Delhi District Court
Sonu Lakhwani vs Rinku Magan on 10 September, 2018
CA No.41/18
Sonu Lakhwani vs Rinku Magan
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 41/18
ID No.231/18
CNR No.DLSW010125692018
In the matter of :
Sonu Lakhwani
S/o Late Sh. Babu
R/o WZ156, Ground Floor,
Gali no.1, Krishna Park,
Tilak Nagar, New Delhi - 110 018 ... Appellant
Versus
Rinku Magan
S/o Sh. Harish Chand
R/o WZ20/1, Krishna Park,
Tilak Nagar, Street no.9 & 10,
New Delhi - 110 018 ... Respondent
Date of institution of appeal : 29.06.2018
Date on which judgment reserved : 31.08.2018
Date on which judgment pronounced : 10.09.2018
Page: 1/11
CA No.41/18
Sonu Lakhwani vs Rinku Magan
JUDGMENT
1. The appellant/convict is aggrieved by the judgment dated 26.05.2018 (hereinafter referred to as 'impugned order') vide which the appellant was convicted u/s.138 of Negotiable Act, 1881 (hereinafter referred to as 'NI Act') and the sentence order dated 29.05.2018 (hereinafter referred to as 'impugned sentence order') vide which he was sentenced to simple imprisonment of 03 months with a further direction to pay compensation of Rs.4/5 lakhs to the respondent/complainant, in default of which to further undergo simple imprisonment of 03 months.
2. The brief facts which are relevant for deciding the present case are that the respondent/complainant had filed a criminal complaint u/s.138 of NI Act against the appellant. In the said complaint, it was averred that in the year 2015, the appellant Page: 2/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan approached the respondent for a friendly loan and accordingly, a loan was given to the appellant. It was further averred that in discharge of the loan, the appellant had issued two cheques of Rs.03 lakhs and Rs.02 lakhs respectively, out of which one cheque of Rs.03 lakhs on presentation was dishonoured due to the reason 'Account Closed'.
3. Thereafter, legal notice was served upon the appellant but despite receipt of the notice, payment of cheque amount was not made. Accordingly, a complaint was filed against the appellant u/s.138 of NI Act.
4. Thereafter, presummoning evidence was led by the respondent, after which the appellant was summoned by the ld. Trial court for the offence u/s.138 of NI Act.
5. Thereafter, notice was framed against the appellant u/s.251 CrPC, to which the appellant pleaded not guilty and claimed trial.
6. At trial, respondent no.1 examined himself as CW Page: 3/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan
1. No other witness was examined by the respondent/complainant. Accordingly, evidence of respondent was closed. Thereafter, appellant was examined u/s.313 CrPC and all the incriminating evidence coming on record was put to him.
7. Although at the stage of examination u/s.313 CrPC, the appellant opted to lead defence evidence but thereafter, no defence evidence was led on record by the appellant despite grant of opportunity.
8. Thereafter, ld. Trial court had, after perusing the evidence which had come on record and after hearing the respondent, had found the appellant guilty for the offence u/s.138 of NI Act. The ld. Trial court did not accept the defence of the appellant that he had only taken a loan of Rs.02 lakhs which stood repaid and the cheque given as security to the respondent was misused by him. Aggrieved by the impugned judgment and the sentence order, the appellant has approached this Page: 4/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan court.
9. Notice of the appeal was issued to the respondent/complainant, who on being served, chose not to file any reply.
10. I have heard Sh. Pradeep Bhasin, ld. Counsel for the respondent/complainant. Ld. Counsel for the appellant did not lead any arguments despite grant of opportunity. Thereafter, whatever grounds are taken in the appeal are taken as arguments on behalf of the appellant.
11. It was submitted by ld. Counsel for the respondent that in the present case, the respondent/complainant had proved its case beyond reasonable doubt and therefore, ld. Trial court had rightly found the appellant guilty for the offence u/s.138 of NI Act. It was submitted that respondent/complainant had produced his bank statement Ex.CW1/6 showing the transfer of the amount of loan of Rs.03 lakhs through 03 cheques of Rs.01 lakh each. Therefore, ld. Trial court Page: 5/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan rightly disbelieved, in the light of the document Ex.CW1/6, that the appellant had failed to prove his defence that loan amount was of Rs.02 lakhs only.
12. It was further submitted that although the appellant had taken a defence that he had repaid the entire loan amount of Rs.02 lakhs but even that defence was not believed by ld. Trial court as no evidence was led on record by the appellant in support of his defence. It was further submitted that although the appellant claimed that he had repaid Rs.01 lakh through cheque and Rs.01 lakh through cash but neither any banker was examined to prove the payment of Rs.01 lakh through cheque nor any receipt was filed on record to show the repayment by way of cash.
13. It was concluded by submitting that there is no illegality or infirmity in the impugned judgment and impugned sentence order of the ld. Trial court. Accordingly, a prayer was made to dismiss the Page: 6/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan appeal.
14. I have considered the submissions of ld. Counsel for the respondent/complainant and have carefully perused the grounds raised in the appeal. I have also summoned the trial court record and have carefully perused the same.
15. The appellant is primarily aggrieved by the impugned judgment on the ground that respondent/complainant had not proved the advancement of loan of Rs.03 lakhs to the appellant as no written document was produced by the respondent on record nor the said amount was shown in the books of account/income tax returns.
16. To counter the said ground raised in the appeal, ld. Counsel for the respondent has submitted that the statement of bank account of the respondent/complainant Ex.CW1/6 is the document which shows the advancement of loan of Rs.03 lakhs through three separate cheques into the account of the appellant. Therefore, the Page: 7/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan documentary evidence was brought on record with regard to advancement of loan of Rs.03 lakhs to the appellant.
17. In order to appreciate the rival contentions, I have carefully perused the evidence led on record by the respondent/complainant.
18. In the evidence recorded of respondent/complainant as CW1 on 19.08.2017,the bank statement Ex.CW1/6 was never tendered in evidence and was not exhibited in the evidence of the respondent/complainant examined as CW1. Further, even the said statement of account Ex.CW1/6 was incriminating circumstance which should have been put to the appellant in his examination u/s.313 CrPC and without the same being put, it could not have been used by the ld. Trial court to form basis of the conviction.
19. The impugned judgment reflects that in para 32, the ld. Trial court has placed reliance upon Page: 8/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan Ex.CW1/6 to hold that complainant has proved on record advancement of loan of Rs.03 lakhs.
20. This approach of the ld. Trial court in relying upon the statement of account Ex.CW1/6 in the impugned judgment to return a finding of conviction against the appellant is not the correct approach and is against the established procedure of law as the bank statement Ex.CW1/6 was never tendered in evidence by the respondent/complainant nor it was put to the appellant in his examination u/s.313 CrPC. Therefore, it could not have been relied upon by Ld.Trial Court to convict the appellant. Therefore, on this short ground alone, the impugned judgment and sentence order are required to be set aside.
21. There is one more reason for setting aside the impugned judgment. The ld. Trial court has permitted the adoption of presummoning evidence at the postsummoning stage. Ld. Trial Page: 9/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan court could not have done so in the light of Section 273 CrPC, which provides that all evidence taken during the course of trial shall be taken in the presence of the accused. Since the presummoning evidence is recorded in the absence of accused, therefore permission to adopt the same at the post summoning stage is violative of Section 273 CrPC. I am fortified in my reasoning in the judgment of Hon'ble High Court of Delhi titled as Nabil Ahmed Vs. State and another, Crl.Rev.P No. 329/17 decided on 30.05.2017 wherein in para 11, the Hon'ble High Court of Delhi has held as follows: "11. It is trite that in criminal prosecution after the issuance of process under Section 204 Cr.P.C., the evidence is to be recorded in the presence of accused (S.273 Cr.P.C.). There is no occasion for the presummoning evidence to be allowed to be adopted in as much as that would be a departure from the normal procedure and in the teeth of the requirement of evidence to be Page: 10/11 CA No.41/18 Sonu Lakhwani vs Rinku Magan gathered in the presence of the accused".
22. In the light of the aforesaid discussion, the trial in this case stood vitiated. Hence, the appeal filed is allowed. The impugned judgment and sentence order is set aside.
23. The matter is remanded back to the ld. Trial court to hold a fresh trial from the stage of evidence of the respondent/complainant.
24. Parties to appear before the ld. Trial court on 12.09.2018 at 02.00 pm.
25. Trial court record be sent back to ld. Trial court alongwith a copy of this judgment.
26. Appeal file be consigned to Record Room.
Digitally signed VIKAS by VIKAS DHULL
DHULL Date: 2018.09.10
16:36:03 +0530
Announced in the open court (Vikas Dhull)
Dated : 10.09.2018 Spl. Judge (PC Act) CBI03
Dwarka/New Delhi
Page: 11/11