Delhi District Court
Sudhir Goel vs Mukesh Chand on 29 September, 2018
IN THE COURT OF SH. VIMAL KUMAR YADAV, SPECIAL JUDGE
CBI, (P.C. ACT)08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Sudhir Goel
S/o. B.D. Goel
R/o. 2624, Hudson Lines,
Kingsway Camp, Mukherjee Nagar,
Delhi
......Appellant
Versus
Mukesh Chand
S/o. Sh. Jetha Nand
R/o. C17, Mahendru Enclave,
G.T. Road, Delhi
......Respondent
Crl. Appeal No. : 311/2018
CNR No. : DLCT010109512018
Date of institution : 24.08.2018
Date of reserving order : 26.09.2018
Date of pronouncement : 29.09.2018
J U D G M E N T
1. The instant appeal has been preferred by the appellant challenging the impugned judgment dated 28.05.2018 and order on sentence dated 26.07.2018 passed by the Ld. Trial Court which is hereby disposed off through this judgment.
2. The prime challenge the impugned judgment is on the ground that the respondent/complainant has not been able to show the resource and means to advance an amount of Rs.5,00,000/ as loan, nor does he was able to spell out the particulars of the loan as to when it was given, where the cheque was handed over to him by the appellant, whether the promissory note contained interest clause C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 1 of 8 or not and so and so forth. In the absence of any record with regard to the availability of the amount with the respondent in the form of Income Tax Returns, the bank Passbook and for that matter any other document, showing that the respondent is doing any business of steel utensils, as claimed by him, or for that matter any other work from which he was able to earn so much of amount which had placed him financially comfortable so as to enable him to advance the sum of Rs.5,00,000/ to the appellant.
3. Additionally, it is contended that the falsehood of the case of the complainant/respondent surface very distinctly in view of the fact that, according to him, the loan was advanced in the year 2009 and interest was paid up to November, 2009. Cheque in question was whereas issued in July, 2010, but despite the said fact, the amount of interest is missing as in normal course of events, whatever was outstanding there on the date of issuance of cheque would have definitely figured in the cheque amount and the cheque would have been issued for the composite amount of principal and interest. With these contentions, it is asserted on behalf of the appellant that the appellant is able to raise a probable defence that the cheque was issued in the year 2002 that too as a security in respect of a loan of Rs.5,00,000/ taken by the appellant, which has been cleared by him, therefore no legally recoverable debt was there in respect of which the cheque was issued. The Bank Account in question was already closed by the appellant in the year 2009, therefore there was no occasion with the appellant to issue a cheque of a closed account in the year 2010. These facts substantiate the claim of the appellant that the cheque was given as a security in the year 2002 qua which the payment was already made by the appellant and the issue stands closed.
C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 2 of 8
4. It is further submitted that the address furnished in the promissory note which, according to the appellant, is a false and fabricated document and does not bear his signatures, has the incorrect address as he had shifted from the address mentioned in the promissory note in the year 2006 itself which again gives a reason to disbelieve the case of the respondent that a promissory note issued in the year 2009 when the loan was purportedly advanced by the respondent to the appellant would contain the incorrect address.
5. To strengthen his arguments, Counsel for appellant placed reliance on Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki & Anr. 2009 Cri. L.J. 3777, Vipul Kumar Gupta Vs. Vipin Gupta 2012 V AD (Cri.) (DHC) 189, K. Subramani Vs. K. Damodara Naidu (2015) 1 Supreme Court Cases 99 and John K. Abraham Vs. Simon C. Abraham & Anr. 2013 Law Suit (SC) 1108.
6. The respondent, on the other hand, contended that the issues raised by the appellant have all been dealt with by the Ld. Trial Court in the impugned judgment and in view of the legal position as on date, the existence of the cheque, on which signatures has not been disputed by the appellant, gives strength to the fact that the cheque was issued in discharge of a liability. That contention that the loan was taken in the year 2002 was repaid by the appellant remains an unsubstantiated claim as no document worth name has been produced by the appellant and for that matter has not even cared to examine himself or any other witness.
7. The contention of the appellant has been countered by the respondent that instead of seeking ITR returns and bank passbooks, the appellant should have shown from his records that the amount was repaid by him even as per his claim of loan of 2002.
C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 3 of 8 Therefore, when the respondent had established that a cheque under the signatures of the appellant was given to him, the same was presented which got dishonoured and the statutory legal notice was sent and served on the correct address of the appellant and despite that the appellant did not opt to clear the dues nor die he care to reply to the notice, therefore respondent has been able to show that a case under section 138 of Negotiable Instruments Act is made out and the same has been held by the Ld. Trial Court through the impugned judgment which is in consonance with the facts of the case and the law on the subject. With these contentions, it is submitted that the impugned judgment and order on sentence does not suffer from any illegality, infirmity or impropriety, therefore does not require any interference. Counsel for respondent relied upon the judgment K. Prakashan Vs. P.K. Surenderran, Supreme Court Cases (2008) 1 SCC 258.
8. I have considered the submissions and perused the record as well.
9. At the outset it is noted that both the sides are not truthful. Both are resorting to incorrect narration. Thus, the credentials of both are questionable. Nevertheless, the focal point of arguments of the Counsel for the appellant that the respondent has either no means to advance that much of money or that he is unable to show/establish his financial capability. It has come in the deposition that is cross examination that the appellant used to borrow money from the father of the respondent. Such borrowings, it seems were not isolated but on a number of occasions, and it seems that the complainant/respondent has stepped into the shoes of his father so far as borrowing by the appellant is concerned. And in any case, the prime object of section 138 of the Negotiable Instruments Act was to C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 4 of 8 bring sanctity to the transactions involving negotiable instruments and therefore keeping in view that object and purpose of the enactment, the circumstances are to be appreciated. The appellant has not controverted this fact that he had either not borrowed money from the father of the respondent and for that matter no from the respondent himself. He has himself admitted that he had borrowed a sum of Rs.5,00,000/ from the respondent in the year 2002. This in itself is sufficient to show the financial capacity of the respondent, who otherwise claims to have a business of trading the steel utensils, having its office at A79, Wagirpur, Delhi. It is correct that he has not placed any document to substantiate these facts, but then the circumstances primarily from the earlier incident whereas amount of Rs.5,00,000/, according to the appellant, was borrowed by him, creates a circumstance weighing in favour of the respondent. Therefore the financial capacity does not become such a road block which may demolish the case of the respondent/complainant. This becomes all the more important in view of the fact that the appellant has admitted his signatures on the cheque, has admitted that he had borrowed a sum of Rs.5,00,000/ albeit in the year 2002 and claim that he has already returned that amount, but failed to substantiate his averment.
10. The appellant is a mature person, so much so that the Ld. Trial Court considering his age, has not awarded any custodial sentence except detaining him till rising of the Court while convicting and punishing him under section 138 of Negotiable Instruments Act. It is not expected that a person of such a mature age and understanding having multiple loan transactions from the father of the respondent and the respondent, would not seek a proper discharge of the repayment of the loan. If the cheque was given in security of that C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 5 of 8 earlier transaction, then he should have obtained it back from the respondent when he repaid the loan amount and in case the respondent had taken any plea that the cheque was not traceable/found or anything like that, then in that eventuality, the appellant, as a prudent and wise man should have obtained receipt of the payment made by him. In the absence of any such fact, the claim of the appellant falls flat and cannot be given any credence.
11. The appellant has taken a stand that account in question was closed by him in the year 2009, then he could not have issued a cheque of that particular account in 2010. But the hollowness and falsehood of the claim emerges on record in view of the bank's communication Ex.CW1/B, that is, return memo of the cheques which reflects that cheque in question was dishonoured on account of insufficiency of funds. How can that be possible qua an account which has been closed.
12. Change of address by the appellant and service of statutory notice and the incorrect address in promissory note have also been brought up. The address in the promissory note was the address where the appellant was residing and as such it was not an incorrect address. The legal notice has been sent at the correct/new address, and every reason is there to presume that the appellant was served with the notice. He should have replied it by asserting what has been claimed in the case. No answer is put forth qua this. The appellant neither examined any witness from bank or otherwise nor stepped in to the witness box to prove the assertions. Again no reason leave alone any cogent reason is there for not doing so.
13. The other aspects raised by the Counsel for the appellant and the judgments relied upon on behalf of the appellant have already been considered by the Ld. Trial Court and nothing new C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 6 of 8 has been addressed. And so far as the judgments relied upon by the Counsel for the appellant are concerned, those very set of judgments were relied upon on behalf of the appellant before the Ld. Trial Court. All those judgments and the contentions raised on behalf of the appellant have been dealt with by the Ld. Trial Court in a proper manner and the appellant is unable to show any ground or reason which may work against the impugned judgment. The aspect of income tax, the security cheque, blank signed cheque, burden of proof, aspect of presumption, legally admissible debt etc. have all been dealt with by the Ld. Trial Court in a cogent manner. Ld. Trial Court has exhaustively dealt with the issue raised and after considering the entire gamut of facts and circumstance together with the attending and surrounding circumstances and the law on the subject, supporting it through the judgments in Krishna P. Murajkar Vs. Joe Ferrao, 2013 ACD 942 Bombay; Lekhraj Sharma Vs. Yashpal Gupta in Crl. L.P. 567/2014 dated 30.06.2015 by Hon'ble Delhi High Court has reached to a proper and just conclusion. Therefore, the impugned judgment does not require any interference.
14. So far as the aspect of sentence is concerned, the Ld. Trial Court has already been very considerate not to award any custodial sentence to the appellant and has only confined the sentence to the extent of compensation/penalty only. In view of there being no contention from the side of the respondent on the aspect of sentence, there appears no reason to intervene in it either.
15. In view of these facts and circumstances, both the judgment and the order on sentence dated 28.05.2018 and 26.07.2018 respectively are upheld. As such, appellant is again given a period of 30 days from the date of this judgment to comply with the order of the Ld. Trial Court dated 26.07.2018, failing which C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 7 of 8 the order would come into force. With these observations, the present criminal appeal stands disposed of.
16. Copy of the judgment alongwith Trial Court record be sent back. Copy of the judgment be given to the appellant free of cost.
17. File of the criminal appeal be consigned to Record Room. VIMAL Digitally signed by VIMAL KUMAR YADAV KUMAR Date: 2018.10.01 Announced in the open court YADAV 16:51:40 +0530 today i.e. 29.09.2018 (Vimal Kumar Yadav) Special Judge (PC Act), CBI08 Central District, THC, Delhi C.A. No. 311/18 Sudhir Goel Vs. Mukesh Chand Page No. 8 of 8