Delhi District Court
Col. Prahlad Rana (Retd.) vs Raju on 14 January, 2013
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ASJ02/SE/SAKET COURT
NEW DELHI
IN RE: Criminal Appeal No. 51/12
Col. Prahlad Rana (Retd.)
Proprietor: Kangra Security
Group (Regd.) No. 1719,
R/o AD28, Sector5, Plot No.3,
Mansarovar, # S, SSC Employees,
Coop. GR.H. Society Ltd.
Dwarka, New Delhi110075.
..... Appellant
VERSUS
Raju
S/o late Sh. Bhola Ram
R/o 20/418, DDA Flats,
Dakshinpuri, New Delhi110062.
..... Respondent
______________________________________________________________
Date of Institution : 14.08.2012
Date when arguments were heard : 10.12.2012
Date of judgment : 14.01.2013
J U D G M E N T
This is an appeal under Section 374 of The Code of Criminal Procedure against judgment and order dated 06.07.2012 and 17.07.2012 respectively passed by Ld. MM, District Courts Saket, New Delhi. CA No. 51/12 1/6
On a complaint lodged by respondent Raju, the appellant was tried for offence punishable U/s 138 of The Negotiable Instruments Act, 1881 (in brief the act) and was sentenced to simple imprisonment for four months. Same was also directed to pay compensation of Rs. 1,20,000/ to the complainant within a period of one month from the date of order i.e. 17.07.2012. In default of payment of said amount, the convict was to undergo simple imprisonment for one month.
It is contended by Ld. Counsel for appellant that impugned judgment and order are illegal and contrary to facts and circumstances of the case. The trial court convicted the appellant merely on the basis of presumption, having been raised U/s 139 of the act, while the complainant was duty bound to prove that the amount for which cheque in question was issued, was legally recoverable from the accused. The complainant failed to show that appellant had any liability towards him. The complainant at one place claimed that the accused purchased vegetables from him in his personal capacity, at another place, that accused purchased vegetables being proprietor of Kangra Security Group and at third place, same claimed that the accused purchased vegetables being proprietor/ owner of Company AIMT, Noida. It is not proved on the record that the accused had any connection either with Kangra Security Group or AIMT, Noida. The bills relied upon by the complainant, are also in the name of AIMT, Noida, with which appellant/ accused had no connection. A case titled as Kumar Export CA No. 51/12 2/6 vs. Sharma Carpet 2009 (1) SCC Crl. 823 is relied upon by the Ld. Counsel. The latter also challenged the genuineness of bills/ cash memo, which are exhibited as Ex. CW1/H (collectively), alleging that as all these bills are numbered consecutively and are of consecutive dates, same are forged. Ld. Counsel representing the appellant pointed out some discrepancies in the case of complainant e.g. in the complaint, the complainant stated that after he supplied vegetables to the accused, the latter made payments in cash as well as through cheques, while in his cross examination on 02.08.2011, it was disclosed by the complainant that the payments were always made by way of cash, except one cheque i.e. cheque in question.
The appellant/ accused, in his statement U/s 313 Cr.P.C admitted the cheque in question, having been signed by him. Taking this point, trial court took support of section 139 of the act, which prescribes as;
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, or any debt or other liability".
No doubt, the accused could rebut presumption stipulated in said section and that by preponderance of probabilities. True, it was not be established on the record that the appellant/ accused was having any connection with AIMT, Noida or he was any director/ officer bearer of CA No. 51/12 3/6 Kangra Security Group. It is deposed on oath by the complainant (CW1) that accused used to come at his shop and purchased vegetables and fruits. Bills were issued to accused either by him (CW1) or by his son. Delivery challans in respect of such purchases were being signed by the staff of accused. He (CW1) filed Income Tax Return, showing the amount of cheque in that return. He used to visit accused at AIMT Noida, to collect payments. The complainant put on file original cheque and postal receipts etc., all Ex. CW1/A to Ex. CW1/H. As discussed above, cheque in question was held by the complainant and as mentioned above, it is admitted by appellant/ accused that same is duly signed by him. Presumption of section 139 NI Act comes into play and accused was rightly presumed to have issued said cheque in the discharge of his liability, in whole or in part. In such a circumstance, it hardly mattered that the complainant failed to prove that the accused had any connection with Kangra Security Group or AIMT, Noida. The accused could not rebut said presumption even by preponderance of probabilities. The latter examined one Ritesh, son of complainant Raju as DW1. Said witness flatly refused to have filled up any column in Ex. CW1/B i.e. cheque in question. Trite it to say that in his statement U/s 313 Cr.P.C, it was explained by the accused that on the top line of said cheque, "payment to Raju Vegetables and Fruits Supplier" had been written by the son of complainant. In this way, the accused miserably failed to rebut said presumption. CA No. 51/12 4/6
It also weighed in the mind of Ld. MM that when accused was served with a notice U/s 251 Cr.P.C, he claimed that cheque in question was stolen from him alongwith 20 other cheques and a complaint was lodged in this regard to the police, while in his statement U/s 313 Cr.P.C, it was stated by accused that said cheque was handed over by him to one Rajesh Sahni i.e. one of his partners in KSG Company and said Rajesh Sahni handed it over to the complainant. The accused did not lead any evidence to establish that same had lodged any such complaint to the police.
It was deposed by the complainant that when cheque in question was returned unpaid with the endorsement "account closed", he sent a demand notice to the accused through his counsel at the address of the accused, but it failed to fetch any response, within prescribed period of 15 days. The legal notice was served through RLAD Courier and also under certificate of posting. The letter was returned with remarks "house found locked, on repeated visits from 27.04.2010 to 03.05.2010", while the process server of the courier sent the process back with remarks "shifted". The letters sent through courier as well as through post are put on file. Address of accused on this process is same as is mentioned by the appellant/ accused in his personal bond filed in the court. In this way, it can safely be presumed that legal notice would have served upon appellant/ accused in its due course.
CA No. 51/12 5/6
It was held by the Apex Court in case K.N. Beena vs. Muniyappan & Anr. (2001) 8 SCC 458 that the presumption U/s 139 of the act could be rebutted by accused by proving the contrary. Mere denial or rebuttal by the accused in his reply to legal notice was not enough. As mentioned above, the accused failed to rebut the presumption raised against him.
After cogitating all this, I find no illegality or infirmity in convicting the accused. The appeal to that extent is thus dismissed.
Announced in the open court (RAJENDER KUMAR SHASTRI)
on 14th January 2012 ASJ02/SE/ SAKET COURT
NEW DELHI
CA No. 51/12 6/6