Delhi District Court
Rajinder Singh @Raju vs Balvinder Kaur on 15 December, 2017
IN THE COURT OF DR. SHAHABUDDIN
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE: (NDPS)
WEST DISTRICT : TIS HAZARI COURTS : DELHI
IN THE MATTER OF :-
CRIMINAL APPEAL NO.99/17
RAJINDER SINGH @RAJU,
S/O S. HARBHAJAN SINGH,
R/O HOUSE NO.94, HARIJAN CHOPAL,
VILLAGE BAKKARWALA, DELHI.
..... APPELLANT
VERSUS
BALVINDER KAUR,
W/O MR. BALVINDER SINGH,
R/O WZ-IIIA/105, NEW DELHI.
.....RESPONDENT.
DATE OF INSTITUTION OF APPEAL : 01.04.2017
DATE OF RESERVING THE ORDER : 05.12.2017
DATE OF ANNOUNCING THE ORDER : 15.12.2017
ORDER
1. By this Order, I have to decide an appeal filed by the appellant/accused Rajinder Singh @Raju(in short appellant) aggrieved by the judgment of conviction dated 14.02.2017 and order on sentence dated 07.03.2017 respectively (in short referred to as impugned judgment and order respectively) passed by Ms. Aakankshya Vyas, Ld. MM(NI Act) West District, Delhi (in short referred to as Ld. Trial Court) in CC No.11765/16, vide which the appellant was convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (in short NI Act) and then sentenced to undergo simple imprisonment for four months and to CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 1 of 10 pay a sum of Rs.3,85,000/- as compensation to the complainant/respondent Smt. Balvinder Kaur(in short respondent) and in default of payment of compensation, to undergo further simple imprisonment for two months.
2. Briefly stating the facts mentioned in the complaint are that the appellant and respondent were having friendly and family relations; that in September, 2010, the appellant approached the respondent for a loan in sum of Rs. Three Lakhs for a period of six months; that the respondent advance the loan in sum of Rs.2,85,000/- to appellant; that after expiry of six months, the appellant asked for some more time to repay the said loan; that in May, 2012, the appellant had issued the cheque bearing no.154864 dated 18.03.2012 in sum of Rs.2,85,000/- drawn at State Bank of India, Tilak Nagar Branch, allegedly in discharge of the loan liability; that when the respondent presented that cheque for payment, the same was dishonoured with remarks 'Account Inoperative' vide returning memo dated 02.04.2013; that that the respondent thereafter sent a legal notice dated 25.04.2013 to appellant to call upon the appellant to pay the amount of dishonoured cheque but the appellant neither replied that legal notice nor made the payment; that thereafter, the respondent filed the complaint case against appellant under section 138 of NI Act on 21.05.2013.
3. After the institution of the complaint, the respondent adduced her pre-summoning evidence under section 200 Cr.P.C on the basis of which the appellant was summoned and after his appearance, notice u/s 251 Cr.P.C was served upon him on 10.11.2014 to which he pleaded not guilty and claimed trial.
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4. In his support, the respondent examined herself, who was duly cross-examined by Ld counsel for appellant. Then, after closing the evidence of respondent, statement of appellant was recorded u/s. 313 r/w sec.281 Cr.P.C to which appellant adduced evidence in his defence and examined DW-1 Mr. Kunj Bihari, Kanoongo, from SDM Office, Patel Nagar, Delhi. Then, after hearing the arguments advanced by Ld. counsels for the parties, the impugned judgment and order respectively were passed by the Ld. Trial Court, which are being assailed by the appellant in the instant appeal on various grounds, as mentioned in detail in this appeal.
5. The notice of appeal was issued to the respondent and accordingly, the respondent put her appearance before this court alongwith her Ld. counsel. Arguments of both the sides have been heard in detail. I have also perused the entire material placed on record particularly the impugned judgment and order respectively, the contents of the appeal specially the grounds taken therein as well as the record summoned from the Ld. Trial Court. Written synopsis of arguments filed on behalf of respondent have also been perused.
6. It is pertinent to mention that vide order dated 29.08.2016 passed by this court, the application u/s 389 Cr.P.C. of appellant was disposed off with direction to deposit an FDR in sum of Rs.2,00,000/- in the name of Court within 30 days from the date of that order and the operation of the impugned judgment and order was suspended till the disposal of this appeal and the matter was adjourned for 12.10.2017. On 12.10.2017 an application seeking exemption from personal appearance of appellant was moved on the ground that the appellant was suffering from Dengue CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 3 of 10 and that application was allowed for that day with direction to comply with the order dated 29.08.2017 and the matter was adjourned for 24.10.2017. On 24.10.2017, again an application seeking exemption from personal appearance of appellant was moved on the ground that the appellant was out of station for arrangement of funds and that application was allowed for that day and an FDR in sum of Rs.25,000/- was filed by Ld. Counsel for appellant and the appellant was directed to furnish the FDR of the balance amount in compliance of order dated 29.08.2017 and the matter was adjourned for 14.11.2017. In the meantime an application under section 44 of Evidence Act dated 07.11.2017 and another application dated 07.11.2017 seeking stay of order/ judgment dated 14.02.2017 and conviction order dated 07.03.2017 were filed. On 14.11.2017 an application moved on behalf of appellant for recalling order dated 29.08.2017 and for reducing amount of Rs. Two Lakhs to Rs. Seventy Five Thousand was dismissed and one last and final opportunity was granted to appellant to comply with the order dated 29.08.2017 qua deposit of remaining amount, out of total Rs. Two Lakhs and the matter was adjourned for 27.11.2017. On 27.11.2017 an application was moved by the appellant seeking adjournment on the ground that they had challenged the order dated 14.11.2017 passed by this court before the Hon'ble High Court. Keeping in view the fact that there was no stay from the Hon'ble High Court, that application was dismissed. It was further submitted by appellant/ his counsel that the appellant is not in a position to comply with the order dated 14.11.2017 qua deposition of remaining amount in compliance of order dated 29.08.2017. From all this, the unwarranted attitude of appellant is shown and it is clear that the appellant even did not bother to comply with the orders passed by this court. Despite the specific orders dated 29.08.2017 and CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 4 of 10 14.11.2017, the appellant preferred not to comply with the same.
7. The appellant has impugned the judgment and order respectively on the grounds, inter alia, that the same are against the law and facts of this case; that the Ld. Trial Court proceeded with the complaint in stereotype and mechanical manner without application of mind as respondent has failed to produce any written document of loan; that the testimony of respondent recorded before the Ld. Trial Court is not credible; that the respondent avails the facility of EWS and as such, she cannot be said financially sound to disburse any loan; that the respondent sent a legal notice through courier, Jhandewalan Extension and the report of courier is not trustworthy.
8. Per contra, according to Ld. Counsel for the respondent, the main submissions made were that the appeal filed by the appellant is devoid of merits as the appellant has failed to point out any material irregularity and illegality in the impugned judgment and order respectively; that the impugned judgment and order respectively have been rightly passed after examining each and every aspect of the case and there is no need of any interference therein by this court.
9. After giving my thoughtful consideration to the aforesaid rival submissions, I have come to the conclusion that so far as this appeal, as filed by the appellant, regarding impugned judgment of conviction, the same appears to be devoid of merits as there is no material irregularity or illegality in the impugned judgment of conviction. In the well written impugned judgment of conviction, the Ld. Trial Court has rightly come to the conclusion that the respondent has proved her case against the appellant CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 5 of 10 beyond reasonable doubt for offence under section 138 of NI Act and the appellant has failed to prove his defence to the satisfaction of the Ld. Trial Court. In the considered opinion of this court also, all the necessary ingredients to make out a case for offence under section 138 of NI Act have been proved beyond reasonable doubt against the appellant.
10. First of all, as regards to the issue of receipt of legal demand notice by the appellant, the appellant has disputed the correctness of the address on which demand notice was sent to him by respondent. In this regard, in the considered view of this court, Ld Trial Court has rightly observed that in his statement under section 251 Cr.P.C., the appellant has admitted that the legal notice bears his correct address nor the complainant was cross- examined on this point. By merely submitting that demand notice was not received by him, the appellant appears to have made a bald assertion and inspires no confidence. The findings recorded by Ld. Trial Court on this aspect is just and proper and it does not require any interference by this court.
11. The main contention of appellant is that he has not taken any loan from the respondent and the respondent has not been able to prove her financial capacity to advance the loan amount, however, on the other hand during the cross-examination, the suggestion was put to the respondent by appellant that the respondent had advanced the loan of Rs.2,85,000/- to one Ms. Kuldip Kaur and to one Balvir Singh. Therefore, the appellant himself had admitted that the respondent had advanced the loans of similar nature to other persons also.
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12. It is pertinent to mention that the appellant has admitted his signature upon the cheque in question. In his statements u/s 251 Cr.P.C. as well as under section 313 read with 281 Cr.P.C., the appellant stated that though the cheque bears his signature but he cannot tell as to how that cheque came in possession of respondent, however, during cross-examination of respondent, it has come on record that the appellant had started a committee which was being managed by the respondent in light of their friendly relations and that is why the cheques of appellant including the cheque in question had been kept with the respondent. But till date there is no complaint of any kind or any stop payment request qua other cheques, which are said to be in possession of respondent.
13. Thus, it is not in dispute that the cheque in question was signed by the appellant. Mere pleading not guilty and stating that the cheque in question was not issued by the appellant for payment of loan amount to respondent, but signatures thereon not being disputed, would not amount to rebutting the presumption raised under section 139 NI Act. It is also not disputed that the appellant has neither lodged any complaint against the respondent nor has filed any civil or criminal case against her pertaining to misuse of cheque in question, if any, which is a material fact and appellant ought to have taken action for the same but no such action taken by the appellant, as per record. Therefore, this plea as set up is only an afterthought and has no factual basis.
14. Moreover, despite opportunity before the Ld. Trial Court, the appellant has not produced any cogent proof in support of his defence by way of leading defence evidence, which CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 7 of 10 strengthens the case of respondent and proves that the cheque in question was for discharging the legal liability. The defence taken by the appellant is not consistent with his innocence. It was the sole burden and duty of the appellant to prove no liability by raising probable defence when he was defending presumption, which was supporting the dishonoured cheque. The appellant has failed to discharge the onus.
15. There is a judgment dated 07.05.2010 of the Hon'ble Supreme Court of India titled as Rangappa Vs. Sri Mohan passed in Criminal Appeal No.1020 of 2010, wherein it has been held that failure of the accused to reply to the legal demand notice entitles the court to draw an adverse inference against the accused.
16. As regards to the contention of the appellant that the blank signed cheque, which was misused by the respondent in the present case is concerned, the onus to establish the said claim was upon the appellant but once the signatures are admitted, then there is a presumption that the documents were filled before signing the same and in the present circumstances where it was also not the case that the appellant is an illiterate person, this contention also does not inspire confidence in the absence of any evidence to the contrary. Moreover, the appellant has also not disputed sending of legal notice by the respondent at his address.
17. Once the signature on a document are admitted, there is presumption that the same were filled up before being signed and that too in the circumstances, when it is not claimed by appellant that he was illiterate. Further, issuance of cheque in question is not in dispute and deposition of CW-1 clearly shows CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 8 of 10 that the cheque was issued by the appellant against the lawful consideration and as such, under the provisions of sections 139 & 118 of the NI Act, the Ld. Trial Court had rightly presumed that the cheque was drawn and accepted for consideration.
18. Since it is established that the cheque in question was issued by appellant towards lawful consideration, then onus was on the appellant to rebut such presumption and the appellant has failed in rebutting the same.
19. In view of aforesaid, it is clear that all the necessary ingredients of offence under section 138 of NI Act are fulfilled in this case, so, I find no infirmity or illegality in the impugned judgment of conviction and as such, the same is hereby upheld.
20. As regards to the quantum of sentence awarded to the appellant vide impugned order on sentence, I do not find any abnormality or unreasonableness and as such it does not require any interference too and accordingly, the same is also hereby upheld. With this order, the appeal stands dismissed.
21. Appellant is directed to appear before Ld. Trial Court on 21.12.2017 for undergoing the sentence and also for making the payment of compensation to the respondent, as awarded by Ld. Trial Court. As regards, the payment of compensation amount, keeping in view the high-handedness of appellant even before this court and non-compliance of orders dated 29.08.2017 and 14.11.2017 of this court, this court is of the considered opinion that it would be just, fair and reasonable, if the same is paid by the appellant to the respondent @9% per annum simple w.e.f. impugned order on sentence i.e. w.e.f. 07.03.2017 till its CA NO.99/17 Rajinder Singh @Raju V/s Balvinder Kaur Page No. 9 of 10 realisation. This interest has been imposed by this court as to the considered opinion of this court, the payment of compensation has been withheld for a long time due to filing of appeal by the appellant in this matter. In coming to this conclusion, I also find support from judgment of Hon'ble Apex Court given in a case titled as B.M. Basavaraj Vs. Sriniwas S. Datta, Vol. IV (2016) SLT 155 (Supreme Court). In this judgment also, the Hon'ble Apex Court, while deciding criminal appeal filed by the appellant against the respondent and while setting aside orders of courts below, also held that the respondent shall pay to the appellant the amount due with interest @9%.
22. With this order, TCR be sent back forthwith, alongwith the copy of this order, to the Ld. Trial Court for information and asking the Ld. Trial Court to proceed further / forthwith in this matter as per law. Parties are directed to appear before the Ld. Trial Court on 21.12.2017.
23. The Appeal file be consigned to Record Room after necessary formalities as per rules / law.
Announced in the open Court
on this 15th December, 2017 (DR. SHAHABUDDIN)
ASJ/Special Judge(NDPS)
West District/THC/DELHI.
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