Delhi District Court
Rakesh Kumar vs Mukesh Malhotra on 19 July, 2013
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) KARKARDOOMA COURTS, DELHI
CA No. 68/12
Rakesh Kumar
.............Appellant
Versus
Mukesh Malhotra
............ Respondent
ORDER
1. By this order I shall dispose of the appeal filed by the appellant challenging the judgment of Ld. Trial Court passed on 24/09/12 convicting him of having committed an offence under section 138 of Negotiable Instruments Act (NIA) and order sentencing him for the same vide order dated 06/10/12.
2. Briefly the facts are that respondent had given friendly loan of Rs.200,000/ to the appellant for the marriage of his daughter, on 20/05/04. the amount was to be paid back within one year. After the expiry of one year the appellant issued the cheque in dispute bearing no 433344 drawn on State Bank of India for the re payment of the loan amount. The cheque, however, was Crl. (A) No. 68/12 Page 1 of 7 Rakesh Kumar Vs. Mukesh Maltotra dishonored on presentment, on ground of " Funds Insufficient" vide bank returning memo dated 10/04/06. The legal notice was given, however the money was not returned so the complaint was filed before the Trial Court. Ld. Trial Court convicted the appellant and sentenced him as per the judgment and order under challenge.
3. The appeal has been filed on following ground: ● That the Trial Court committed procedural error in as much as the matter which was continuing as a summons triable case, was converted into summary trial.
● Ld. Trial court did not consider the defence of the appellant that none of his daughters was married in the year 2004 and therefore the ground of loan was doubtful and that he had given the cheques to one Shakeel for housing loan.
4. Arguments were heard.
5. Ld. Counsel for the appellant argued that the matter was going on for the complainant's evidence. The evidence was not closed and the matter was directly put for recording of plea of accused. He argued that the appellant has four daughters and none of them was married in 2004. he had filed the marriage card of the one daughter and photographs of two, to show that the marriages were solemnized in 2002, 2006 and 2009. Regarding the fourth daughter Crl. (A) No. 68/12 Page 2 of 7 Rakesh Kumar Vs. Mukesh Maltotra he says that she was married in 2007 but that was the Court marriage without the consent of the parents.
6. Ld. Counsel for the respondent on the other hand argued that the appellant is not disputing the issuance of cheque. Signature on the cheque is not disputed. The legal notice was served but was not replied. No application u/s 145 Cr.P.C. was filed.
7. Arguments heard. Record perused.
8. The complaint in this case was filed on 22/06/06. Pre summoning evidence was filed on the basis of which summons were issued. Thereafter, the matter was put for complainant's evidence. The affidavit of the complainant was supplied to the counsel for the appellant. On 30/03/11 the matter was directed to be put for plea of defence to be taken by the accused. So far as plea of Ld. Counsel that the Ld. Magistrate could not have converted the summons triable case in to a summary trial case, is concerned. Section 145 was introduced in the NI Act by way of an amendment, the ambit of which falls within the realm of procedural law. The procedural laws as against the substantive laws are applicable retrospectively and are applied to the cases which are pending on the date of the amendment coming into force. This is the law and more specifically in respect of section 145, was laid down by the Hon'ble Supreme Crl. (A) No. 68/12 Page 3 of 7 Rakesh Kumar Vs. Mukesh Maltotra Court in Rajender Kumar Vs. Kalyan V (2002) SLT 790. The issue was discussed by the Trial Court also in its judgment. It is a known fact that after amendment of the Negotiable Instrument Act the Hon'ble High Court of Delhi passed a judgment Rajesh Aggarwal VS. State & Amnr. Crl. MC No. 1996/10 decided on 28/07/10 whereby the procedural to be followed by the Magistrate in the case u/s 138 NI Act was laid down and the magistrate were directed to follow the procede. Ld Magistrate in his judgemnt has relied upon the judgment of Hon'ble Delhi High Court on the issue Org Informatics Ltd Vs State and Anr Crl M.C. No 2409/2011 decided on 01/08/2011; M/s mandvi Coop Bank Ltd vs Nimesh B Thaore, (2010)3SCC83; Gurpreet Singh vs Ranbaxy ltd decided by Hon'ble High Court on 02/08/2010; M/s Kaluch Paper House & Anr Vs M/s Mahavir Papers & Anr Cr MC No 3687 of 2009 decided by Hon'ble High Court on 02/08/2010.
9. In view of the law as discussed above and the legal pronouncements, order of Ld. Magistrate where by the matter was converted into a summary trial case and treated so was not erroneous in any manner and after the conversion it was on the accused to have moved appropriate application for the examination of the witnesses of complainant in cross examination. Moreover the Crl. (A) No. 68/12 Page 4 of 7 Rakesh Kumar Vs. Mukesh Maltotra conversion of the matter in the manner as specified, was not challenged by the appellant at appropriate stage by way of revision or otherwise. The raising of the issue at this stage, therefore, does not help the appellant in any manner.
10. Coming to the merits of the case it is argued that complainant has alleged that the appellant took loan from him for the marriage of his daughter, however, none of his daughters was married during the period of taking of a loan or in the following years. His daughters were married in 2006 and 2009 after the alleged date of loan. The counsel for the respondent argued that the appellant had conveyed to the complainant that he wants money for the marriage of his daughter. The complainant had no means to have found whether he was making a genuine request or was telling a lie.
11. Another plea was taken by the appellant regarding a housing loan taken by him and the cheques having been handed over to one Shakeel. As rightly written in the judgment of the Ld. Trial Court, the burden was on the accused to have proved that the cheques in dispute were given to said Shakeel for the purposes of taking of loan. This he could have done either by summoning said Shakeel in Crl. (A) No. 68/12 Page 5 of 7 Rakesh Kumar Vs. Mukesh Maltotra support of his case, or by calling some one from Standard Chartered Bank, the bank from which he took loan, to prove that the cheques of the same series were given to the bank for the purposes of loan. Hon'ble Supreme Court in AIR 2010 SC 1898 Hon'ble Supreme Court held that once the accused had admitted that the signature on the impugned cheque were his own, section 139 of the Act mandate a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence.
Hon'ble Supreme Court had also held that:
to disprove the presumption the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would under the circumstances of the case act upon the plea that it did not exist. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to mee, the constructionrelated expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complainant discloses the prima facie existence of a legally enforceable debt or Crl. (A) No. 68/12 Page 6 of 7 Rakesh Kumar Vs. Mukesh Maltotra liability since the complainant has maintained that his money was used for the construction expenses. Since the accused did admits that the signature on the cheques was his, the statutory presumption comes into play and the same has been rebutted even with regard to the material submitted by the complainant."
A mere plea that the loan was taken and production of the property papers and one letter of Standard Chartered bank does not by any means prove that the cheques were related to the housing loan transaction.
12. Admittedly the appellant has not filed any complaint against the complainant nor against Shakeel for having misused his cheque. The presumption of section 139 NI Act stays with the complainant.
13. There is no merit in the appeal of the appellant. The same is dismissed. TCR be sent back along with copy of this order. Appellant is directed to surrender before the concerned Trial Court by 01/08/13. Appeal file be consigned to Record Room. Announced in the open court on 19/07/2013 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKDCOURTS/DELHI Crl. (A) No. 68/12 Page 7 of 7 Rakesh Kumar Vs. Mukesh Maltotra