Delhi District Court
Kusum Lata vs . Ravinder Kumar on 11 March, 2016
CA NO. 42/15
Kusum Lata Vs. Ravinder Kumar
IN THE COURT OF SH. VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI - 03, DWARKA COURTS, NEW DELHI
CA No. 42/15
IN THE MATTER OF :
Smt.Kusum Lata
W/o Sh.Ramesh Chand
R/o WZ-96, Naraina Village
New Delhi-110 028. ... Appellant
Versus
Sh.Ravinder Kumar
S/o late Sh.Mahender Singh
R/o WZ-101, Naraina Village
New Delhi-110 028. ... Respondent
Date of institution of appeal : 20.11.2015
Date on which judgment reserved : 04.03.2016
Date on which judgment pronounced : 11.03.2016
JUDGMENT
1. Vide the present appeal, the appellant has challenged the judgment dated 19.09.2015 (hereinafter referred to as impugned judgment) vide which appellant was convicted under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) 1/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar and the sentence order dated 08.10.2015 (hereinafter referred to as impugned sentence order) vide which appellant/convict was sentenced to simple imprisonment for a period of one year and was also sentenced to pay a compensation of Rs.2,20,000/- to the respondent/complainant and in default of payment of compensation, appellant to further undergo simple imprisonment for a further period of three months.
2. The brief facts which are relevant for deciding the present appeal are that respondent/complainant had filed a complaint before the ld.trial court under section 138 of the NI Act alleging therein that appellant was the neighbour of the respondent/complainant and was known to the respondent/complainant for quite long time and he was having good relations with the respondent/complainant.
3. It was further alleged that in the first week of April, 2011, appellant alongwith her husband had approached the respondent/complainant for a friendly loan of Rs.2,20,000/- due to their urgent 2/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar personal family requirement. The respondent/complainant having regard to the good family relations, had in the last week of April, 2011, given a friendly loan of Rs.2,20,000/- to the appellant in four installments in cash. It was further alleged that at the time of availing the loan, appellant had issued four cheques with the promise that the loan amount shall be repaid within a span of 1-1/2 years.
4. The respondent/complainant further alleged that in the month of January, 2013, he approached the appellant for refund of his loan amount but appellant requested for two months more time to repay the same. The two months extension was granted by the respondent/complainant and when in the month of March, 2013, again respondent/complainant had demanded his loan amount, then the appellant had told him to present the cheques given by her. Accordingly, respondent/complainant had presented the four cheques in his bank for encashment but the same were returned unpaid due to "funds insufficient". Thereafter, 3/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar respondent/complainant had issued the notice but despite service, no payment was made by the appellant. Accordingly, respondent/complainant had filed a complaint under section 138 of the NI Act against the appellant.
5. The ld.trial court had summoned the appellant. At trial, respondent/complainant had produced the receipt Ex.CW1/10 executed by the appellant admitting taking of loan of Rs.2,20,000/- from the respondent/complainant.
6. The defence of appellant was that she had not signed the cheques and the cheques in question were stolen from her house. Appellant also denied to have taken any loan from the respondent/complainant. Appellant also denied execution of receipt Ex.CW1/10.
7. During the course of trial, appellant had filed one application for getting the opinion regarding the signatures appearing on the cheques from handwriting expert. The said application was allowed by the ld.trial court and thereafter, specimen signatures of the appellant alongwith the cheques in question were sent to 4/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar the FSL, Rohini, Delhi and thereafter, report dated 10.11.2014 was received wherein handwriting expert opined that signatures appearing on the cheques were that of the appellant.
8. Appellant also produced her employer i.e. DW1 Avinash Chandra Vohra in his defence, who deposed that there was no transaction between the appellant and respondent/complainant and respondent/complainant had filed a false case against the appellant just to extort money from her.
9. The ld.trial court after perusing the evidence came to the conclusion vide the impugned judgment that signatures on the cheques stood proved as appellant banker had not returned the cheques on account of drawer's signatures differ and further, in the light of FSL report dated 10.11.2014, it stood further proved that the signatures on the cheques were that of the appellant. The ld.trial court further held that giving of loan by respondent/complainant stood proved by receipt Ex.CW1/10 which was not challenged by the appellant and no cogent 5/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar evidence being led by the appellant to rebut the presumption under section 118 and 139 of the NI Act. Accordingly, it held that cheques were issued by appellant for discharge of her liability and hence, she was convicted vide the impugned judgment and sentenced, accordingly vide the impugned sentence order.
10. Aggrieved by the impugned judgment and impugned sentence order, appellant has preferred the present appeal.
11. Notice of the appeal was issued to the respondent/complainant. Respondent/complainant chose not to file any reply.
12. I have heard the ld.counsel for appellant and ld.counsel for respondent/complainant. I have also summoned the trial court record and have carefully perused the same.
13. It was submitted by the ld.counsel for appellant that ld.trial court wrongly relied upon the receipt Ex.CW1/10 to hold that there was liability with regard to cheque amount in question. It was submitted that initially in the cross examination, respondent/complainant denied that 6/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar any receipt was issued by the appellant at the time of taking the loan but in the same breath, respondent/complainant again deposed that receipt was indeed prepared and he was in possession of the same. It was further submitted that when the receipt was produced during further cross examination, respondent/complainant had deposed that receipt had the signatures of husband of appellant but no such signature of the husband of appellant was visible on the receipt Ex.CW1/10. It was further submitted that in the cross examination of respondent/complainant, it had come on record that respondent/complainant had never seen the appellant signing the receipt and respondent/complainant was not sure whether the receipt Ex.CW1/10 had the signature of the appellant or not. Therefore, in the light of evidence which has come on record, the genuineness of the receipt Ex.CW1/10 was in doubt and ld.trial court ought not to have relied upon the same to hold that liability of the appellant was proved by the respondent/complainant.
14. It was further submitted that it is not 7/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar believable that respondent/complainant will issue the first loan through cheques to appellant as is proved by CW2 and thereafter, he will give the second loan of Rs.2,20,000/- in cash. The very fact that the second loan was alleged to have been given in cash shows the falsity of the case of the respondent/complainant as if the loan was given , he would have given the same through cheque as was done earlier.
15. It was submitted that since the respondent/complainant and the appellant were known to each other and since respondent/complainant was frequent visitor to the house of appellant, therefore, he had stolen the cheques and were later on misused by him.
16. It was submitted that even the respondent/complainant had admitted that date in the cheques was not filled up by the appellant but was filled up by him.
17. Lastly, it was submitted that respondent/complainant was required to prove the source of funds from where he had advanced the 8/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar loan but no evidence was led on record by him to show that from where he had arranged the amount of Rs.2,20,000/- in cash to be given to the appellant.
18. Therefore, since the source of funds to give loan was not proved by the respondent/complainant, therefore, the ld.trial court wrongly raised the presumption under section 139 of the NI Act as the factual basis for raising the same was not discharged by the respondent/complainant. Accordingly, it was prayed that appeal be allowed and appellant be acquitted for the offence under section 138 of the NI Act.
19. In support of his submission, ld.counsel for appellant has relied upon the following judgments:- (1) K.Prakashan Vs. P.K.Surenderan, 2008 (1) SCC 258; (2) Anil Aggarwal Vs. State and anr, 2015(9) AD (Delhi) 377; (3) C.Antony Vs. K.G.Raghavan Nair, 2003 (1) SCC 1; (4) Pankaj Vs. State (Govt.of NCT) Delhi, 2013 (3) JCC 1849; and Rajesh Kumar Aggarwal Vs. Pavneet Singh, 9/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar 2008 (153) DLT 121.
20. On the other hand, ld.counsel for respondent/complainant submitted that respondent/complainant never deposed that husband of appellant had signed on the receipt Ex.CW1/10 and respondent/complainant had only deposed that husband of appellant signed on the receipt with regard to loan given to him and with regard to loan given to appellant, he had taken the receipt alongwith him for getting the same signed from the appellant.
21. It was further submitted that when receipt Ex.CW1/10 was produced in the court, although, appellant had denied the execution of the same but thereafter, no steps were taken by the appellant to show that receipt Ex.CW1/10 did not bear her signatures. It was submitted that if appellant could have sent her cheques alongwith her specimen handwriting to the FSL, Rohini for obtaining the opinion regarding the signatures appearing on the cheques then there was no reason as to why appellant could not have sent the receipt Ex.CW1/10 to the handwriting expert 10/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar which further shows that appellant was not disputing her signatures on the receipt Ex.CW1/10 and that is why no steps were taken to send the same to the handwriting expert.
22. It was further submitted that the ld.trial court rightly relied upon the receipt Ex.CW1/10 to hold that cheques in question were issued in discharge of loan liability of Rs.2,20,000/-. It was further submitted that respondent/complainant had provided the source of funds by deposing that he had given the loan amount to the appellant by withdrawing from Chit Fund being managed by Sh.Shankar Pal Singh and from his personal savings and appellant had not refuted the said deposition of respondent/complainant.
23. It was further submitted that since there was no challenge to the source of funds by the appellant, therefore, it was not incumbent upon the respondent/complainant to have summoned Sh.Shankar Pal Singh regarding withdrawing of amount from Chit Fund Scheme for paying the same to the appellant.
11/23 CA NO. 42/1524. Lastly, it was submitted that the defence of the appellant that the cheques were stolen from her house was rightly disbelieved by the ld.trial court as no reasonable and prudent person will keep signed blank cheques in his house. It was further submitted that since the cheques had the signatures of appellant as per FSL Report dated 10.11.2014 and the reason for dishonourment of cheques was not "stop payment" but "insufficient funds", it further proves that cheques were never stolen from the house of the appellant.
25. It was submitted that in case, cheques were stolen then the first thing any reasonable and prudent person will do is that he will inform his banker to stop the payment of stolen cheques. However, in the present case, no such instructions were issued to the banker by the appellant which further shows that a false defence was raised by the appellant to escape from her liability. Accordingly, it was prayed that appeal be dismissed.
26. I have considered the rival submissions of the parties and have carefully perused the record.
12/23 CA NO. 42/1527. The first contention of the ld.counsel for appellant that in the present case, source of funds was not proved by the respondent/complainant is required to be rejected.
28. As per evidence of respondent/complainant, he had given the details of source of funds from where he had given the loan to the appellant i.e. from his personal savings and from withdrawing from Chit Fund Scheme being run by Sh.Shankar Pal Singh.
29. The said deposition of the respondent/complainant was never challenged by the appellant meaning thereby that she accepted that the amount was given from the personal savings of the respondent/complainant and after withdrawing from Chit Fund Scheme being run by Sh.Shankar Pal Singh.
30. Secondly, taking of loan by appellant stood proved as appellant had suggested in the cross examination of respondent/complainant that it was respondent/complainant, who had given the loan to the appellant which 13/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar respondent/complainant admitted to be correct. This suggestion given by appellant further proves that loan was taken by the appellant. Therefore, on the basis of evidence led by respondent/complainant and the suggestion given by appellant that loan was given by respondent/complainant to her, there was factual basis for the ld.trial court to have raised the presumption that the cheques were issued in discharge of liability under section 139 of the NI Act.
31. Now, it was for the appellant to have rebutted the presumption. However, appellant has failed to rebut the presumption as defence of the appellant that she had taken no loan from the respondent/complainant or that the cheques were stolen, is not proved on the basis of preponderance of probabilities. Therefore, ld.trial court rightly held that cheques were issued in discharge of liability towards the loan amount.
32. The second contention of the appellant that the ld.trial court wrongly relied upon the receipt Ex.CW1/10 also deserves to be rejected.
14/23 CA NO. 42/15Kusum Lata Vs. Ravinder Kumar The reason for the same is that although appellant denied her signatures on the same but no steps were taken by appellant to prove that the signatures appearing on the receipt Ex.CW1/10 were not that of the appellant.
33. The very fact that the appellant had sent the cheques in question alongwith her specimen signatures for obtaining the expert opinion and chose not to send receipt Ex.CW1/10 for obtaining handwriting expert opinion, proves that appellant had falsely taken up the defence that the receipt Ex.CW1/10 was not executed by her.
34. No reason has been assigned in the arguments by the ld.counsel for appellant as to why receipt Ex.CW1/10 was not sent alongwith cheques for obtaining the opinion of the handwriting expert whether it bears the signatures of the appellant or not.
35. Further, appellant could have proved that the signatures appearing on the receipt Ex.CW1/10 were not her signatures by sending it to the FSL, Rohini, Delhi alongwith cheques in 15/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar question but since the same was not done, an adverse inference has to be drawn against the appellant that in case, receipt Ex.CW1/10 was sent to the FSL, Rohini, Delhi, the result would not have been favourable to the appellant.
36. Further, in the cross examination of respondent/complainant, he had nowhere deposed that receipt Ex.CW1/10 is also signed by the husband of appellant.
37. On careful perusal of the cross examination of respondent/complainant, it is seen that the loans were given to the appellant and her husband and respondent/complainant had deposed that husband of appellant had signed on the receipt there and then and receipt Ex.CW1/10 was handed over to him to get the same signed from appellant. Therefore, the evidence which has come on record do not create any doubt regarding the genuineness or regarding the execution of receipt by appellant. The initial deposition made by respondent/complainant that no receipt was issued and immediately thereafter, respondent/complainant deposing that the receipt 16/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar was issued, does not create any doubt regarding the genuineness of the receipt as a person may forget whether receipt was issued or not and if witness had recollected about the issuance of receipt then there was no reason to doubt about the execution of receipt Ex.CW1/10. Therefore, the ld.trial court rightly relied upon the receipt Ex.CW1/10 to hold that the cheques were issued in discharge of liability of the loan amount of Rs.2,20,000/-.
38. The another contention of the appellant was that the cheques were stolen from her house and they did not bear her signatures.
39. The said contention of the appellant is required to be disbelieved as signatures of the appellant on the cheques were proved by the FSL report dated 10.11.2014 which was never challenged by the appellant being incorrect.
40. Further, the cheques being stolen from the house of appellant is also required to be disbelieved as no prudent person will keep the signed cheque in his house.
17/23 CA NO. 42/1541. Secondly, even assuming that cheques were stolen from the house of appellant, then the very fact that no intimation was given to the banker to stop the payment of cheques, further proves that cheques were never stolen.
42. In the present case, cheques have been dishonoured not on account of "stop payment" but on account of "Insufficient funds" which further proves that cheques were never stolen. Therefore, this contention has no force.
43. The last contention of the ld.counsel for appellant was that the cheques were not filled up by the appellant and they were filled up without the consent of the appellant.
44. The said contention of the appellant also deserves to be rejected as it was proved on record that the cheques were duly signed by the appellant. The defence of the appellant that cheques were never stolen, was never proved.
45. Further, in the light of receipt Ex.CW1/10 and the cheques being in possession of respondent/complainant, it was rightly presumed 18/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar by the ld.trial court that the cheques were issued in discharge of loan liability of Rs.2,20,000/-.
46. Even if the date in the cheques was filled up by respondent/complainant then also it will not affect the validity of the cheque.
47. I am fortified in my reasoning by the judgment delivered by Hon'ble Delhi High Court in case reported as M/s.The Jammu and Kashmir Bank Vs. Abhishek Mittal, 2012(1) DCR 189 wherein it was held that a person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque has been given by him. It was further held in Para 7 as follows:--
Para 7 -- "Once issuance of the cheque has been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the NI Act for the discharge in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the NI Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the NI Act for 19/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque".
48. Accordingly, a presumption arises in favour of the respondent/complainant and against appellant that the cheques had been issued in discharge of any debt or other liability. It was for the appellant to rebut the presumption which she has miserably failed to do so.
49. Therefore, filling up of date in the cheque by respondent/complainant will not make the cheque invalid as he had an implied authority from the appellant to fill up the date.
50. Further, in this case, date in the cheques as per deposition of respondent/complainant was done as per instructions of the appellant. Therefore, respondent/complainant had the implied as well as the express authority to fill up the date in the cheques.
51. The judgments relied upon by the appellant in the matter of K.Prakashan's case 20/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar (supra), Anil Aggarwal's case (supra) and C.Antony's case (supra) are not applicable to the present case as in the present case, the source of funds by respondent/complainant had been disclosed which was not doubted by the appellant. Further, taking of loan by the appellant is also proved vide receipt Ex.CW1/10. Therefore, existence of legally recoverable debt was proved, in this case by the respondent/complainant.
52. The other judgments relied upon by the appellant delivered in Pankaj's case (supra) and Rajesh Kumar Aggarwal's case (supra) are also not applicable to the present case as respondent/complainant had not withheld the best evidence.
53. The best evidence regarding the loan transaction was the receipt executed by the appellant Ex.CW1/10 and the same was produced by the respondent/complainant in the evidence. The appellant, although denied the execution of receipt Ex.CW1/10 but took no further steps to prove that the signature appearing on the receipt do not belong to her. Further, the 21/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar respondent/complainant had also disclosed the name of the person Sh.Shankar Pal Singh from whom he had taken the amount of around Rs.2 lacs to pay to the appellant. The appellant had not disputed the said fact.
54. Further, in the light of evidence which has come on record with regard to receipt Ex.CW1/10 and the disclosure of name of Sh.Shankar Pal Singh, the onus stood shifted upon the appellant to show, based upon preponderance of probabilities, that no loan was advanced to her. However, the defence taken by the appellant that the cheques were stolen from her house and do not bear her signatures, was found to be unbelievable as signatures were that of the appellant as per FSL Report dated 10.11.2014.
55. Further, the cheques being stolen also could not be substantiated on record as discussed in the aforementioned paras of the judgment. Therefore, the case law cited by the appellant is of no help to her case.
56. No other grounds have been raised in the 22/23 CA NO. 42/15 Kusum Lata Vs. Ravinder Kumar appeal by the appellant which calls for interference in the impugned judgment and impugned sentence order. The judgment of the ld.trial court is a well reasoned one and does not suffer from any illegality or infirmity. Accordingly, the appeal is dismissed.
57. Appellant be taken into custody for serving the sentence as imposed by the ld.trial court. A copy of judgment be provided free of cost to appellant.
58. TCR be sent back alongwith a copy of judgment to the ld.trial court.
59. Appeal file be consigned to record room.
Announced in the open court (Vikas Dhull) Dated : 11.03.2016 Spl. Judge (PC Act) CBI-03 Dwarka/New Delhi 23/23