Delhi District Court
Sh. Surjeet Singh vs Sh. Umesh Pandey on 31 May, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Appeal no. 57/2/14
U.I.D. N0. 54146/2016
P.S. Rajouri Garden
Sh. Surjeet Singh
S/o Sh. Amrik Singh
R/o G9/15, First Floor,
Sector - 16, Rohini,
Delhi 110085
......... Appellant
Versus
Sh. Umesh Pandey
S/o Sh. Rajbir Pandey
R/o C155, Ragubir Nagar,
New Delhi 110027
....... Respondent
Date of filing: 01.12.2014 Date of arguments: 29.05.2017 Date of order: 31.05.2017 J U D G M E N T
1. The present appeal is filed by the appellant/accused under Section 374(3) Code of Criminal Procedure (hereinafter called Cr.P.C.) against the impugned judgment dated 30.10.2014 and order UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 1 of 13 on sentence dated 03.11.2014 passed by the court of Ms. Meenu Kaushik, Ld. Metropolitan Magistrate, Rohini Courts, Delhi.
2. The respondent/complainant filed a criminal complaint for commission of the offence under Section 138 of Negotiable Instrument Act. The complainant led presummoning evidence and thereafter, accused was summoned to face the trial. The notice for commission of the offence under Section 138 NI Act was served upon the accused on 02.08.2007 to which he pleaded not guilty and claimed trial. After conclusion of trial, the accused was convicted for the offence punishable u/s 138 of NI Act.
3. The appellant/accused being aggrieved by the said judgment of conviction and order of sentence has filed the present appeal. In the present appeal, it is stated that the appellant/accused is of an old age, senior citizen, handicapped person and financially unsound and is working on a temporary basis. It is stated that the cheque was given to Ms. Rakhi, sister in law of accused for chit fund. That the cheque in dispute was not issued to the complainant. UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 2 of 13 That the accused never purchased the said stamp papers filed by the complainant. It is stated that the accused has not been given opportunity to prove his defence by producing the real evidence. It is stated that the present case is the manipulation of the complainant and her husband. That the trial court has not follow the cardinal principle of law. That the date and the particulars of the cheque were filled with different pen and the signatures are of the different pen. It is prayed that the judgment dated 30.10.2014 and the order on sentence dated 03.11.2014 be set aside.
4. The notice of the appeal was issued to the respondent. The trial court record was also summoned. The respondent put the appearance through counsel and strongly opposed the appeal.
5. I have carefully perused the material on record and heard the Ld. Counsel for both the parties. Ld. Counsel for appellant has also filed on record written arguments. Ld. Counsel for appellant has prayed that in view of the grounds of appeal, the appellant/accused be acquitted for the commission of the alleged offence. On the other UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 3 of 13 hand, it is submitted by Ld. Counsel for respondent that there is no illegality and infirmity in the judgment passed by the Ld. Trial Court and the appeal be kindly dismissed.
6. A criminal complaint for commission of the offence under Section 138 of N I Act was filed by the complainant on the ground that the appellant/accused had borrowed a loan of Rs. 49,000/ on 01.04.2004, Rs. 50,000/ on 20.05.2004, Rs. 24,000/ on 23.05.2005 and Rs. 15000/ on 10.01.2004. It is stated that the accused had borrowed a total loan of Rs. 1,38,000/ from the complainant returnable on the interest @ 3% per month. That for the security of loan amount, the accused had handed over the papers of his house. Thereafter, accused executed two affidavits dated 01.04.2004 and 20.05.2004 in favour of complainant and got returned back his papers from complainant. That the accused in discharge of his legal liability had issued cheque bearing no. 555863 dated 30.10.2005 for a sum of Rs. 40,000/, cheque bearing no. 555864 dated 30.10.2005 for a sum of Rs.40,000/ and cheque bearing no. UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 4 of 13 555865 dated 30.10.2005 for a sum of Rs.43,000/, all drawn on State Bank of India, Raghubir Nagar, New Delhi. That the cheques issued by the accused were dishonoured on being presentation due to "funds Insufficient" on 20.04.2006. That legal notice dated 03.05.2006 was served upon the accused but despite service, he has failed to make the payment.
7. The Ld. Counsel for the appellant has contended that there was no monetary transaction between the complainant and the appellant/accused and the cheques were handed over by the appellant/accused to his sister in law Ms. Rakhi as security purpose for the committee which has been misused by the complainant. To prove this defence, appellant/accused has examined DW1 Sh. Harpreet Singh. The DW1 Sh. Harpreet Singh in his examination in chief has deposed that the cheques Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5 were signed by the appellant/accused and the name were not mentioned. He further deposed that three cheques were given to Ms. Rakhi, who was party to the agreement Ex. DW1/1. The DW1 during UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 5 of 13 his cross examination has admitted that there were monetary transaction between the accused and the complainant. It is also admitted by DW1 Sh. Harpreet Singh that appellant/accused owed some amount to the complainant, and in lieu of that, three cheques were issued to him by the complainant. The defence witness has admitted the existence of the monetary transaction between the complainant and the accused. It was also specifically admitted by the defence witness that the cheques in dispute was issued by the appellant/accused in discharge of his liability towards the complainant. DW2 Sh. Harish Kumar examined by the appellant/accused is not helpful to prove this defence because during his cross examination, this witness has deposed that he has no knowledge about the cheques and transaction between the parties.
8. It is pertinent to mention that the appellant/accused has examined himself as DW3. The part examination in chief of DW3 was recorded but could not be concluded despite grant of sufficient opportunities. This deposition of DW3 shall not be considered as UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 6 of 13 evidence. The appellant/accused during his part deposition has stated that he was not knowing any person by the name of Sh. Umesh Pandey, who is complainant in the present case. This testimony of the appellant/accused is contrary to the deposition of DW1 examined by him. The DW1 examined by the appellant/accused in his defence is independent witness, who stood test of cross examination. Therefore, there is no reason to disbelieve the testimony of DW1. In view of the admission of the DW1, during his cross examination regarding the issuance of the cheques in favour of the complainant by the appellant/accused, the defence raised by the appellant/accused regarding absence of any monetary transaction is not tenable in the eyes of law.
9. The appellant/accused has contended that the trial has been conducted in violence of Section 326 Cr.P.C. as the evidence in the present matter was recorded by the predecessor of the Ld. Trial Court.
10. The object of Section 326 Cr.P.C. is to prevent delay and UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 7 of 13 harassment and to save the costs of a fresh inquiry or trial when a judge or Magistrate has to relinquish his office after hearing it in part. This Section provides that the judge or Magistrate to whom the case is transferred or the judge or Magistrate who succeeds the prior judge or Magistrate, may pronounce judgment on the evidence recorded by his predecessor, supplemented by the evidence recorded by him. The Section 326 does not create any bar of passing the judgment on the basis of the evidence recorded by predecessor in a summon or warrant trial cases. Section 326 Cr.P.C. prohibits the passing of the judgment on the basis of the evidence recorded by the predecessor only with regard to the summary trial of the cases. The applicant/accused is not tried summarily but he had faced the trial of a summons case. Therefore, this contention raised by the appellant is not tenable in the eyes of law.
11. The appellant/accused has also attempted to raise the shadow of doubt upon the documents Ex. CW1/2 on the ground that the date mentioned in the affidavit is 20.05.2004, whereas the date of UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 8 of 13 purchase of affidavit is 21.05.2004. The mentioning of the wrong date on the document Ex. CW1/2 does not raise shadow of doubt upon its admissibility or validity as the signature on Ex. CW1/2 is proved on record by the complainant. In view of the existence of the signature of the appellant/accused on the document Ex. CW1/2, the contradiction regarding the date is not sufficient to throw away this document.
12. It is argued by the Ld. Counsel for appellant/accused that the source of the payment has not been disclosed or proved by the complainant on record. It is submitted in the absence of the source of the payment allegedly made to the accused, the case filed by the complainant is liable to be dismissed. Ld. Counsel for the appellant/accused in support of his arguments has relied upon judgments of Hon'ble Supreme Court reported as C. Antony Vs K G Raghavan Nair AIR 2003 Supreme Court 182 and M/s Pine Product Industries & Another Vs R P Gupta & Sons & Another 2007 (1) DCR 417.
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13. In the present case the applicant/accused has admitted his signature on the dishonoured cheques Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5. The complainant has also proved on record the documents Ex. CW1/1 and Ex. CW1/2. The documents Ex. CW1/1 and Ex. CW1/2 executed by the appellant/accused bears his signature regarding the transaction of the payment between the complainant and the accused.
14. In view of the existence of the Ex. CW1/1 and Ex. CW1/2 and the admitted signature of the appellant/accused on the dishonoured cheques Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5, the Ld. Trial Court has raised the presumption under Section 118 and 139 of the Negotiable Instrument Act.
15. Section 118 N.I.Act raises a presumption with regard to the passing of the consideration of the cheque and the Section 139 N.I.Act raises a presumption that the holder of the cheque had issued the cheque wholly or in part discharge of any debt or liability. Ld. Trial Court in this regard has rightly relied upon one judgment of UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 10 of 13 Hon'ble Supreme Court reported as Rangappa Vs Sri Mohan, AIR 2010 SC 1898 wherein it has held as under: "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instrument Act has to be raised by the Court in favour of the complainant".
16. In view of the existence of the documents Ex.CW1/1 and Ex. CW1/2 and the admitted signature on the cheques Ex. CW1/3, Ex. CW1/4 and Ex. CW1/5, the complainant has discharged the onus to prove the payment of the consideration amount. The onus was upon the appellant/accused to rebut both the presumption. It is well settled law that the presumption under Section 118 and 139 of N I Act is rebuttable presumption and onus to rebut the said presumption is upon accused. There is no material on record, which rebut this presumption raised under Section 118 and 139 of N.I. Act. Therefore, this contention raised by the appellant/accused is not tenable in the eyes of law.
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17. The perusal of the impugned judgment reveals that the Ld. Trial Court has given cogent reasons in consonance with the settled principle of the law to arrive at a conclusion that the accused has committed the offence under Section 138 of the Act. There is no illegality or infirmity in the impugned judgment dated 30.10.2014 passed by the Ld. Trial Court. None of the grounds mentioned by the appellant/accused are sustainable in the eyes of law. The Ld. Trial Court has already taken a lenient view while sentencing the appellant/accused. Accordingly, the appeal filed by the appellant/accused is dismissed. The judgment dated 30.10.2014 and order on sentence dated 03.11.2014 passed by the court of Ms. Meenu Kaushik, Ld. Metropolitan Magistrate, Rohini District Courts, Delhi, is upheld.
18. Attested copy of a judgment be given to the appellant/convict free of cost. The Ld. Trial Court has sentenced the convict for simple imprisonment till rising of the court, and further, ordered to pay compensation to the complainant for an amount of UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 12 of 13 RS.1,50,000/ under Section 357 (3) Cr.P.C. In default of the payment of compensation, convict shall undergo further simple imprisonment for a period of three months.
19. The appellant/convict be taken into custody to serve the sentence of imprisonment till raising of the court.
20. The appellant/convict is granted 30 days time to make the payment of compensation in terms of the order on the point of sentence passed by the Ld. Trial Court on 03.11.2014. The parties shall appear before the Ld. Trial Court on 01.07.2017.
21. Appeal file be consigned to record room after completion of necessary formalities.
22. Trial Court Record be sent back along with copy of this judgment.
Announced in the open court today i.e. 31st May, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.54146/2016 Surjeet Singh Vs Umesh Pandey 13 of 13