Delhi District Court
Abida vs Durgesh Kr. Singh on 9 March, 2018
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IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI
Criminal Appeal No. 214/2017.
(Registration No. CA/76/2017)
(CNR No. DLSW010026102017)
In the matter of:
Abida
W/o Sh. Abdul Saleem,
R/o Flat No. 289, Pocket 7,
Nasirpur, Dwarka,
New Delhi110045. ... Appellant.
Versus
1. Durgesh Kr. Singh,
S/o Sh. Doodh Nath Singh,
R/o H. No. RZ16/4,
Gali No. 6A, Durga Park,
New Delhi110045.
2. The State
(NCT Govt. of Delhi)
Through its Secretary. ... Respondents.
Date of Institution : 16.03.2017.
Date of Arguments : 17.02.2018.
Date of Decision : 09.03.2018.
Page No. 1 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
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JUDGMENT
1. The present appeal u/s 374 CrPC is filed by the appellant/accused against the judgment dated 30.01.2017 and order on sentence dated 17.02.2017 passed by the Ld. MM (NI Act), West District, Tis Hazari Courts, Delhi, in complaint case no. 5445/16 titled as "Durgesh Kr. Singh Vs. Abida". Vide impugned judgment, the appellant was convicted for offence u/s 138 of The Negotiable Instruments Act, 1881 (in short "NI Act") and vide impugned order on sentence, she was sentenced to simple imprisonment for three months and further directed to pay compensation of Rs.4.20 lacs to the respondent no.1/complainant. It was also directed that in default of payment of compensation, the appellant would further undergo simple imprisonment for two months.
2. The complainant's case was that he was having family terms with the accused/appellant and on 10.02.2010, accused requested for a friendly loan of Rs.3.50 lacs for a period of one year. Thereafter, the loan amount was given to her and at the same time, she executed a promissory note, Page No. 2 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
3 agreement/undertaking on nonjudicial stamp paper of Rs.50/ and also issued a blank signed post dated cheque bearing no. 352887 drawn on UCO Bank, Janak Puri, New Delhi, in his favour. Further, husband of the accused signed the aforesaid documents as a witness. However, after lapse of stipulated period, the cheque was dishonoured for reason "funds insufficient". Further, legal notice dated 05.03.2011 was sent to the appellant, but despite service, the payment was not made by her.
3. Vide judgment dated 30.01.2017, the Trial Court found that the complainant has proved all the ingredients of the offence u/s 138 NI Act against the accused and the accused failed to rebut the presumptions u/s 118 and 139 of the NI Act. Further, it noted that the number of security documents executed by the accused and signed by her husband as a witness rule out playing of any fraud by the complainant and thus, the cheque in question was issued by the accused for discharging her liability.
4. The appellant challenged the judgment of the Trial Court, interalia, on following grounds:
Page No. 3 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
4 4.1 Ld. MM failed to consider that the complainant could not disclose the source of his income;
4.2 Ld. MM did not consider the fact that the complainant has admitted that the cheque in question was handed over to him as blank as security of the said loan and, therefore, the complaint was not maintainable;
4.3 The Trial Court erred in not appreciating that the cheque in question, promissory note and undertaking do not bear the signatures of the accused and these are forged documents; and 4.4 The Trial Court did not consider that the signatures of the accused found on the account opening form, specimen signature card and other bank documents do not match with her alleged signatures on the cheque in question, promissory note and agreement.
5. I have heard the appellant through ld. counsel Sh. R.K. Sharma; the respondent no. 1 through ld. counsel Sh. Avdhesh Kr. Singh and State/respondent no. 2 through ld. Additional PP Sh. Girish Kumar. Record is also gone through.
6. At the outset, reference is required to be made to the Page No. 4 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
5 legal position covering the subject. In a complaint case u/s 138 of the NI Act, the initial burden is on the accused to rebut the presumptions u/s 118 and 139 of the NI Act existing in favour of the complainant. Further, Supreme Court of India in the decision given in the case of "Rangappa Vs. Sri Mohan", Crl.
Appeal No. 1020 of 2010, decided on 07.05.2010, has also clarified that the presumption mandated by Section 139 of the NI Act does indeed include the existence of legally enforceable debt or liability. How this burden can be discharged by the accused, has been explained by Supreme Court of India in the case titled as "Kumar Exports Vs. Sharma Carpets", (2009) 2 SCC 513, in following words:
"18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
Page No. 5 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
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19. ... ... ...
20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant... ... ...
21. The accused has also an option to prove the non existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
7. Thus, it was sufficient for the complainant to prove the Page No. 6 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
7 legally enforceable debt or liability by making a statement that the cheque in question was issued by the accused for returning the friendly loan. He has done so. Though the accused has disputed her signatures on the cheque in question, however, it is evident that the cheque was dishonoured for the reason "funds insufficient" and not because her signatures differ. In view of this Court, merely because the appellant has alleged that cheque does not bear her signature, that in itself is not sufficient to take the case out of purview of Section 138 NI Act. On this issue, ld. counsel for respondent no. 1 has rightly referred the decision of Supreme Court of India given in the case titled "Laxmi Dyechem Vs. State of Gujarat & Others", (2012) 13 SCC 375, wherein it was held as under:
"16. ... ... ... "amount of money ... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signature on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.
16.1 This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts Page No. 7 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
8 of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance, this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied."
8. In the result, there remains no doubt that the presumptions u/s 118 and 139 of the NI Act would be applicable in this case and thus, now it would be examined whether the appellant was able to rebut the said presumptions in the manner explained above in the aforesaid case law.
9. The most important contention of the appellant is that the cheque in question was not issued by her in discharge of her Page No. 8 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
9 legal liability. It is the defence of the appellant that the blank signed cheque in question came in possession of the complainant unauthorizedly and moreover, as per promissory note Ex.CW1/7, the cheque in question was given as a security and, therefore, the appellant was under no legal liability to pay the cheque amount. On this aspect, it can be observed that in the agreement/undertaking Ex.CW1/8, it has been clearly mentioned that the accused has issued a cheque in question in discharge of her liability regarding the loan of Rs.3.50 lacs and moreover, in the said promissory note also, it was clearly provided that in case the accused fails to return the loan amount, the complainant shall be entitled to present the cheque for encashment by filling the loan amount of Rs.3.50 lacs. The following observations of High Court of Delhi in the decision of "M/s Collage Culture & Others Vs. Apparel Export Promotion Council & Another, 2007 (4) JCC (NI) 388, would settle the controversy:
"20. A post date cheque may be issued under two circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under second circumstance, it may be issued for a debt which may become payable in future upon the occurrence of a contingent event.
21. The difference in the two kinds of postdated cheques would be that the cheque issued under first circumstance would be for a debt due, only payment being postponed. The latter cheque Page No. 9 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
10 would be by way of a security.
22. The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event."
10. In view of above, this Court finds no merit in the plea of the defence that the cheque in question was issued for security purpose.
11. As far as issue of forgery of cheque in question, promissory note and agreement are concerned, though ld. defence counsel has rightly pointed out that the signatures of the appellant appearing on the said documents do not match perfectly with the signatures available on the account opening form, specimen signature card, etc. Ex.CW2/A (colly), but it cannot be ignored that the handwriting expert report could not give definite opinion on the ground that the writings/signatures model and design of character formation could not be accounted for standard signatures. Thus, it is clear that there is no finding that the signatures/handwriting is not of the accused and moreover, in view of this Court, the accused was required to Page No. 10 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
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make request for comparing her specimen
signatures/handwriting with her alleged signatures on the said documents to substantiate her defence.
12. Apart from that, the Trial Court has rightly recorded the finding that since the accused and her husband had admitted the signatures of husband as witness on the promissory note and the undertaking and further that these documents were duly notarized, there is no reason to doubt the authenticity of these documents. Moreover, it is noteworthy that no efforts were made by the defence side to show that the notarization was not proper or forged.
13. The another emphasized plea of ld. defence counsel is that the complainant has not been able to establish that the alleged loan amount given in cash was the accounted money and, therefore, there cannot be any legal liability to repay unaccounted cash amount and reference was made to the decision of High Court of Bombay given in the case titled "Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki & Another", 2009 CRI. L.J. 3777. In view of this Court, the said Page No. 11 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
12 plea of defence is misconceived as no effort was made by the defence side to show that the loan amount was unaccounted money. It is evident that in the cross examination though the complainant has mentioned that he is an income tax assessee, but not even a suggestion was put to him that the loan amount was not reflected in his income tax returns. No doubt, as per mandate of Income Tax Act, 1961, the aforesaid loan amount was required to be given through a cheque or bank draft, however, in view of this Court, the advancement of loan in cash ipsofacto would not make the loan transaction illegal. Thus, the aforesaid decision is not applicable to the facts of this case.
14. Further, it is found that the Trial Court has recorded the correct findings that the evidence on record in the form of registered post receipt Ex.CW1/3 and acknowledgement card Ex.CW1/6 and the admitted address of the appellant on the said documents are sufficient to raise presumption of service of legal notice on the accused; further that omission of the appellant in replying the legal notice or taking any legal action against the complainant at any point of time despite knowing that her cheque and other documents have been allegedly forged and Page No. 12 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
13 misused, would only indicate that she did not find anything wrong or suspicious after receiving the legal notice or summons from the trial Court.
15. In view of above, this Court finds that the appellant had failed to rebut the presumptions u/s 118 and 139 of NI Act and her defence is found to be improbable, baseless and perfunctory. In the result, it is concluded that there is no illegality or infirmity in the impugned judgment of the Trial Court and thus, it does not require any interference by this Court. Accordingly, the judgment of conviction dated 30.01.2017 is upheld.
16. Regarding sentence, this Court is of the view that the Trial Court has taken a strict view while imposing the sentence of imprisonment of three months apart from directions to pay compensation amount of Rs.4.20 lacs. Considering that the appellant is a female and has clean antecedents, this Court is of the view that the interest of justice would be served if the appellant is subjected to monetary liability only. Accordingly, impugned sentence order dated 17.02.2017 is modified to the effect that the appellant shall make payment of Page No. 13 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.
14 compensation amount of Rs.4.20 lacs, which is found appropriate considering the cheque amount of Rs.3.50 lacs, within four weeks from today. Further, in default of payment of compensation amount, the appellant shall undergo simple imprisonment for one month and moreover, same shall be recovered as fine as per provisions of Section 421/431 CrPC.
17. In view of above, the appeal stands partly allowed.
18. Trial Court Record alongwith copy of this judgment be sent to the Trial/Successor Court forthwith for information and for executing the sentence, if required.
Announced in the open Court Digitally signed
on 09th day of March 2018. VIVEK by VIVEK
KUMAR GULIA
(total 14 pages) KUMAR Date:
2018.03.09
GULIA 16:13:53
+0530
(VIVEK KUMAR GULIA)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
Page No. 14 of 14. Abida Vs. Durgesh Kr. Singh & Another; CA No. 214/17.