Delhi District Court
Braham Singh Tanwar vs Rajiv Suri on 6 July, 2013
IN THE COURT OF SH. VIKRANT VAID, MM(NI ACT02)/
SOUTH, SAKET COURTS, NEW DELHI
Unique Id No. 02403R0527892003
CC No. 577/10
Braham Singh Tanwar
S/o Sh. Ram Phal
R/o 131, Asola Fatehpur Beri,
New Delhi. .......................Complainant
Versus
Rajiv Suri
S/o J.L. Suri
R/o B46, Shivalik,
New Delhi. .............................. Accused
OFFENCE COMPLAINED OF OR PROVED : Section 138 of
Negotiable Instrument Act.
PLEA OF ACCUSED : Pleaded not guilty
DATE OF INSTITUTION : 12.03.2003
DATE OF RESERVING ORDER : 01.07.2013
FINAL ORDER : Acquittal
DATE OF PRONOUNCEMENT : 06.07.2013
CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 1 of 9
JUDGMENT
1. The present complaint is filed by Braham Singh Tanwar (hereinafter referred to as "complainant") against Rajiv Suri (henceforth referred to as "accused") under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "The Act").
2. It is case of the complainant that he advanced a friendly loan of Rs. 15,00,000/ to the accused on his request. Accused issued two cheques amounting Rs. 15,00,000/ to discharge his legal liability. The complainant presented the said cheques for payment but the the same were dishonoured with remarks 'Insufficient Funds'. A legal demand notice was served upon the accused by complainant. Despite service of legal notice, the accused failed to make the payment of cheques amount within the stipulated period. Against the factual matrix, complainant instituted the present complaint against the accused.
3. Complainant in his evidence appeared as sole witness CW1.
He reiterated the averments made in the complaint and proved the CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 2 of 9 following documents:
(i) The cheque bearing no. 363850 dated 07.12.2002 for Rs. 10,00,000/ as Ex.CW1/A.
(ii) The cheque bearing no. 363849 dated 07.12.2002 for Rs. 5,00,000/ as Ex.CW1/B.
(iii) Return memos for the aforesaid cheques as Ex.CW1/C and Ex.CW1/D respectively.
(iv) Debit advice issued by complainant's bank as Ex.CW1/E and Ex.CW1/F.
(v) Legal notice dated 31.03.2003 as Ex.CW1/G.
(vi) Postal receipts of RCAD as Ex.CW1/H.
4. The examination of accused U/s 313 Cr.PC was conducted and his explanation was recorded.
5. Accused appeared as sole witness DW1 and deposed on the lines of defence.
6. I have heard the final arguments and perused the record.
7. The plea of defence is that the cheques were issued conditionally for purchase of property from complainant and same were not encashable. Cheques were to be replaced with bank draft in case the property transaction went through. However, the property deal could not mature but the conditional cheques were not returned by the complainant.
8. At the stage of defence evidence, a list of documents CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 3 of 9 (including certified copy of the conditional advance receipt purportedly executed by the complainant and the accused) was filed by the accused and same was put to the complainant. Complainant was called upon to admit or deny the said documents in terms of Section 294 Cr.PC. Complainant, during the said proceedings, admitted all the documents including the certified copy of the said conditional advance receipt. The certified copy of said conditional advance receipt was accordingly exhibited as Ex.DW1/A. Signatures of the complainant regarding the admission were obtained on the said Ex. DW1/A.
9. Section 294 of the CrPC reads as under :
"No formal proof of certain documents : (1)Where any document is filed before any court by the prosecution or the accused, the particulars or the every such document shall be included in a list and the prosecution or the accused as the case may be, or the pleader for the prosecution or the accused, if any, shall called upon a admit or deny the genuineness of each such document.
(2)The list of documents shall be in such form as may be prescribed by the State Government.
(3)Where the genuineness of any document is not CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 4 of 9 disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed.
Provided that the court may, in its discretion, require such signature to be proved."
It is evident from the plain reading of the Section 294 CrPC that once the genuineness of the document is admitted by the party, the same may be read in evidence without it being formally proved.
10. The law regarding the admission under Section 294 CrPC and its implications have been succinctly detailed by the Hon'ble Superior Courts in a plethora of judgments.
In Gunjit Singh Vs. State 62 (1996) DLT 202, it has been held by the Hon'ble Delhi High Court:
Sub Section 3 of Section 294 CrPC, clearly envisage that the documents produced by the prosecution on being admitted by the accused became authentic and the contents thereof became substantive evidence. In this case as discussed above, since documents were produced and relied by the public prosecutor as his documents, therefore, genuineness of the same could not be said to e in dispute. Such documents had to be read in evidence by the Court without proving the signatures of the person by CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 5 of 9 whom it purported to have been signed.
In Saddiq Vs. State, reported in MANU/UP/0388/1980, the Full Bench of the Allahabad High Court held :
"If the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under SubSection (1) of Section 294 it amounts to an admission that the entire document is true and correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under Sub Section (3) of Section 294. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true and correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony."
A Full Bench of the Bombay High Court in Shaikh Farid Hussinsab Vs. State of Maharashtra 1983 Cri LJ 487 took the view that a document becomes both relevant and authentic evidence of its contents without the proof of its authenticity by the CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 6 of 9 author or anybody else by force of Section 294 on its conditions being complied with. It was inter alia held:
"...Thus, a document whose genuineness is not disputed can ordinarily be read in evidence without the formal proof. The authority to read in evidence implies the authority to use the document and rely on it for adjudicating points at the trial."
11. In light of the aforesaid judgments, it is crystal clear that the document Ex. DW1/A can be read in evidence. In other words by admitting the documents Ex. DW1/A, the complainant has admitted its execution. It is pertinent that the document has been executed by the complainant himself and accordingly the contents of the document Ex. DW1/A stand proved.
As the entire defence case is based on Ex.DW1/A, I deem it fit to reproduce the contents of the same which read as:
CONDITIONAL ADVANCE RECEIPT MOU between Sh. Braham Singh Tanwar S/o Sh. Ram Phal, R/o 131, Asola Fatehpur Beri, New Delhi110030 and Rajeev Suri S/o Late J.L. Suri, R/o B46, Shivalik, Malviya Nagar, New Delhi for the sale of Farm House admeasuring 1.5 acres which is next to Uppal Farm House in Fatehpur Beri, Dera Mandi More, New Delhi. Braham CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 7 of 9 Singh represents himself to be the owner of abovesaid Farm House. The total price is fixed as Rs. 1,50,00,00/ (Rupees One Crore Fifty Lacs only) which is payable after the title of Braham Singh Tanwar in stated Farm House as well as legal used use is satisfactory to Rajeev Suri. Two cheques No. 363849 dated 07.12.2002 for Rs. 5,00,000/ (Rupees Five Lacs only) and cheque no. 363850 dated 07.12.2002 for Rs. 10,00,000/ (Rupees Ten Lacs only) totalling Rs. 15,00,000/ (Rupees Fifteen Lacs only) of Canara Bank, Munirka, New Delhi are given as conditional advance which will be replaced by bank drafts in case the title of Farm House and its legal use is found to be satisfactory. In case the title and use is not satisfactory, the cheques will be treated null & void and all the arrangements will have no legal force. Cheques are conditional advanced and not encashable. The title and legality to use as a approved Farm House is the essence of this conditional MOU.
This conditional MOU signed in the presence of witnesses.
WITNESSES:
1..................... (Braham Singh Tanwar) S/o Sh. Ram Phal R/o 131, Asola Fatehpur Beri, New Delhi110030,
2. (Rajeev Suri) S/o Sh. J.L. Suri R/o B46, Shivalik, Malviya Nagar, New Delhi110017, CC No. 577/10 Braham Singh Tanwar Vs. Rajiv Suri Page No. 8 of 9
12. Ex.DW1/A speaks categorically that the cheques in question have been issued merely as an conditional evidence and the same are not encashable. As the cheques are not encashable, the same could be said to have been issued in discharge of the liability. Hence one of the basic ingredient of the Section 138 of the Act has not been satisfied.
13. It is also evident from Ex.DW1/A that the cheques in question have been issued with respect to the property transaction and not towards repayment of any loan. The said document is consistent with the defence plea and completely annihilates the complainant case. Hence the accused has been successfully in establishing his defence and rebutting the presumptions raised under the Act.
14. In the light of the foregoing discussion, I return a finding of acquittal of the accused for the offence under Section 138 of the Act.
Announced in the open Court (Vikrant Vaid)
on 06.07.2013 MM(NI Act)02/South
Saket/Delhi
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