Delhi District Court
Village Mominpur vs Shyam Narain Yadav on 23 November, 2021
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 212 OF 2019
CNR NO. DLST01-003606-2019
IN THE MATTER OF
Sabhajeet Yadav,
S/o Sh. Dhramraj,
R/o House No. 238/17,
Sangam Vihar,
New Delhi-110080.
Also at :
Village Mominpur,
Post Rasul Mundera,
Then. Tanda,
District Ambedkar Nagar, U.P. ........ Appellant-Convict
Versus
Shyam Narain Yadav,
S/o Late Sh. Jinguri Singh Yadav,
R/o 19/170, Dakshimpuri,
New Delhi - 110063. ........ Respondent-Complainant
DATE OF INSTITUTION : 28.05.2019
DATE OF RESERVING JUDGMENT : 06.10.2021
DATE OF PRONOUNCEMENT : 23.11.2021
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 1 of 16
JUDGMENT
1. The present appeal has been filed against the Judgment dated 20.03.2019 and Order on Sentence dated 30.04.2019 pronounced by Ld. MM-01 (South) N.I. Act Saket in CC No. 6778/2017 titled as Shyam Narayan Yadav Vs Sabhajeet Yadav vide which the appellant-convict was convicted of offence punishable under Section 138 the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) and sentenced to undergo simple imprisonment for one (01) month and directed to pay fine of Rs 5,00,000/- to the complainant as compensation.
Brief facts
2. Case of the respondent-complainant is that he extended a friendly loan in sum of Rs 3,00,000/- in May 2014 to the appellant-convict. A further loan of Rs 2,67,000/- was extended to the appellant-convict in October 2015. The appellant-convict also executed a handwritten note dated 30.10.2015 (Ex. CW1/A) admitting his liability to pay Rs 5,67,000/- with interest by 30.01.2016. Towards payment of this loan amount, appellant- convict issued a cheque bearing no. 000054 dated 08.11.2016 drawn on Bank of India in favour of the respondent-complainant (Mark X). This cheque, upon presentation, got dishonoured on account of funds being insufficient. On 17.12.2016, appellant-convict came to the house of the respondent-complainant, took the dishonoured cheque with return memo, destroyed the same and ran away.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 2 of 16 Complainant immediately made a PCR call at number 100 and also gave a written complaint dated 17.12.2016 (Ex. CW1/B) at PS Ambedkar Nagar.
3. Thereafter, in discharge of his part liability, the appellant-convict issued the cheque in question i.e. cheque no. 000032 in sum of Rs 3,00,000/- dated 06.04.2017 drawn on HDFC Bank (Ex. CW1/C) in favour of the respondent-complainant. Upon presentation, it was returned unpaid vide return memo dated 07.04.2017 (Ex. CW1/D) with remarks 'Funds Insufficient'. Despite issuance of legal demand notice dated 04.05.2017 (Ex. CW1/E) at the Sangam Vihar address and District Ambedkar Nagar, U.P. address, the appellant-convict did not pay the cheque amount to the respondent-complainant. The legal notices at both the addresses were returned unserved with the endorsements 'Incomplete Address' and 'Left' respectively dated 05.05.2017 and 17.05.2017. The respondent-complainant, therefore, filed the complaint case u/s 138 NI Act on 06.06.2017.
4. After conclusion of trial, Impugned Judgment dated 20.03.2019 was pronounced. Appellant-convict was convicted of offence punishable under section 138 NI Act. Vide the Order on Sentence dated 30.04.2019, appellant-convict was sentenced as follows :
" In view of the aforesaid facts and circumstances and the amount of cheque in question, CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 3 of 16 convict Sabhajeet Yadav is sentenced to 1 month simple imprisonment. He is also directed to pay a fine of Rs.5,00,000/- (rupees five lakhs), which fine shall be payable to the complainant as compensation. In default of payment of the fine, the convict shall undergo a further sentence of 1 month simple imprisonment."
5. Aggrieved with the Impugned Judgment of conviction, the appellant-convict preferred the present appeal.
Grounds of Appeal
6. The Impugned Judgment has been assailed on various grounds by the appellant-convict. It is submitted that the alleged cheques were never issued towards any friendly loan by the appellant-convict. The son of the respondent-complainant to whom the cheque in question was handed over has not been examined. No receipts regarding payments of Rs 3,00,000/- or Rs 2,67,000/- were issued. It is submitted that respondent-complainant is not an Income Tax Assessee and he did not disclose what his total income out of rent and agricultural land was. During his cross-examination, respondent-complainant was not even aware if the cheque in question was undated or not. It is further submitted that respondent- complainant was, in fact, running a committee and had taken undated cheque as security for the purpose of said committee of Rs CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 4 of 16 3,00,000/-. It is further submitted that the statement u/s 313 Cr.P.C. of the appellant-convict was recorded in the absence of his counsel. It is also submitted that the explanation of the incriminating evidence recorded by Ld. Trial Court was erroneous and contrary to the defence taken by the appellant-convict at the time of framing of notice u/s 251 Cr.P.C.
7. I have heard detailed arguments and have perused the record carefully including the Trial Court Record.
Discussion
8. To prove the offence u/s 138 NI Act, following ingredients are required to be fulfilled:
(i) Drawing of cheque in discharge, in whole or in part, of any debt or liability;
(ii) Return of the said cheque unpaid upon presentation in the bank within the period of its validity;
(iii) Issuance of a legal demand notice issued by the payee to the drawer of the cheque within thirty days of receiving information of dishonour of cheque from the bank ;
(iv) Failure of the drawer of such cheque to make the payment of the said amount of money to the payee within 15 days of the receipt of the notice.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 5 of 16
9. I shall now consider these ingredients one by one.
Drawing of cheque in discharge, in whole or in part, of any debt or liability
10. The cheque bearing number 000032 dated 06.04.2017 worth Rs 3,00,000/- drawn on HDFC Bank (Exh CW1/C) was is- sued by Appellant-convict Sabhajeet Yadav in favour of respondent- complainant Shyam Narayan Yadav. During the Admission /denial of documents u/s 294 Cr.P.C., the above-said cheque was put to the Appellant-convict as follows:
Q1. Do you admit your signatures on the cheque in question ?
Ans. Yes. Cheque in question bears my signatures. Other details on the same, apart from date, are also in my hand- writing.
11. Since the cheque was admittedly issued in favour of the respondent-complainant by the appellant-convict , the contention of the appellant that son of the respondent-complainant to whom cheque was handed over was material witness and should have been examined as complainant's witness does not hold any ground.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 6 of 16
12. The case of the respondent-complainant is that the cheque in question was issued by the appellant-convict in discharge of part liability. The total debt amounted to Rs 5,67,000/-. In support of this assertion, respondent-complainant proved a handwritten note/receipt (Ex. CW 1/A) written by appellant-convict Sabhajeet Yadav admitting his debt in sum of Rs 5,67,000/-. It is also the case of the respondent-complainant that earlier, appellant- convict had issued a cheque bearing number 000054 worth Rs 5,67,000/- dated 08.11.2016 (Mark X). This cheque got dishonoured on presentation. On 17.12.2016, appellant visited the complainant, took the dishonoured cheque with return memo, destroyed them and ran away. Respondent- complainant also lodged a written complaint (Ex. CW 1/B) in this respect at PS Ambedkar Nagar. Thereafter, the cheque in question worth Rs 3,00,000/- was issued. With this background, I shall now examine whether the appellant-convict has disputed the handwritten note /receipt (Ex. CW1/A). For this purpose , I shall reproduce the relevant part of the cross-examination of CW1Shyam Narayan Yadav:
"It is wrong to suggest that accused had paid amount payable by him and cheque ear- lier given by him was returned by me to the accused . It is wrong to suggest that I had told the accused at that time that re- ceipt Ex CW1/A has been lost."
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 7 of 16
13. The above said cross-examination would show that the appellant-accused did not dispute the receipt Ex. CW1/A. His defense that emerges from the cross examination is that he had already returned the total amount of Rs 5,67,000/- but the receipt (Ex. CW1/A) was not returned on the pretext of respondent- complainant having lost it. Execution of this receipt has not been disputed by the appellant while cross-examining CW1/complainant. In such a scenario which amounts to admission of receipt Ex CW1/A , the non-production of any Income Tax Return or any other documentary proof of respondent-complainant's income and financial capacity to extend a total loan amount of Rs 5,67,000/- is not fatal to the case.
14. At this stage, it would be apt to consider Section 139 NI Act which reads as follows:
139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
15. The burden was on the appellant to rebut the aforesaid presumption. Appellant-convict failed to prove that he had repaid the debt of Rs 5,67,000/- mentioned by him in the receipt Ex CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 8 of 16 CW1/A. Further, at the time of recording of S/A u/s 313 Cr.P.C., the appellant-convict gave the following explanations :
"Q. Do you know the
complainant?
A. Yes.
Q. Is it correct that you had
taken loan of Rs.5,67,000/- from the complainant by way of two installments and that you had also executed one note in favour of the complainant in this regard?
A. The same is incorrect. I had taken a loan of Rs.3,00,000/- from the complainant in the year 2016 at interest. Interest amount of Rs.2,67,000/- has been paid by me to the complainant by way of various cash installments.
However, principal amount of Rs.3,00,000/- has not been repaid by me.
Q. Is it correct that you had issued one cheque bearing no.
000054 dated 08.11.2016 for an amount of Rs.5,67,000/- for repayment of the said loan and the said cheque was dishonored due to insufficiency of funds and that you forcibly took the said cheque and its return memo from the complainant?
A. The same is correct.
However, out of the said amount, amount of Rs.2,67,000/-
was paid to the complainant by way of cash. Hence, the said CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 9 of 16 cheque was destroyed upon asking of the complainant himself.
Q. Towards part payment of the said loan, you issued and delivered cheque bearing no.
000032 dated 06.04.2017 for Rs.3,00,000/- which is Ex.
CW1/C (cheque shown). What do you have to say?
A. The same is incorrect.
Cheque in question was issued for repayment of balance amount of Rs.3 lacs.
Q. The said cheque upon presentation was returned unpaid by your banker for reason and with remarks 'insufficient funds' vide return memo dated 07.04.2017 which is Ex.CW1/D. What do you have to say?
A. The same is correct.
Q. Upon the said dishonour the complainant made demand of dishonoured cheque's amount vide notice in writing Ex.
CW1/E dated 04.05.2017?
A. I did not receive the said notice.
Q. Upon the receipt of notice you failed to make the payment of dishonoured cheque's amount?
A. I am ready and willing to make payment of balance amount of Rs.3,00,000/-.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 10 of 16 Q. Do you want to say anything else?
A. Cheque in question bears
my signatures. Other details on
the same, apart from date, are
also in my handwriting.
Q. Do you want to lead
defence evidence?
A. Yes."
16. In the entire S/A u/s 313 Cr.P.C., there is not even a whisper of cheque in question having been issued as security against some committee floated by the respondent-complainant. No doubt, Ld. Counsel for the appellant-convict was not present at the time of recording of the statement u/s 313 Cr.P.C. but it is not as if the appellant-convict had been caught by surprise. He had sufficient time to consult his counsel before the date fixed. The appellant- convict had been pursuing the case diligently and was well aware of the defence taken by him when notice u/s 251 Cr.P.C. was framed.
17. At the time of framing of Notice u/s 251 Cr.P.C., the appellant-convict put forth his defence as follows :
"I was member of one committee run by the com- plainant . I could not pay some of the installment of the said committee and, hence, I asked for 3-4 months time from the complainant to pay the said installments and gave him CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 11 of 16 cheque in question as security. Complainant presented the cheque in question without my consent or knowledge. Cheque in question bears my signatures. Other details on the same, apart from date, are also in my handwriting. I did not receive any legal demand notice from the complainant. I have never taken any loan from the complainant."
18. Appellant-convict did not produce any evidence in his favour and did not lead any Defence Evidence. He could not prove his defence either by way of recording DE or through cross- examination of CW1. The presumption against him that the cheque was issued in discharge, in whole or in part, of any debt or liability, therefore, could not be rebutted.
Presentation of cheque within the period of its validity and its return unpaid
19. The cheque in question is dated 06.04.2017. It was pre- sented in the bank within the period of its validity and it was re- turned unpaid vide return memo dated 07.04.2017 ( Ex CW1/ D ) with remarks 'Funds Insufficient'.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 12 of 16 Issuance of legal demand notice and failure of appellant-convict to pay the cheque amount
20. Legal Demand Notices dated 04.05.2017 (Ex CW1/E) were issued by the respondent-complainant to the appellant-convict at his Mominpur, UP address and also at his House no. 238/17, Sangam Vihar New Delhi addresses by post the receipts of which are Ex CW1/F1 and Ex CW1/F2 respectively, both dated 04.05.2017. The delivery report Ex CW1/G1 regarding the Mominpur address mentions 'Item delivery attempted Insufficient Address'. The delivery report Ex CW1/G2 regarding Sangam Vihar address mentions 'Item delivery attempted unclaimed'. The delivery was attempted on 05.05.2017 and 06.05.2017 at this address. It is noted that it is not the case of the appellant-convict anywhere that the addresses at which the legal notices were sent were incorrect or incomplete addresses.
21. It has been observed by Hon'ble Supreme Court of India in CC Alavi Haji vs Palapetty Muhammed 2007(6) SCC 555 as follows :
"16. ...The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 13 of 16 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of oth- ers, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 14 of 16 the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
22. In the present case, respondent-complainant took steps for service of summons of the complaint case upon the appellant- convict. It was observed by ld Trial Court in order dated 02.08.2017 that 'it appears that the accused is deliberately avoiding service'. It was only when bailable warrants were issued against the appellant- convict that he appeared before Ld Trial Court. The appellant- convict did not pay the cheque amount to respondent-complainant within 15 days of service of process upon him. All the ingredients of offence u/s 138 NI Act stand proved against the appellant-convict.
CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 15 of 16
23. Ld Trial Court has pronounced a well reasoned judgment of conviction against the appellant-convict. The impugned Order on sentence is also well within the parameters of law.
Conclusion
24. In light of above discussion, the Court does not find any ground to interfere with the impugned judgment and Order on Sentence. The appeal against Judgment dated 20.03.2019 and Order on Sentence dated 30.04.2019 pronounced by Ld. MM-01 (South) N.I. Act Saket in CC No. 6778/2017 is dismissed.
25. Copy of the Judgment along with the TCR be returned to Ld. Trial Court.
26. File be consigned to Record Room.
PRONOUNCED IN OPEN COURT ON THIS 23rd DAY OF NOVEMBER 2021 VRINDA Digitally signed by VRINDA KUMARI KUMARI Date: 2021.11.23 16:09:58 +0000 (VRINDA KUMARI) ASJ-02/SOUTH/SAKET COURTS NEW DELHI CA No. 212/2019 Sabhajeet Yadav Vs Shyam Narain Yadav 23.11.2021 Pg No. 16 of 16