Delhi District Court
Pankaj Kumar vs Gopal Dass Vaid (Dead) on 13 September, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
Criminal Appeal No. 56/4/10
Pankaj Kumar
S/o Om Parakash,
R/o Shop No. 4478, Gali Jatan,
Pahari Dhiraj, Sadar Bazar,
Delhi. Appellant
Versus
Gopal Dass Vaid (dead)
Through atorney Sunil Kumar Vaid.
S/o Late Gopal Dass Vaid.
R/o F-46D, Gali No. 4,
Mahavir Enclave, Palam,
Delhi. . .....Respondent
&
Criminal Appeal No. 57/4/10
Pankaj Kumar
S/o Om Parakash,
R/o Shop No. 4478, Gali Jatan,
Pahari Dhiraj, Sadar Bazar,
Delhi. Appellant
Versus
Sunil Kumar Vaid.
S/o Late Gopal Dass Vaid.
R/o F-46D, Gali No. 4,
Mahavir Enclave, Palam,
Delhi. . .....Respondent
C.A. No. 56/4/10 & 57/4/10 Page 1/13
JUDGMENT:-
By this common judgment, I shall dispose of the appeal filed U/s 374 (3) Cr.PC for seeking set aside the judgment dated 28.05.2010 passed by the Ld. MM in CC no. 5014/01/06 titled as Gopal Das Vaid Vs. Pankaj Kumar & CC No. 5015/01/06 title as Sunil Kr. Vaid Vs. Pankaj Kumar, U/s 138 NI Act PS Sadar Bazar.
The facts as alleged by the appellant are that on 16.05.2005 the appellant/accused came to the resident of the respondent/complainant who is real Nana and Mama along with his parents and pleaded that he has an urgent need of money for his business purposes and requested the respondent/complainant to give him Rs. 5 lakhs as loan. The complainant said that he could give only Rs. 2.60 lakhs. An amount of Rs. 2.60 lakhs was given in cash as loan for 6-7 months on 16.05.2005 and in lieu of the same, the appellant/accused issued and delivered two post dated cheques bearing no. 240238 dated 04.03.2006 for Rs. one lakh and cheque no. 240240 dated 04.04.2006 for Rs. 1.60 lakhs. In complaint case no. 15014/1/6 titled as Gopal Das Vaid Vs. Pankaj Kumar again on the request of appellant given a cash Rs. 90,000/- as loan for 6-7 months on 27.05.2005 and in lieu of the same, the appellant/accused issued and C.A. No. 56/4/10 & 57/4/10 Page 2/13 delivered a post dated cheque of Rs.90,000/- dated 06.04.2006.
The case of the respondent/complainant are that the appellant/accused once again came to the resident of the respondent/complainant on 27.05.2005 requested that he needs another Rs. 3 lakhs on an urgent basis. On 31.05.006 all the aforesaid cheques were presented for realization by the respondent/complainant and on 06.05.2006 when the respondent/complainant went to his bank and came to know that above mentioned cheques were dishonoured for insufficient funds vide returning memos dated 01.06.2006. The respondent/complainant then sent a legal notice dated 08.06.2006. Legal notice was duly served and received by the appellant/accused. It is also the case of the respondent/complainant that the appellant/accused send a false reply dated 17.06.2006 to the legal notice of the respondent/complainant. Two separate complaints were filed against the appellant/accused one by respondent/complainant namely Gopal Dass Vaid real Nana and another by Sunil Kumar Vaid real Mama of the present appellant. The appellant in both the case pleaded that all the four cheques in question had been stolen/missing from his shop. It is further submitted that the appellant/accused in the course of his business signed these blank cheques and left the same at his shop as the payments was to C.A. No. 56/4/10 & 57/4/10 Page 3/13 be made to some customers. As soon as the appellant/accused was not able to trace these cheques he instructed his banker to stop payment in case those cheques are presented for realization vide written request dated 19.05.2005. The appellant/accused received legal notice sent by the complainant/respondent he came to know that these cheques had been taken away by the respondent/complainant and misappropriated the same.
In the said judgment dated 28.05.10 observed by the Ld. MM that if the cheques had been stolen from the shop of the accused, there is no question as regard to given as security to the complainant. There are two fold defence taken by the accused/appellant, both are mutually contradicting and demolish one another, both the defences cannot stand and subsist together.
It is contended by the appellant that the impugned judgment is neither sustainable under law nor tenable under the facts and circumstances of the present case. The order dated 28.05.2010 has been passed by the Ld. Trial Court on the basis of conjectures and surmises and without appreciating the grounds of the defence raised by the appellant/accused. The trial court erred in not appreciating the contradictions in the statement of the respondents/complainants . The respondent Sunil Kumar Vaid does not have independent bank account. C.A. No. 56/4/10 & 57/4/10 Page 4/13 The returning memos Ex.CW1/4 to CW1/6) and the bank's documents have been manipulated as the cheques in question had been dishonoured on the ground of "Stop Payment" and not on "Insufficient Funds". It is submitted that CW-2 Om prakash, Gunman from Canara Bank, Sadar Bazar Branch, Delhi has proved memo of stop payment Ex. CW2/B which clearly reflected that all the four cheques have been stopped for encashment. Besides, the documents also reflect the relevant date on which these cheques were requested to stop payment on its presentation i.e. 19.05.2005. All the four cheques were blank cheques and it has unambiguously been admitted by the respondent/complainant in cross examination dated 04.11.2009 that in all four cheques, the name was filled up by Gopal Das Vaid and amount on the cheques was filled by jija Moti Lal.
It was also contended that Ld. Trial Court miserably failed to appreciate that presumption under section 139 and 118 (a) of NI Act is rebuttable and the facts and circumstances of the present case clearly shows that the presumption is rebutted and the appellant/accused having discharged the initial burden, onus shifted on the respondent/complainant who failed to prove their case beyond reasonable doubts without help of the presumption. It is highly probable defence that the cheques were C.A. No. 56/4/10 & 57/4/10 Page 5/13 stoled. This fact is also corroborated by the material available on record. The respondent/complainant cross examined and the affidavit filed by them, such as the respondent/complainant stated in his cross examination dated 04.11.2009 that about 3-4 days prior to 31.05.2006 on instructions received from the accused via telephonic conversation the name was filled up by Gopal Dass Vaid on the cheques and the cheques were presented, whereas in affidavit filed by the respondent Sunil Kumar Vaid, stated that the telephonic conversation was on 31.05.2006. the father of the respondent/complainant goes to the extent that on 31.05.2006 he came to the chamber of his counsel for the purpose of drafting and issuing a legal notice to serve to the accused. When a person earns only 1500/- per month from his general shop and his father's pension is 2600/- per month, there are four daughters in his family, is it conceivable by any stretch of imagination that this family can advance a loan of Rs.4,50,000/-. Reliance placed on Santosh Manikrao Gundale Vs. Rameshwar Wamanrao Tak & anr ( Bombay High Court) 2007 (1) Acquuittal 546 and K. Prakashan Vs. P.K. Surenderan VIII (2007) SLT 750.
After assignment of this appeal, TCR was summoned & Notice issued to the respondents.
Ld. Counsel for the respondents/complainants argue that the Gopal C.A. No. 56/4/10 & 57/4/10 Page 6/13 Dass Vaid retired from the service and got his retirement benefits and from the demand of the appellant the substantial amount has been withdrawal and delivered to the appellant in cash. This is also shows from the statement of account of the respondent Gopal Dass Vaid. Both the respondents on the date of presentation of the cheque having the joint account and the cheque was presented and as per the returning memos which was shows that there was insufficient amount. The appellant after receiving the notice from the respondent's have intimated regarding stop payment and stop all the withdrawal however on the date when the payment was stopped there was no sufficient funds in the account of the appellant as such the appellant bank has rightly send the memos for "insufficient funds". The appellant has not been able to convey the facts regarding stolen/missing of the cheques on the legal notice was served by the respondent to the appellant . The appellant was taken a different plea on one hand is alleged that the cheques in question was missing. And on the other hand, alleged that some one has stolen his cheques and further alleged that the cheques in question given as a security in lieu of the payment received as loan. It is also contained by the appellant that the cheque in question have been misused by the respondent's. The present appellant have also filed a complaint U/s 200 Cr.PC against both the C.A. No. 56/4/10 & 57/4/10 Page 7/13 respondents with the contentions that during the course of business, he had signed cheques bearing nos. 240238, 240239, 240240 and 758841 in the second week of may, 2005 which he had left at the shop and which were to be given to different customers after being filled up by him at the time of delivering the same to the customers. The accused is closely related to respondents being his maternal uncle and maternal grandfather and as such were on visiting terms and had frequently visited the shop by complainant/respondents and his father. In the second week of May, 2005, he found that the above said cheques could not be found despite best efforts to trace them, the cheques could not be trace out, the complainant approached the Branch Manager, Canara Bank, Sadar Bazar, Delhi and got the payment of those cheques stopped vide an application dated 19.05.2005.
The status report filed by In charge police post Ahata Kidara, the inquiry officer has reported that during inquiry it was found that complainant had taken a loan of Rs. 4,50,000/- from his relative/respondents and had given four post dated cheques which were returned dishonoured upon presentation against which respondent/complainant had sent legal demand notice and have filed complaint U/s 138 NI act against the complainant in July' 2006 and C.A. No. 56/4/10 & 57/4/10 Page 8/13 complainant has made his complaint at PS Sadar Bazar only after he acquired the knowledge about the legal demand notice and in order to escape the liability U/s 138 NI act. the complaint case U/s 138 NI Act are reported to be pending in the court of Ld. MM . Considering the facts and circumstances of the case observed that, it is clear from the record that the complaint regarding theft of cheques has been filed at PS Sadar Bazar on 16.06.2006 and another complaint regarding the alleged threatening was given. Further the present complaint has been filed before the court on 24.08.2006. The complainant (appellant herein) has himself stated that cheques had gone missing in May 2005 and application for stop payment had been given to the Bank Manager on 19.05.05. The present complaint filed in the court as well as the complaints filed at PS Sadar Bazar speaks about the delayed action by the complainant (appellant), particularly when the said complaints have been initiated once, the complainant (appellant) received legal notice in respect thereof, which conduct and delay has gone unexplained whereby an adverse inference arises against the complainant. As such decline to proceed on the application U/s156(3) Cr.PC and the same was rejected.
The parties does not have any business dealing. The appellant taken different plea that the cheque has been given as the security during the C.A. No. 56/4/10 & 57/4/10 Page 9/13 course of business transactions. The appellant has not discussed as to whom, blank cheque is to given and what are the business transactions with whom, even it is to be presented, there was no sufficient amount exist in the account of appellant. The signature on the cheques are admitted. There is no rebuttal by appellant that in whose favour the cheque propose to be given what business transactions with the customer named particular and what amount was due which is to be payable these are the several questions which are left to be unanswered by the appellant. It is settled preposition of law that the signatures is admitted on documents deemed to be admitted. The appellant admitted his signature on the cheques , same is deemed to be admitted since signatures of cheques admitted. In case title as Satish Jayantilal Shah vs. Pankaj Mashruwala 1996 CRI. L.J.3099 wherein it was held in para no. 8 that "while admitting issuance of disputed cheques. The learned advocate for the applicant/accused vehemently argues that the body of cheques is not written by the drawer and that the cheques were not voluntarily given in discharge of legal debt of liability and thus provision of Section 138 of the Negotiable Instruments Act are not applicable. On this point, he relies upon decision reported in the case of T.N. Khambati v. M/s Vinayak Enterprises 1995 Cri LJ 560 ( A.P.) "
C.A. No. 56/4/10 & 57/4/10 Page 10/13
In case title K.N. Beena Vs. Muniyappan AIR 2001 Supreme Court 2895- wherein it has been observed that burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned judge had lost sight of sections 118 and 139 of the Negotiable Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instruments (including a cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus in complaints under section 138, the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused/appellant.
The counsel for the respondent relied upon
1. M/s Modi Cement Ltd, Sh. Kuchil Kumar Nandi AIR 1998 SC 1057.
2. Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza AIR 2004 SC 408.
3. Gautam Chand Chopada Vs. Mahendra Kumar Pukhraj Kothari CA No. 154/2008 HC Bombay.
4. K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another, AIR C.A. No. 56/4/10 & 57/4/10 Page 11/13 1999 SC 3762
5. M.A. Mohan Pai Vs. V.A. Jabbar and another CA No. 348/11996 Kerela High Court.
6. Ms. Also Constructions and Housing Limited Vs. M. Mal Reddy Crl. O.P. No 603 of 1999 Madras High Court.
7. Mahendra A Dadia and others vs. State of Maharashtra and another Crl No. 645/1998 of Bombay High Court.
Well empowered with the finding of Apex Court that the object and the ingredients under the provisions, in particular, section 138 & 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly of cheques as instruments, primarily depends upon the integrity and honesty of the parties.
In the instant case, the cheque issued by the respondent has been dishonoured and no sufficient fund was lying in the account of appellant which show dishonest and malafide on the part of the appellant. The amount paid part of same has been withdrawn by Gopal Dass Vaid respondent from his salary account as he got the retirement benefit.
In view of above discussion in the foregoing paragraphs and on the consideration of the facts and circumstances of the case and the law on the subject proved that the appellant have committed an offence u/s 138 of C.A. No. 56/4/10 & 57/4/10 Page 12/13 N.I. Act and trial court rightly convicted and found no illegality in the judgment of conviction.
So far as the order on sentence dated 29.05.10 in both the appeal same is not being challenged, however, the said order of sentence passed by the trial court is appropriate and in accordance with the mandate of law. There is no scope for modifications of the order on sentence.
Therefore, in view of the aforesaid discussion, I do not find any merit in appeal in hand. Same is hereby dismissed. The appellant be directed to appear before trial court within seven days for execution of judgment and order of sentence. Copy of this judgment be kept in both the file. Copy of judgment along with TCR be sent to trial court for compliance. Original appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT TODAY ON 10.09.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI C.A. No. 56/4/10 & 57/4/10 Page 13/13