Delhi District Court
Vijender @ Bijender vs (1)Sh. Subhash Chand on 23 April, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI
Crl. Appeal No.24/2010
Unique Case ID No.02402R0211502010
Vijender @ Bijender
H.No. 2, Sangli Mess, Bhagwan Dass
Road, Mandi House, New Delhi. ... Appellant
VERSUS
(1)Sh. Subhash Chand
S/o Late Sh. Ganga Ram
R/o C50, Chander Nagar West,
Gali No.3, Delhi51.
(2)The State ... Respondents
Date of Institution : 29.07.2010
Date of reserving the order : 07.04.2011
Date of pronouncement : 23.04.2010
O R D E R
Present appeal has been directed against the impugned judgment of conviction dated 11.06.2010 and order on sentence dated 30.6.2010 passed by the Ld. ACMM, Karkardooma C.A. No.24/10 Vijender vs Subhash Chand Page 1 of 8 Courts, Delhi against the appellantherein. Appellant/accused has been convicted under section 138 of Negotiable Instrument Act and he has been sentenced to undergo simple imprisonment for a period of six months with fine of Rs.2,000/. In default of payment of fine, appellant shall further undergo SI for two months. Appellant/ accused was also directed to pay Rs.80,000/ to the respondent No.1/ complainant as compensation.
2 The trial court record has been called. I have heard arguments of counsels for the parties. I have gone through the entire material available on the record.
3 The facts giving rise to filing of the present appeal are that the complainant (respondent No.1herein) filed a criminal complaint before the Ld. A.C.M.M. under section 138 of Negotiable Instruments Act (hereinafter shall be referred to as N.I. Act). It was alleged in the complaint that the appellant/accused borrowed a sum of Rs.70,000/ from the complainant as friendly loan on 7.3.2005 and executed a promissory note in favour of the complainant. In discharge of his liability, accused issued a cheque No.788863 dated 3.12.2005 amounting to Rs.70,000/ in favour of the complainant C.A. No.24/10 Vijender vs Subhash Chand Page 2 of 8 which on presentation was dishonoured on account of "insufficient funds". A legal notice dated 12.12.2005 was sent to the accused/ appellant but despite receipt thereof he failed to make payment. 4 Notice U/s 251 Cr.P.C. was served upon the appellant/accused to which he pleaded not guilty and claimed trial. Thereafter, parties led their evidence. Ld. Trial Court delivered the impugned judgment of conviction followed by order on sentence. 5 Feeling aggrieved with the impugned judgment of conviction and order on sentence, present appeal has been preferred by the accused/appellant on the grounds that the application under section 340 Cr.P.C. was kept pending till passing of impugned judgment. The wife of respondent No.1 advanced loan of Rs. 10,000/ which was repaid by the appellant in monthly installments of Rs. 1200/. There is no documentary evidence of making payment of Rs. 70,000/ to the appellant. The cheque and pronote have been filled and fabricated by the respondent No.1 and his wife. Wife of respondent No.1/complainant intentionally made false statement before the Trial Court. There was no liability of the appellant to make payment of the cheque amount.
C.A. No.24/10 Vijender vs Subhash Chand Page 3 of 8 6 The controversy involved in the present case is that the cheque Ex.CW1/A issued by the appellant/accused got dishonoured on presentation by respondent No.1/complainant. Case of the respondent No.1/complainant was that the said cheque was for Rs.70,000/ which was given by the appellant/accused to discharge his liability of availing loan of Rs.70,000/. It is also case of the respondent No.1/complainant that at the time of taking loan, appellant /accused executed a promissory note Ex.CW1/F. When appellant/ accused failed to repay the loan, cheque Ex.CW1/A was presented which got dishonoured vide memo Ex.CW1/B. 7 On the other hand, case of the appellant/accused is that he took loan of Rs.10,000/ and not of Rs.70,000/ for which he gave 10 blank cheques to respondent No.1/complainant. It is also case of appellant/accused that he repaid the loan of Rs.10,000/ by way of 10 installments of Rs.1200/ each. The wife of respondent No.1/complainant got signed pronote and blank cheque from the appellant/accused as security. But after repayment of loan, cheque as well as pronote were not returned and were used by filling in the same with malafide intention.
C.A. No.24/10 Vijender vs Subhash Chand Page 4 of 8 8 The onus to prove the issuance of cheque was on the respondent No.1/complainant. To prove its case, he examined himself as CW1 and proved the cheque as Ex.CW1/A, cheque return memo as Ex.CW1/B, notice as Ex.CW1/C, postal receipts as Ex.CW1/D and E and promissory note as Ex.CW1/F. The appellant/ accused also led his evidence by examining the wife of respondent No.1/complainant as DW1.
9 By leading his evidence, respondent No.1/ complainant has duly established that cheque in question was issued by the appellant/accused in discharge of his liability. On the other hand, it is argued by the Ld. Counsel for the appellant/accused that the loan was taken of Rs.10,000/ and not of Rs.70,000/. From the evidence led, the complainant/respondent no.1 has successfully established that the loan was advanced of Rs.70,000/, but the appellant/accused failed to establish his defence that the loan amount was Rs.10,000/ and he repaid the same. The only witness examined by the appellant/accused was the wife of respondent No.1/ complainant who had not supported the defence of the appellant/ accused that a loan of Rs. 10,000/ was given to him and that same C.A. No.24/10 Vijender vs Subhash Chand Page 5 of 8 was repaid. The complainant in the form of his ocular as well as documentary evidence has duly established that loan of Rs.70,000/ was advanced to the appellant. No evidence was produced by the appellant/accused to substantiate his defence. 10 It was also case of appellant/accused that the blanks in cheque and promissory note were filled in by respondent No.1/complainant but he did not lead any evidence to substantial his defence, what to say to get them examined from any Handwriting Expert. On the other hand, Respondent no.1/complainant has duly established that the cheque in question and the promissory note were filled and signed by the appellant/accused at the time of taking the loan. He has also established that the said cheque got dishonoured when it was presented for encashment. In the absence of expert's opinion, it can not be said with certainty that any forgery on the cheque and promissory note was made by respondent No.1/ complainant. Appellant/accused was having ample opportunity to prove his defence on this aspect but he had not produced evidence to substantiate his defence that the forgery on the cheque and promissory note was made by the complainant.
11 It is not in dispute that the cheque in question C.A. No.24/10 Vijender vs Subhash Chand Page 6 of 8 Ex.CW1/A and promissory note Ex.CW1/F bears the signatures of the appellant/accused. It is case of the appellant/accused himself that he signed the cheque Ex.CW1/A as well as promissory note Ex.CW1/F at the time of taking loan from respondent No.1/complainant. Factum of taking loan is also not disputed by the appellant/accused. The only dispute is with regard to amount of loan and its repayment and which is also defence of the appellant/accused. But he failed to probabilise his defence. There is no documentary evidence to establish that the amount due toward the cheque was paid by appellant/accused to the complainant. From no stretch of imagination, it can be inferred that if money is taken as loan against the documents, the same would be paid without any receipt/document. It is contrary to the legal position as well as factual position.
12 So far as ground taken by the appellant with regard to application under section 340 Cr.P.C. against respondent No.1/complainant and his wife is concerned, there is no basis in the same. In the said application, it was mentioned that a false complaint against appellant was filed on the basis of forged cheque and pronote and made false statements in the court. Pendency of application under Section 340 Cr.P.C. is of no consequence, particularly when the C.A. No.24/10 Vijender vs Subhash Chand Page 7 of 8 appellant/accused was convicted by the Ld. Trial court on the basis of documents i.e. cheque and promissory note.
13 In view of aforesaid reasons, I do not find any illegality, irregularity or impropriety in the impugned judgment of conviction and order on sentence. Appellant/accused has failed to make out any ground in support of his appeal. Consequently, the appeal is dismissed. As a result, judgment of conviction and order of sentence are hereby upheld.
14 Appellant/accused is on bail. Since the appeal has been dismissed, he be taken into custody to serve the sentence awarded to him by Ld. Trial Court. A copy of order be supplied to the appellant free of cost. Copy of the order along with trial court record be sent to the concerned trial court.
Appeal file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 23.04.2011 District Judge (East)
Addl. Sessions Judge
Karkardooma Courts : Delhi
C.A. No.24/10 Vijender vs Subhash Chand Page 8 of 8