Delhi District Court
Sh. Raman Vohra vs Sh. Rajiv Paul on 8 January, 2015
IN THE COURT OF MANOJ JAIN: ASJ/SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Appeal No. 20/2014
Unique ID No. 02406R0276902014
Sh. Raman Vohra,
Son of late Sh. D.K. Vohra,
Resident of 18/7, Basant Nagar,
Near Pratap Nagar, Metro Station,
New Delhi. ......................................Appellant
Versus
Sh. Rajiv Paul,
Son of late Sh. Braham Dutt Paul,
Resident of 208/6A, Savitri Nagar,
New Delhi-110017. ..................................Respondent
Date of institution of Appeal : 18.10.2014
Date of allocation : 20.10.2014
Date of conclusion of arguments : 22.12.2014
Date of Judgment : 08.01.2015
Particulars related to impugned order
CC No. : 766/1
PS : Malviya Nagar
Penal Section for which convicted : 138 N.I. Act
Date of order of conviction : 08.09.2014
Details of sentence : Simple Imprisonment for three
months and compensation of
Rs. 10,00,000/- in default one
year SI.
Date of order on sentence : 22.09.2014
Name of learned Trial Court : Ms. Preeti Parewa,
MM-02, South, Saket.
Memo of Appearance
Dr. R.K. Yadav, learned counsel for appellant.
Sh. Anil Chhabra, learned counsel respondent.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 1 of 19
JUDGMENT
1 Appellant Raman Vohra has taken exception to his conviction for offence u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act) and consequent order on sentence.
2 For the sake of convenience, I would refer to the parties as per their nomenclature appearing in the complaint.
3 Briefly stated, case of the complainant Rajiv Paul is to the effect that he enjoyed good relationship with accused and whenever required helped him financially as well. Accused requested for a friendly loan as he was in debt. Accused also assured that he would return the same quickly. Believing him, complainant gave Rs.7,00,000/- as a friendly loan. Accused assured that he would return the same in November-December, 2010 and accordingly also gave complainant four cheques as per the following details:-
Sl Cheque No. Dated Amount Name of drawee Bank
No. (in INR)
1 262779 31.12.2010 200000/- The South Indian Bank Ltd
2 262780 31.12.2010 200000/- The South Indian Bank Ltd
3 279052 01.01.2011 100000/- The South Indian Bank Ltd
4 279051 01.01.2011 200000/- The South Indian Bank Ltd
4 All the cheques, when presented, returned dishonoured. Legal
notice did not yield any result. Accused rather got the payment stopped with malafide intention and it is in these circumstances that complaint was filed before the court.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 2 of 195 Complainant led his pre-summoning evidence by tendering affidavit and by proving the documents. Such proceedings took place on 10.05.2011 and same day, accused was ordered to be summoned for commission of offence u/s 138 of N.I. Act.
6 Trial court record indicates that accused took exception to various orders as he had filed 4 different revision petitions challenging different orders. Though he had a right to invoke revisional jurisdiction, nonetheless, the matter got delayed by such frequent filing of revision petitions.
7 On 01.08.2012, he did not appear. However, his counsel submitted that accused had no objection if notice u/s 251 Cr.P.C. was served upon the accused through his counsel. Accordingly, notice u/s 251 Cr.P.C. was served. Trial was claimed and it was also revealed by the defence counsel that no amount was taken from the complainant and the cheques in question had, in fact, lost/misplaced.
8 Matter was then fixed for moving application u/s 145 (2) of N.I. Act. Accused did not file any such application and, therefore, opportunity to cross examine the complainant was closed and matter was listed for recording of statement of accused u/s 313 Cr.P.C.
9 Statement of accused was recorded on 23.01.2013. In his such statement, he claimed that he had not issued any such cheque and rather the cheques in question were misplaced/stolen. He also claimed that he had made complaint to the bank and also to the police in this regard. He, however, admitted receiving the legal notice and also desired to lead evidence in his defence.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 3 of 1910 Interestingly, he summoned five witnesses in his defence. These were DW1 Sh. Jitender Kumar (practicing advocate who has proved the reply to the legal notice in question), DW2 Sh. Suha Thomas (official from South Indian Bank i.e. bank of accused), DW3 HC Anil Kumar (police official from PS Gulabi Bagh), Sh. V.K. Bhardwaj (bank official from bank of complainant).
11 For the reasons best known to the accused, he also called complainant Rajiv Paul in his defence and even examined him in part as DW5 Rajiv Paul. He could not have called his adversary as his witness if at all any request to that effect had been made. Such request should have been rather disallowed by the court out-rightly. However, subsequently accused himself dropped DW5.
12 Appellant/accused was held guilty for offence u/s 138 of N.I. Act. Learned trial court held that there was a presumption in favour of holder of cheques that he had received the same for discharge, in whole or in part, of legally enforceable debt or liability and accused had not been able to rebut the legal presumption. It also held that the evidence given at the pre- summoning stage could be taken as post-summoning evidence also and that accused himself was to be blamed as he never moved any application u/s 145 (2) of N.I. Act for cross examining the complainant.
13 Accused has been handed out sentence of simple imprisonment for a period of three months and has also been directed to pay compensation of Rs.10,00,000/- u/s 357 (3) Cr.P.C.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 4 of 1914 Dr. R.K. Yadav, learned defence counsel has assailed the impugned judgment and his prime contentions can be enumerated as under:-
(i) Complainant had led his pre-summoning evidence by furnishing an affidavit. However, such affidavit could not have been treated as evidence for post summoning stage and, therefore, there is no legally admissible evidence on record to hold accused guilty.
(ii) Even such evidence led by way of affidavit does not serve the requisite purpose as no other witness was examined and the bank documents i.e. cheque returning memo, statement of account etc. have not at all been proved in accordance with law.
(iii) Learned trial court erred in drawing conclusive presumption as even otherwise in the present case, accused was able to rebut the presumption suitably by leading evidence in defence.
(iv) As per the mandate of law, case was being tried summarily and, therefore, as per Section 326 (3) Cr.P.C., the successor court could not have relied upon the evidence recorded by his/her predecessor and rather there should have been de novo trial.
(v) Onus is on the complainant to prove his case and complainant has failed to discharge his primary onus and to stand on its own legs and court cannot convict anyone on the basis of defence evidence.
15 Sh. Anil Chhabra, learned counsel for the complainant has resisted all such contentions and has argued that case was being tried as summons-case and, therefore, learned MM was fully justified in relying upon pre-summoning evidence recorded earlier. He has also contended that bar provided u/s 326 (3) Cr.P.C. is not applicable at all. It has also been contended all the documents including the bank documents have been duly proved. It has been contended that accused did not choose to challenge the testimony of complainant at all and now he cannot be permitted to reopen the same chapter all over again more so when such order has attained finality.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 5 of 1916 I have given my thoughtful consideration to the rival contentions and carefully gone through the entire material available on record. Dr. Yadav also transmitted written arguments albeit on 07.01.2015 only. I have seen those as well.
17 I need not reiterate that the objective of Legislature was to ensure expeditious disposal of such type of cases. Since disposal was not at the desired pace, new Sections i.e. Sections 143 to 147 were introduced in N.I. Act by virtue of amendment brought in the year 2002. The purpose of such amendment was to speed up the trial by prescribing summary trial procedure for such offences. Even the Statement of Objects & Reasons appended with the Amendment Bill of 2002 echoed so. As per section 143 N.I. Act, provisions of Section 263 to 265 Cr.P.C., as far as may be, applicable to the trial of all offences under Chapter XVII of N.I. Act. Second proviso of Section 143 N.I. Act also prescribes that at the commencement of, or in the course of, a summary trial under this section, if it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any evidence who may have been examined and proceed to hear or rehear the case in the manner provided by Criminal Procedure Code. Section 143 (3) NI Act also provides that every trial of any such offender under NI Act would be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of complaint. As per Section 146 NI Act, bank slips would be treated as prima facie evidence of certain facts and the court shall, in respect of every proceeding, on production of bank's slip memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 6 of 19 cheque, unless and until and such fact is disproved.
18 As regards the first contention, whether the affidavit filed at the pre-summoning stage can be considered at post-summoning stage or not, issue is no longer res integra. Reference be made to Rajesh Aggarwal Vs. State 171 (2010) DLT 51 wherein it has been observed as under:-
"....... Thus in all cases under section 138 of N.I. Act, once evidence is given by way of affidavit, at the stage of pre-summoning, the same evidence is to be read by the court at post summoning stage and the witness need not be recalled at post summoning stage unless court of MM, for reasons, considers it necessary."
19 Reference be also made to another judgment of our own High Court cited as ORG Informatic Limited Vs. State (Crl. MC No. 2409/2011, DOD: 01.08.2011). In said case also, it has been observed that the only thing to be done by the accused was to file statement of defence and then to seek recall of the complainant for the purpose of cross- examination and the evidence which has been filed by way of affidavit at the stage of pre summoning may also be treated as evidence at the stage of post summoning.
20 Reference be also made to one judgment M/S. Mandvi Co-Op Bank Ltd vs Nimesh B.Thakore JT 2010 (1) SC 259, relied upon by defence even, wherein Apex court has very clearly held as under:-
"........The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 7 of 19 the affidavit."
21 Trial court record indicates that after the accused was summoned and was served with notice u/s 251 Cr.P.C. through his counsel, case was adjourned in order to enable him to move application u/s 145 (2) of NI Act. However, accused did not attempt to move any application and, therefore, vide order dated 11.10.2012, opportunity to cross-examine the complainant was closed.
22 Accused preferred a revision petition against said order dated 11.10.2012 but did not meet with any success and his such revision petition was dismissed by the Court of Sh. Rajeev Bansal, learned ASJ-03 (South), Saket vide order dated 05.01.2013.
23 Section 145 of N.I .Act read as under:-
Evidence on affidavit.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
24 Language of Section 145 (2) NI Act is very specific and unambiguous and does not leave any real scope of discussion or debate. Court has ample power to summon anyone for examination even if such person had tendered evidence by way of affidavit. Such power is, manifestly, a discretionary power vested in the Court. Court may or may not invoke the Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 8 of 19 same. However, if adversary wants to cross-examine any such witness, such request can be considered only when an application to that effect has been filed. Naturally, if any such application is filed then only recourse available to the Court is to call such person for necessary cross-examination only. Use of word 'shall' lays the same bare. In such a situation, court has no option but to call the concerned witness for cross-examination. There is no requirement of recording fresh examination-in-chief or taking fresh affidavit at post summoning stage.
25 Here, accused himself is to be blamed as he did not file any application and, therefore, he cannot be permitted to raise a grudge regarding non-compliance of Section 145 (2) NI Act more so when such issue has already attained finality as his revision petition challenging order dated 11.10.2012 was dismissed and he did not challenge such order dated 05.01.2013 passed by learned Revisional Court any further.
26 I have carefully gone through the trial court record and it is quite palpable that court had adopted the procedure meant for trial of summons- case.
27 Undeniably, there is no real and substantial difference in the manner of trial between a summons-case and a case being tried in summary manner. Procedure remains, practically, the same.
28 As per Section 143 of NI Act, court is required to apply the procedure prescribed u/s 262 to 265 Cr.P.C. As per Section 262 Cr.P.C., procedure for trial of summary trials would be the one prescribed for the trial of summons-case except as mentioned thereinafter in Chapter XXI of Cr.P.C.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 9 of 1929 Here, I would also hasten to supplement that as per Section 274 Cr.P.C., court is required to make memorandum of 'substance of the evidence' in the language of the court whereas any case being tried in the manner provided for trial of warrant-case, the deposition has to be recorded as it is in view of Section 275 Cr.P.C. Since offences, which are tried as warrant-case, are serious in nature viz a viz summons-case, court is not to record the substance of evidence in warrant-case.
30 As per Section 145 of NI Act, evidence can be given in the shape of affidavit also and accordingly at the stage of pre-summoning, complainant tendered an affidavit which was taken on record. Naturally, since evidence could be tendered by way of affidavit, there was no occasion for the court to have recorded the substance of the evidence.
31 Section 326 Cr.P.C. reads as under:-
326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.
(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge of Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross examination and re-examination, if any, as he may Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 10 of 19 permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.( emphasis supplied)
32 Dr. Yadav has strongly relied upon the aforesaid provision as well as one judgment given by Apex Court in the case of Nitinbhai Saevatilal Shah & Another Vs. Manubhai Manjibhai Panchal & Another (2011) 9 SCC 638. It has been contended by Dr. Yadav that since affidavit had been tendered on 10.05.2011 when Sh. Anuj Aggarwal, learned MM-03 was the Presiding Officer, such affidavit could not have been considered by his successors Sh. Sunil Beniwal, learned MM and Ms. Preeti Parewa, learned MM and, therefore, it was highly improper and unjustified to decide the case in gross defiance of Section 326 Cr.P.C relying upon such previously recorded evidence.
33 I have seen the aforesaid judgment of Nitinbhai (supra) very carefully. Said case also pertained to a complaint u/s 138 NI Act and in that case, evidence was recorded by one Magistrate who was eventually transferred and was succeeded by another. In that case, both the parties even gave their no objection to proceed with the matter on the basis of evidence already recorded by the predecessor of that court and accordingly such evidence was considered and the matter was disposed of. In that case, accused was held guilty. Matter eventually reached Apex Court and Hon'ble Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 11 of 19 Supreme Court held that prohibition contained in Section 326 (3) Cr.P.C. was absolute with no exception and, therefore, a serious prejudice had been caused to the accused and it was not apt for any succeeding Magistrate to decide the matter effectively and to do substantial justice on the basis of substance of evidence recorded by his predecessor. Accordingly, matter was remanded with direction to re-try the matter in accordance with law.
34 There cannot be any qualm with the aforesaid proposition of law. However, at the same time, it needs to be noticed that in said case, case was registered as a 'summary case' at the point of inception itself and in that case, it also seems that during trial, evidence was recorded not in full form but by way of recording of substance only. Naturally, if the evidence is recorded in substance, the successor court may not be in the best position to do substantial justice and it was only with that idea that prohibition was incorporated in Section 326 (3) Cr.P.C.
35 In the present case, situation is dissimilar. Firstly, the complaint was never registered as a 'summary trial case'. There is nothing to suggest that procedure meant for summary trial was ever applied at any stage. Secondly, the evidence by way of affidavit was taken on record as it is and substance of evidence was never recorded by the Court. Therefore, there was no occasion for the successor court to falter or to not understand and appreciate the evidence properly.
36 In this regard, I would also like to make reference one subsequent judgment of Supreme Court cited as M/s Mahasana Nagrik Sehkari Bank Limited Vs. Shreeji Company & Others (Crl. Appeal No. 968-971/2013 DOD: 12.07.2013). In that case also, bank had filed a complaint u/s 138 of NI Act and during the proceedings of the matter, Hon'ble Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 12 of 19 High Court relying upon said judgment of Nitinbhai (supra) passed an order directing fresh recording of evidence. Such order was challenged before the Supreme Court and order of High Court was set aside. Para 4 & 5 of said judgment read as under:
" 4. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant Bank pointed out that the law laid down by this Court in the above authority is that when a proceeding is conducted as a summary trial, and when one Magistrate has partly heard the case and is succeeded by another Magistrate, that second Magistrate has to re-hear the whole case afresh and he cannot start from the stage the first Magistrate left it. There was no question of the High Court asking the entire matter to be looked into by another Magistrate de novo, in the present case because, in fact, the evidence had not been recorded in a summary manner, but it was recorded in full. Mr. Sanjanwala, learned counsel appearing for the respondents, on the other hand, submits that the law laid down in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr., (supra) be followed.
5. We have perused the notes of evidence which are produced on record. They clearly show that the evidence in this case was recorded in full and not in a summary manner. That being so, we cannot but accept the submission of Mr. Ahmadi."
37 Situation in the present case is also virtually similar. Reference be also made to M/s Gupta Sales Corporation Vs. M/s Bare Crops Science Limited (CRM No. M-8485 of 2012 (O&M), DOD: 23.05.2013 (Punjab & Haryana High Court), Tripiti Vyas Vs. State of Rajasthan & Another SB Criminal Misc. Petition No. 2551/2012 DOD: 12.03.2013 (Rajasthan High Court) and Shyambahadur Purshottam Sharma Vs. Shri.Sudhakar Narshu Poojary and Anr. Cr. W.P. 3739 of 2011, DOD :
23.08.2013 ( Bombay High Court).Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 13 of 19
38 In M/s Gupta Sale Corporation (Supra) case, issue was again regarding the applicability of said judgment of Nitinbhai (supra) and reference was made to observations appearing in K. Jayachandran & Vs. O. Nargesee & Anr. 1987 Cr. L.J. 1997 Kerala wherein it had been observed that interest of justice is only in favour of avoiding the' unnecessary ordeal of a re-trial which would cause delay in disposal of the case and harassment to the accused and witnesses and such an unnecessary re-trial would be an abuse of the process of court. It will be very beneficial to extract following relevant paragraph of said judgment in the case of K. Jayachandran (Supra):-
"6. When in the interest of expediency in disposal of cases the legislature did not want to exclude any other case including Summons Cases from the operation of Section 326(1), the exclusion of Summary trial could only be on account of the possible prejudice to the accused and the difficulty of the successor Magistrate in deciding the case fairly and properly with the evidence on record. This prejudice and difficulty could only be on account of the fact that under Section 264 the Magistrate need only record the substance of the evidence. From the substance of the evidence so recorded, the person who recorded the same could have had a full and complete picture because he had the advantage of hearing the evidence in full and seeing the witness in the box as well as forming an opinion. These advantages may not be there to the successor and he could gather information only from the substance of the evidence before him. That may be the reason why summary trials alone were excluded from the proviso of Section 326(1) while summons cases and other serious trials are not excluded. If that is the position, the possibility of that prejudice to the accused or the difficulty of the successor are not there in this case since the evidence was recorded in full. In construing Section 326(3) we are more concerned with the substance than with the form. If in substance the case was not tried in a summary, way but as a regular summons case it cannot, come within the exclusion of 'Summary Trials' because cases tried in a summary way alone could come under 'Summary Trials', Cases though titled as Summary Trial Cases but not tried as such cannot come within the Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 14 of 19 exclusion because the object and purpose of the provision is not to exclude any case tried in the ordinary way namely, summons cases, warrant cases instituted on police report and warrant cases instituted otherwise than on police report, which are the only other types of cases coming up before Magistrates. In this connection Section 274 of the Code authorising the Magistrate to make a memorandum of the substance of the evidence of witnesses in certain proceedings including trial of Summons Cases is of no avail because it is clear from Section 326 itself that the memorandum of the substance of the evidence recorded could be made use of by the successor also as held in 1969 Cri. L. J. 711. What is stated in Section 264 is only substance of the 'evidence' whereas what is stated in Section 274 is 'memorandum of the substance of the evidence'. That memorandum could be used by the successor was not a moot point also. Even such a memorandum is not necessary in a summary trial."
39 Thus a fine distinction was drawn and it was held that Section 326 (3) Cr.P.C. was applicable only when the case was tried as summary case only and the case, which though could have been tried in summary manner but not tried so, would not come within the exclusion.
40 In Tripiti Vyas (Supra), it has also been additionally observed that use of words "as far as may be" in Section 147 NI Act also make it clear that it is not mandatory for the Magistrate to follow the procedure for summary trial always.
41 Be that as it may, fact remains in the present case substance of evidence was never recorded and, therefore, accused cannot be permitted to take shelter behind Section 326 (3) Cr.P.C. and cannot be permitted to agitate that he has been prejudiced and, therefore, blind reliance upon the aforesaid judgment of Nitinbhai (supra) is completely misplaced in the present factual matrix.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 15 of 1942 Complainant tendered his affidavit and since accused never moved application u/s 145 (2) NI Act, the facts mentioned in such affidavit remained completely uncontroverted and unimpeached. As per the contents of affidavit, complainant had given a friendly loan of Rs. 7 lacs to accused and accused issued aforesaid four cheques and all the cheques, when presented, returned unpaid. Such cheques and memos have also been proved. Cheques have been proved as Ex. CW1/1 collectively and memo has been proved as Ex.CW1/2. It is issued by Syndicate Bank. Two cheques returned because funds were insufficient and two cheques returned because payment had been stopped by the drawer.
43 Accused has raised an issue that the cheque returning memo has not been proved in accordance with law as there is no official mark on such memo Ex. CW1/2. Reliance in this regard has been placed upon Section 146 of NI Act. Undoubtedly, there is no official mark on such bank slip or memo but accused has himself come to the rescue of complainant as he has examined the concerned official of his own banker i.e. South Indian Bank, Nirman Vihar, New Delhi. I have seen the testimony of DW2 Ms. Suha Thomas and she categorically admitted in her cross-examination that two cheques bearing no. 262779 & 262780 returned dishonoured because of the reason "stop payment instructions" and two cheques returned dishonoured due to funds insufficient. It thus becomes very much evident that bank documents are beyond any doubt and accused cannot be permitted to take any benefit of trivial technical aspects.
44 According to accused, he had never taken any loan from the complainant and never issued the cheques in question. In his statement u/s 313 Cr.P.C., he claimed that his cheques were misplaced and stolen in the vehicle of complainant and he reported the matter to the police station and Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 16 of 19 also to the bank. According to accused, there was no transaction between him and complainant and these cheques have been misused by the complainant. He had an opportunity to enter into witness box in order to at least substantiate his version. For reason best known to him, he did not enter into witness box. He rather examined one advocate Sh. Jitender Kumar DW1 in order to show that he had sent reply to the legal notice. So much so, he even dared to examine complainant in his defence. In order to prove that he had reported the matter to the police station, he also examined one police official. However, such police official did not support his case as he deposed in his examination-in-chief that they had never received any complaint regarding such lost/misplaced cheques.
45 Again, the manner, in which the evidence of all the defence witnesses has been recorded, leaves no doubt that the case was never tried in summary manner. Detailed and comprehensive evidence of all such defence witnesses was recorded by the Court and substance of the evidence or memorandum thereof was never recorded and, therefore, even otherwise, defence contention, that a serious prejudice has been caused due to non- compliance of Section 326 (3) Cr.P.C., falls flat.
46 Therefore, learned trial court rightfully drew presumption in favour of the holder as envisaged u/s 139 of NI Act. Such presumption was rebuttable one but accused could not rebut the same in any manner whatsoever. Learned trial court was, therefore, fully justified in convicting the accused u/s 138 of NI Act.
47 The total worth of the cheques was Rs. 7 lacs and these were issued way back on 31.12.2010 & 01.01.2011. Learned trial court sentenced accused to undergo SI for three months and to pay compensation of Rs. 10 Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 17 of 19 lacs u/s 357 (3) Cr.P.C. However, in default of payment, convict was directed to undergo SI for further period of one year. Learned trial court has also ordered that compensation amount, if not paid, would be recoverable in terms of Section 421 Cr.P.C.
48 In this regard, I would also like to make reference to Section 431 Cr.P.C. If Section 431 Cr.P.C. & Section 421 Cr.P.C. are read together then for any money payable by virtue of any order made under this Code, which naturally also includes compensation under section 357 (3) Cr.P.C., method of recovery would be as if it were a fine and, therefore, in default, the sentence can also be provided. Reference in this regard be also made to R. MOHAN Vs A.K. VIJAYA KUMAR (2012) 7 SCR 12.
49 The maximum substantive sentence for offence u/s 138 NI Act is two years and, therefore, default sentence could not have been more than six months in view of bar contained under section 65 IPC.
50 Order on sentence is upheld with the exception that in default of payment of compensation, accused would undergo SI for a period of six months only. Convict is granted 30 days' time to deposit compensation amount of Rs. 10 lacs u/s 357 (3) Cr.P.C. in the trial court.
51 Appeal stands disposed of in aforesaid terms.
52 A copy of the judgment be sent to learned trial court along with trial court record.
Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 18 of 1953 A copy of the judgment be also given dasti to appellant free of cost. He be also taken into custody and be sent to jail to serve the sentence.
54 File pertaining to appeal be consigned to Record Room.
Announced in the open Court On this 08th day of January 2015.
(MANOJ JAIN) ASJ/Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi Criminal Appeal No. 20/2014 Raman Vohra Vs. Rajiv Paul Page 19 of 19