which decree holder accepted the said amount and cheques on the conditions that if cheques are honoured then she will not claim for the decreetal amount. However, the cheques were ultimately dishonoured and the complainantrespondent was constrained to file fresh civil suit. Reliance was placed on 2001 (1) RCR (Criminal) Page 783 and 2001 Cr.L.J 708 in support of the submissions.
24. I have carefully gone through the authorities relied upon by the ld. Counsel for the parties. With due respect, the authority Venkatesh Dutt (supra) relied by the ld. Counsel for the appellant does not help him, inasmuch as in that case, complaint under section 138 of the Negotiable Instruments Act was filed and during pendency of the complaint, parties entered into compromise. Therefore, it was held by the hon' ble High Court that cause of action, pertaining to the initial cheques ceases to be available to the complainant and if cheques were dishonoured, then fresh cause of action becomes available in respect of cheques issued pursuant to the agreement between the parties. Things are substantially different in the instant case, inasmuch as, during pendency of the complaint case, no compromise has been arrived at between the parties. In fact, the complainantrespondent had also filed a civil suit for recovery of amount and in execution 29 proceedings when bailiff had gone for attachment warrants of the property of appellant, at that time appellant gave a sum of Rs.49,227.50/ in cash and two cheques of Rs.2.5lac each. In those proceedings, the complainantrespondent had accepted the amount of Rs.49,227.50/ and cheques subjected to condition that, if they are honoured, then she will not claim any amount in that civil suit. Thereafter, both these cheques were also dishonoured for which the complainantrespondent was constrained to seek civil remedy. Therefore, this authority does not help the appellant in any manner. On the other hand, in N.K. Gupta Vs. Vijay Kumar Madan, 2001 (1) RCR (Criminal) 783, it was held by Punjab & Haryana High Court that remedy under section 138 of the Negotiable Instruments Act and civil suit are separate remedy, if civil suit is filed claiming amount and the same is decreed in favour of the drawee, even then there is no ground to close criminal proceedings, which have to continue to its logical end. Hon' ble Supreme Court in Rajneesh Aggarwal Vs. Amit J. Bhalla, 2001 Cri.L.J. 708, held that once the offence of dishonour of cheque is committed, any payment made subsequent thereto will not absolve the accused drawer of the liability of criminal offence, though in the matter of awarding sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal 30 proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of deposit of money in the Court. In view of these authoritative pronouncements, the mere fact that appellant gave two cheques in execution of civil decree, which were ultimately dishonoured, does not tantamount to parallel proceedings which warranted quashing of the present complaint. Rather these facts fortify the claim of complainantrespondent that appellant was liable to pay a sum of Rs.4.5 lac towards the cheque amount. If defence of the appellant is assumed to be correct that he had not obtained loan amount, did not execute any pronote, then where was the necessity to give these cheques to complainant respondent in execution of civil decree, rather the issuance of these cheques in execution of civil decree, substantiated the case of complainantrespondent. It also reflects the conduct of the appellant that despite the fact that he had taken loan of Rs.4 lac in the year, 2003. He had the audacity to deny the same by denying execution of any pronote or cheques. In fact he has no intention to repay the same till date, inasmuch as his conduct reflects that cheques were given by him in order to avoid attachment warrants proceedings, but in fact he had no intention to repay the same.
31 Otherwise, same would not have been dishonoured.
25. In view of aforesaid discussions, as regards order dated 09.03.07 vide which appellant was convicted for offence under section 138 of the Negotiable Instruments Act does not suffer from any infirmity, which calls for interference.
26. As regards the quantum of sentence, vide order dated 14.03.07, appellant was sentenced to undergo SI for a period of one and half years and to pay a fine of Rs.5,000/. In default of payment of fine, he was to undergo SI for four and half months. He was further directed to pay compensation of Rs.6 lac to the complainant as the cheque in question was of Rs.4.35 lac. Assailing this part of the order, it was submitted by ld. Counsel for the appellant that while awarding substantive sentence of imprisonment and fine, Court could not have awarded compensation under section 357 Cr.P.C. It was submitted that question of awarding compensation would arise only where the Court imposes a sentence of which fine does not form a part. For raising this contention, reliance was placed on (2002) 6 SCC 663 and Swaran Singh and Ors. Vs. State of Punjab, AIR 1978 SC 1525. He also relied upon : (1) 2006 Cr.L.J. 3866, Anirudhan Vs. Philip Jacob & ors, where accused was sentenced to imprisonment till rising of the Court and 32 compensation of Rs.60,000/.
(2) 2001 Cr.L.J. 2008, Jonndula Malli Karjuna Rao Vs. Dodda Venkata Subbareddy & Anr., where it was observed that powers of a Magistrate in awarding fine as part of sentence is restricted to Rs.5,000/ under section 29(2) Cr.P.C.
27. On the other hand, ld. Counsel for the complainantrespondent relied upon 2002 Cr.L.J. 1003, Suganthi Suresh Kumar Vs. Jagdeeshan, for contending that order for payment of compensation can be enforced by imposing sentence in default. Section 138 of the Negotiable Instruments Act, 1881 provides as under : "1 38. Dishonour of cheque for insufficient, etc., of funds in the account. --W here any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished 33 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."
28. Section 357 of the Code of Criminal Procedure, 1978 deals with compensation, and relevant portion of the said section is reproduced as under : "3 57. Order to pay compensation. -- (1). (2) * * * (3) When a court imposes a sentence of which fine does not form a part, the Court may, when passing judgement, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced."
In both authorities, relied upon by ld. Counsel for the appellant, it was observed by hon' ble Supreme Court that reading of sub section (3) of section 357 would show that question of awarding compensation would arise, where the Court imposes a sentence of which fine does not form a part.
29. In Suganthi Suresh Kumar (supra), a complaint under section 138 of the Negotiable Instruments Act was filed. The loan covered by dishonour cheque was over Rs.4 lac. Accused did not pay amount during pendency of trial, revision or appeal before the 34 hon' ble Supreme Court. He was awarded punishment of imprisonment till rising of the Court and fine of Rs.5,000/. It was observed by hon' ble Apex court that no drawer of the cheque can be allowed to take dishonour of the cheque, issued by him, light heartedly. The very object of enactment of provisions like 138 Negotiable Instruments Act, 1881 stands defeated, if sentence is of the nature passed by the ld. Magistrate. In that case, it had come that civil suit was filed subsequently by the complainant, for which properties of the respondent was attached. Even under those circumstances, it was observed by hon' ble Supreme Court that that was not the ground for lessening gravity of the offence or impose minor sentence, chosen by the Trial Court. Such sentence was termed as "flee bite" sentence.
30. Substantially similar sentence, as awarded in the present case, was awarded in Pankaj Bhai Naqji Bhai Patel Vs. State of Gujrat, 2001 (I) RCR (Criminal) 343. In that case, accused was sentenced to six month imprisonment and directed to pay a fine of Rs.83,000/. The question for consideration before the hon'bl e Supreme Court was whether a judicial Magistrate of first class could have imposed a fine beyond Rs.5,000/, in view of the limitation contained in section 29 (2) of the Code of Criminal Procedure. After taking note of provisions contained in section 357 35 of the Code, it was observed that whenever a Magistrate feels that the complainant should be compensated, he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in section 357 of the Code. While retaining the sentence of imprisonment of six months, the fine portion was deleted from the sentence and appellant was directed to pay compensation of Rs.83,000/ to the respondent complainant. Following this judgement, in the instant case also, while retaining imprisonment to one and half years, and compensation of Rs.6 lac, the portion of fine is deleted from the sentence. The authorities relied upon by the ld. Counsel for the appellant do not help him, inasmuch as conduct of the appellant disentitle him to any leniency, inasmuch as an amount of Rs.4 lac was given in the year, 2003, but till date that amount has not been returned. Rather complainant has been forced to indulge in litigation after litigation for no fault of hers. Even as regards quantum of compensation, section 138 of Negotiable Instruments Act itself authorizes the Magistrate to award double the amount of cheque amount, whereas the ld. Magistrate has taken a liberal approach by awarding compensation of Rs.6 lac for cheque of Rs.4.35 lac, which is much less than the double amount.
31. In view of the discussions made above, order dated 09.03.07, 36 vide which appellant was held guilty and convicted for offence under section 138 of the Negotiable Instruments Act is upheld and appeal qua this order is dismissed. As regards order dated 14.03.07, vide which appellant was sentenced to undergo simple imprisonment for one and half years and to pay a fine of Rs.5,000/ and to pay compensation of Rs.6 lac to the complainant/respondent, same is modified to the extent that sentence of imprisonment of one and half years and compensation of Rs.6 lac is retained and portion of fine is deleted. The said amount shall be deposited with the Trial Court within two months, failing which the Trial Court shall resort to the steps permitted by law to realise it from the appellant. The appeal stands disposed of accordingly. Trial Court record be sent back, along with a copy of this order. Appeal file be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 6th day of October, 2009. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.