Delhi District Court
Harbhajan Wadhwa vs State on 30 July, 2010
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS JUDGE 03
(CENTRAL) DELHI
(1) Criminal Appeal No. 23/07 (Old No. 18/06)
ID No. 02401R0570982006
Harbhajan Wadhwa
s/o late Sh. L.Wadhwa,
R/o C577, New Friends Colony,
New Delhi. .... Appellant
Vs
State .... Respondent
(2) Criminal Appeal No. 24/07 (Old No.30/06)
ID No. 02401R0446182006
Parmod Kumar Kathuria
s/o Bhagwan Dass Kathuria
R/o W43, Rajouri Garden,
Delhi. .... Appellant
Vs
State .... Respondent
(3) Criminal Revision No. 72/07 ( Old No. 21/06)
ID No. 02401R0579662006
Jawahar Lal Nagpal
s/o Sh. R.L. Nagpal,
R/o D2, Neelamber Apartments,
Opposite Sainik Vihar, Pitampura,
Delhi 11 00 34 .... Appellant
CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs.
State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.1of 23
Vs
1. Harbhajan Wadhwa,
s/o late L.C. Wadhwa,
R/o D25, Sector 26 Noida, UP,
2. State .... Respondent
Instituted on : 09/06/2006, 24/05/2006 & 11/07/2006 respectively.
Judgment reserved on: 16/07/2010
Judgment pronounced on: 30/07/2010
J U D G M E N T
1. This order would dispose of Criminal Appeal No. 23/07 Harbhajan Wadhwa v. State, Criminal Appeal No.24/07 Pramod K Kathuria v. State and Criminal Revision No.72/07 Jawahar Lal Nagpal v. Harbhajan Wadhwa. Both the appeals and revision arise from a single judgment of Sh. Ajay Goel, Metroplitan Magistrate in case no. 265/2 titled as ' State v. Harbhajan Wadhwa and anr.' dated 09.05.06 and order on sentence dated 11.05.06, whereby appellants Pramod Kumar Kathuria and Harbhajan Wadhwa were convicted for an offence of cheating under section 420 IPC. Pramod Kathuria was sentenced to RI for three years together with compensation of Rs. One lac only and in default to undergo SI for six months. Harbhajan Wadhwa, due to his limited role of connivance with Pramod Kathuria was sentenced to six months imprisonment, together with compensation of Rs. 50,000/ to be paid to the complainant and in default to CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.2of 23 undergo SI for three months. Jawarhar Lal Nagpal has filed revision seeking enhancement of punishment of Harbhajan Wadhwa.
2. Briefly stated, the facts of the case are that on 11.04.95, Jawahar Lal Nagpal (hereinafter referred to as 'complainant') lodged a complaint with P.S Lahori Gate, to the effect that he is proprietor of firm, M/s. Amit Kumar, having its office at 505, IInd Floor , Krishna Gali, Katra Neel, Chandni Chowk, Delhi. The said firm was engaged in the business of supplying fabrics to various firms.
3. Accused Pramod Kathuria and Harbhajan Wadhwa contacted the complainant in the month of July, 1994 and the accused Pramod Kathuria represented to the complainant that he was authorised representative (Purchase Manager) of M/s. Konica Overseas and that Harbhajan Wadhwa was proprietor of the said concern. The accused persons represented to the complainant that they were interested in purchasing fabrics from him and made assurances that due payment shall be made by them in time. As per complainant's version, the first delivery of fabrics was made to Pramod Kathuria and Harbhajan Wadhwa in the name of M/s. Sunbeam International at A215, Okhla Industrial Area and due payment was made in cash. Then the fabrics were purchased by the accused persons in the name of M/s. Konica Overseas and payments were made by cheque and cash. Thereafter, accused Harbhajan Wadhwa, as proprietor of M/s. Konica Overseas requested the complainant to supply fabrics to his other firms also which he said also belong to him. After the above requests of Harbhajan Wadhwa, accused Parmod Kathuria visited the office of the complainant CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.3of 23 and requested complainant to supply fabrics to their different firms which included Om Industries situated at Gurgaon and Ganpati Overseas at Govind Puri and said addresses were given to complainant by both the accused persons. Thereafter, the complainant supplied fabrics as per request of both the accused persons and the accused persons confirmed the supply and accused Harbhajan Wadhwa assured that payments will be made within a short period of time on behalf of the aforesaid firms. The complainant issued bills against all the deliveries, which were duly received by the accused Pramod Kathuria.
4. It was alleged that the Complainant supplied goods to various firms of accused persons vide various bills, of the value of Rs. 12,16,200/ approximately as the payment of the goods. Due to the complainant both the accused persons in connivance with each other issued and delivered post dated cheques of different banks to complainant. The cheques were signed by accused Pramod Kathuria as the Authorised Representative or Proprietor of the firms. The cheques were issued fraudulently in order to cheat the complainant as at the time of issuing of the cheques the accused persons were fully aware that the cheques are not going to be honoured.
5. When the complainant presented the said cheques in his account, the said cheques were dishonoured due to the reasons "Insufficient Funds" or "Account Closed". Later on the complainant came to know that accused Harbhajan Wadhwa was already a registered proprietor of firm M/s. Konica Overseas Pvt. Ltd. Feeling cheated by the acts of accused persons, complainant lodged the FIR. The accused persons were chargesheeted CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.4of 23 under section 420 IPC and convicted by Ld. Trial Court vide judgment dated 09.05.06 and order on sentence dated 11.05.06.
6. Feeling aggrieved by the said order, the present Criminal Appeals No.23/07 Harbhajan Wadhwa v. State, Criminal Appeal No.24/07 Pramod K Kathuria v. State and Criminal Revision petition No.72/07 Jawahar Lal Nagpal v. Harbhajan Wadhwa have been filed.
7. For the sake of clarity, appeals shall be examined first and revision will be dealt with in the later part of this common judgment.
8. Arguments have been heard at length and records perused. Criminal Appeal No. 24/07 Pramod K Kathuria v. State.
9. A central question that has been raised in both the appeals is whether an offence under Section 420, IPC is made out.
10. To deal with this question, it would be pertinent to enlist the ingredients of offence under section 420 of IPC. Hon'ble Supreme Court in Md. Ibrahim v. State of Bihar, 2009 (8) SCC 751 has observed that the essential ingredients of the offence of "cheating" are as follows : (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.5of 23 be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
11. In Hiralal Harilal Bhagwati v. CBI, 2003 SCC (Cri) 1121, it has been observed that to hold a person guilty of cheating as defined in Section 415 of IPC, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise with an intention to retain the property.
12.To prove dishonest intention of accused persons at the time of making transaction, prosecution has examined ten witnesses.
13.There is ample material on record to prove dishonest intention at the time of offence on behalf of accused Pramod Kathuria. It has been proved by the prosecution that Pramod Kathuria was the proprietor of M/S. Konica Overseas, M/s. Ganpati Overseas and M/s. Om Industries. The cheques were issued by Pramod Kathuria, orders were placed by him and deliveries were received by him. These facts are also not disputed by the accused Pramod Kathuria.
14. Now, the first piece of evidence against the accused Pramod Kathuria is the time of opening of Current Accounts by accused on behalf of different firms in different banks. Different Account opening documents have been adduced in evidence. These show that the Account in Indian Overseas Bank was opened on 07/12/94 on behalf of M/s. Konica Overseas, near about the time when the accused persons had started making default in CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.6of 23 payments. Finding complainant gullible enough to believe their representations, accounts were opened in State Bank of Patiala on 05/01/1995 on behalf of M/s. Ganpati Overseas and in Punjab and Sind Bank on 24/02/1995 on behalf of M/s. Om Industries. This was the time when there were recurring defaults in making payment on behalf of accused. But the accused Pramod Kathuria was still placing orders and receiving huge deliveries. Thus, it shows that accused Pramod Kathuria was dishonestly and without any intention to pay, making the complainant to deliver him goods on false assurances that all the payment shall be made in due course.
15. Secondly, in account opening forms of Indian Overseas Bank, Ex. PW 10/E, State Bank of Patiala, Ex. PW 9/A and Punjab & Sind Bank, Ex. PW 8/B, accused Pramod Kathuria has used altogether different signatures. To argue, that the same has been done inadvertently is devoid of any merit. PW 7, Ms. Deepa Verma, Sr. Scientific officer, FSL, Delhi was examined and tendered her report in evidence as EX. PW 7/1. According to her report, Marks Q1 to Q12 , S1 to S9 and A1 to A19 bear the signatures in handwriting of accused Pramod Kathuria. In the specimen signature of accused Pramod Kathuria, Ex. PW 4/C1 to EX. PW 4/C9, different signatures have been made by Pramod Kathuria. Thus, it has been established that signatures on account opening forms and cheques are those of accused Pramod Kathuria.
16. It is universally accepted that a signature is a personal identitycard of each individual. A person usually employs his name as a signature, whether in CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.7of 23 full form or as an abbreviation. More so because a signature of an individuals identifies him throughout his lifetime. With time, some variations may occur but the style remains the same. Thus, it is unusual to find a person who would be using different signatures in three different bank accounts and specially, when those accounts were opened more or less around the same time. It is not a case where due to lapse of long time, there have occurred some variations in signature of accused. Thus, it leaves no room for doubts and points on all its fours to the dishonest intention of the accused at the time of entering into transactions with the complainant.
17. Thirdly, postdated cheques drawn on Indian Overseas Bank viz. Ex. P14 (Cheque no. 775228 dated 22.02.1995, 775231 dated 25.02.1995, 775230 dated 22021995, 775233 dated 01.03.95, 775234 dated 01.03.95, 775235 dated 01.03.95) were returned with the remarks " Account Closed on 04.03.1995". A perusal of statement of account of M/s. Konica Overseas in Indian Overseas Bank for the period from 1/11/94 to 8/4/95 on record would show that at no point of time from January, 1995 to March, 1995, the balance in Account of M/s. Konica Overseas was more than Rs. 1200/ or Rs. 1100/ , which are telling circumstances for this case, since this was the time when cheques were issued by Pramod Kathuria in favour of complainant of the value as high as about Rs. 1,25,000/, knowing that he did not have sufficient balance in his account to meet payment amount. This fact in itself points glaringly towards the dishonest and fraudulent intention of Pramod Kathuria to cheat complainant Jawahar Lal Nagpal. CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.8of 23
18.Fourthly, Pramod Kathuria was carrying on business in the name of M/s. Konica Overseas. According to Pramod Kathuria, Harbhajan Wadhwa who was already a registered proprietor of a firm by the name of M/s. Konica Overseas Pvt. Ltd., was his client. Knowing that Harbhajan Wadhwa was running a business in the name of M/s. Konica Overseas Pvt.Ltd., Pramod Kathuria used a deceptively similar name for his firm. No explanation has been given as to why such a deceptively similar name was used by Pramod Kathuria for his firm.
19. All these circumstances, coupled with consistent testimony of all the prosecution witnesses prove beyond reasonable doubt, that accused Pramod Kathuria, dishonestly induced the complainant to deliver goods, without any intention to make payment for the same. Thus, the offence of cheating under section 420 IPC is clearly made out against him.
20. As to argument raised by Pramod Kathuria that the transactions give rise to only a civil dispute and not a criminal action, it is apt to refer to a recent decision of the Apex Court in Md. Ibrahim v. State of Bihar, 2009(8) S.C.C. 751, wherein it has been observed that : "there is a growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment.
Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.9of 23 settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See : G. Sagar Suri v. State of U.P., 2000(1) RCR(Criminal) 707 : [2000(2) SCC 636] and Indian Oil Corporation v. NEPC India Ltd., 2006(3) RCR (Criminal) 740 : 2006(2) Apex Criminal 637 : [2006(6) SCC 736]."
21. The present case likewise raises several disputes of a civil nature containing ingredients of criminal offences and thus, had to be tried in accordance with provisions of Indian Penal Code and Criminal Procedure Code.
22. As regards as the argument that the accused Pramod Kumar Kathuria had already been convicted under section 138, Negotiable Instruments Act,1881 and so he cannot be doubly jeopardized and convicted for an offence under section 420, IPC is concerned, Ld. Trial Court has placed reliance on the decision of MM Monga v. UOI, 1996 JCC 590 (Del), wherein it has been held that complaint under section 420, IPC along with Section 138, NI Act is fully maintainable and when the complaint is regarding false inducement and alleged misrepresentation for collection of money then case under section 420, IPC is made out. Accordingly, this argument is not sustainable. CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.10of 23
23. The Counsel for Appellant has further raised contention as to whether parallel proceedings under Sec. 420 IPC and Section 138, NI Act are maintainable. He has placed reliance on Anil Mahajan v. Bhor Industries, 2005(10) SCC 228, G.Sagar Suri v. State of UP, 2000 SCC (Crl.) 513, V.Y Jose v. State of Gujarat, 2009 (1) JCC 410 and R. Kalyani v. Janak Mehta, 2009 (1) JCC 576. However, these decisions are distinguishable on their peculiar facts and circumstance. It must be noted that the mischief involved under both the provisions is different. Cheating involves something more than mere dishonour of cheque.
24. In M/s. OPTS Marketing Pvt. Ltd. v. State of A.P., (A.P.)(FB), 2001(2) R.C.R.(Criminal) 499 ( followed in Bandi Pandu v. Kola Balaji Varma, (A.P.) 2004(3) R.C.R.(Criminal) 13) it was held that if the complainant alleges, and proves that the accused had a dishonest intention not to pay the amount due to him even at the time of issuance of the cheque, and that such issuance of the cheque, which was dishonoured, had caused damage to his mind, body or reputation, the ingredients of Section 420 IPC can be said to have been established, then in such an event, the drawer can be convicted for an offence under Section 420 IPC. Accused's knowledge about nonavailability of funds is unnecessary to be pleaded or proved. The only pleading required is about the dishonest intention on the part of the drawer of the cheque. Dishonour of cheque per se is made an offence under Section 138 of the Negotiable Instruments Act. There is nothing either in Chapter XVII of the Negotiable Instruments Act or in the Statement of Objects and Reasons of the Banking, Public Financial Institutions and CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.11of 23 Negotiable Instruments Laws (Amendment) Act, 1988, under which Chapter XVII is incorporated in the Negotiable Instruments Act, to show that Section 138 of the Negotiable Instruments Act is introduced in lieu of Section 420 IPC in cases of dishonour of cheques. An act done by an individual can be an offence under more than one statute. If a cheque is issued with a view to cheat, in case of its dishonour and nonpayment after notice of dishonour, it would be an offence not only under Section 138 of the Negotiable Instruments Act but under Section 420 IPC also. Complainant need not establish the intention to cheat on the part of the drawer for getting the drawer of the cheque convicted under Section 138 of the Negotiable Instruments Act. Therefore, intention to 'cheat' need not be established in respect of complaints filed under Section 138 of the Negotiable Instruments Act, which is a sine qua non for establishing an offence under Section 420 IPC. Thus it was held that even after introduction of Section 138 of the Negotiable Instruments Act, prosecution under Section 420 IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the good purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the chargesheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, causes damage to his mind, body or reputation." .
25. Similar view has been taken by Hon'ble Delhi High Court in Rajat Mittal v. State, 2002(108) Comp Cas 55 . Since dishonest intention on part of CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.12of 23 accused Pramod Kathuria at the time of transaction has already been established, criminal action is maintainable both under section 420 IPC and Sec. 138, NI Act.
26. As regards the sentence vide order dated 11.05.06, Ld. Trial Court awarded to Pramod Kumar Kathuria Rigorous Imprisonment for three years with a direction to pay an amount of Rs. One Lakh as compensation to the complainant and in default Simple imprisonment for six months. An argument was raised regarding court's power to award imprisonment in default of payment of compensation. A clarificatory order was passed by Ld. Trial Court on 12.05.06 in this regard. It was stated that a sentence can be imposed on accused in default of nonpayment of compensation amount and simultaneously complainant can seek the remedy for recovery of the compensation amount by way of Sec. 421, Cr.P.C. The view of Ld. Trial Court is further fortified by the decision of Hon'ble Supreme Court in Rachpal v. State of Punjab, AIR 2002 SC 2710 and K N Veena v. Muniyappan and anr. 2001 VIII AD (SC) 566, wherein the order of compensation coupled with imprisonment in default of compensation passed by High Court was upheld by Apex Court. Ld. Counsel for Complainant has also placed reliance on recent decision of Hon'ble Supreme court in K A Abbas v. Sabu Joseph & Anr., 2010 VII AD (SC) 73, wherein again the Court's power to award sentence in default of compensation has been upheld.
27. Further, vide order dated 12.05.06, Ld. Trial Court had made nugatory the order of encashment of FDR of value of Rs. Three lakhs of accused CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.13of 23 Harbhajan Wadhwa placed on record, as ordered earlier vide order dated 11.05.06. However, Ld. Trial Court had made the order by way of clarification. Hon'ble High Court of Delhi had granted stay on encashment of FDR and thus the same could not be released. This fact was not brought to the knowledge of Court by the complainant, who merely pressed on for encashment of the said FDR, as a result of which the Court had passed order on sentence incorrectly. Accordingly, the trial court vide order dated 12.05.06 held that in view of this fact, the FDR cannot be released and that part of order mentioned in the sentence passed on 11.05.06 be dealt as nugatory and thus the direction for encashment of FDR was called back. Complainant had argued that a criminal court cannot review its order on its own. However, it is an established principle of law that an 'act of court should injure no one'. And in view of the stay granted by Hon'ble High Court, the order with respect to FDR was in any case rendered nugatory and therefore the clarification issued by Ld. Trial Court had not prejudiced any party and thus this argument merits no indulgence.
28. Thus, the Criminal Appeal No. 24/07 Pramod Kathuria v. State, is dismissed and trial courts order dated 09.05.06 convicting Pramod Kathuria under section 420 IPC is upheld.
Criminal Appeal No. 23/07 Harbhajan Wadhwa v. State CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.14of 23
29. Ld. Counsel for accused Harbhajan Wadhwa, has raised the first argument with reference to charge framed by Ld. MM on 01.07.2000, which reads as under: "That in the year 199495 in the area of PSLahori Gate, you above mentioned both the accused cheated the complainant J.L Nagpal and dishonestly induced the complainant to give you fabrics of the amount as mentioned in complaint mark A and said yarn was given by the complainant to you and thus, committed an offence punishable under section 420 IPC, within my cognisance...."
30.The contention raised with respect to the charge framed is that the offence of cheating is prima facie established only against accused Pramod Kathuria and to implicate accused Harbhajan Wadhwa, a charge should have been framed read with Sec. 34, IPC, showing that accused persons had committed the act of cheating in furtherance of their common intention.
31. However, this argument cannot be sustained in the light of settled law, as reiterated by Apex Court in Dinesh Seth v. State of N.C.T. of Delhi 2008 (11) Scale 470, that in certain situations an accused can be convicted of an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by itself, not sufficient for upsetting the conviction. The Apex Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615. held that the Court should not interfere unless it is established that the accused persons were in any way prejudiced due to the errors and omissions in framing the charges against CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.15of 23 him. A similar view has been reiterated by this Court in Ramji Singh v. State ofBihar (2001) 9 SCC 528.
32. In Sanichar Sahni v.The State of Bihar , (SC) 2009(7) S.C.C. 198, it has been observed that unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.
33. In the present case, accused Harbhajan Wadhwa had been given ample opportunity of being heard and he was fully aware of the charges against him. Thus, no prejudice whatsoever has been caused to Harbhajan Wadhwa due to omission in the charge about the offence having been committed in furtherance of common intention.
34. In order to prove the complicity of accused Harbhajan Wadhwa in this case, prosecution has examined the complainant, Jawahar Lal Nagpal as PW4. The complainant has consistently and categorically deposed that it was Harbhajan Wadhwa who had initially introduced Pramod Kathuria to complainant as Purchase Manager of M/s. Konica overseas and himself as proprietor of M/s. Konica Overseas.
35.Secondly, as per PW4, it was accused Harbhajan Wadhwa in connivance with Pramod Kathuria, who requested the complainant to deliver fabrics to the various firms of Pramod Kathuria and also made assurances from time to time to make payment in due time.
CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.16of 23
36.Thirdly, the first delivery of goods by Complainant as per his complaint was made to the accused persons on behalf of firm M/s. Sunbeam International at A215, Okhla Industrial Area, which is the same address as that of Harbhajan Wadhwa's registered concern, M/s. Konica Overseas Pvt. Ltd. The fact that the office of M/s. Konica Overseas Pvt. Ltd is A215, Okhla Industrial Area has not been refuted by the Accused Harbhajan Wadhwa. This fact is also established by the letterhead of accused Harbhajan Wadhwa, which has been placed on record as Mark 'X'. Mark 'X' also bears the name of the firm M/s. Konica Overseas Pvt. Ltd and the address of the firm is stated as A215, Okhla Industrial Area
37. Fourthly, PW6 SI Yashpal Sharma has stated in his examination and cross examination that accused Harbhajan Wadhwa refused to join investigation when called upon to do so, which gives rise to an adverse inference to be drawn against the accused Harbhajan Wadhwa.
38. Fifthly, till date, even after becoming aware that his trade name M/s. Konica Overseas Pvt. Ltd. has been copied by accused Pramod Kathuria, Harbhajan Wadhwa has taken no recourse to legal proceedings to injunct Pramod Kathuria from using his trade name in the future nor filed any complaint for infringement or passing off of his trade name. There is only one complaint on record Mark 'X', addressed on 03.04.95 to the SHO of P.S. Lahori Gate, but it as shall be noticed at length in following para, is only to submit that accused Pramod Kathuria was working with Harbhajan Wadhwa, but has not been coming since 20 days and that Harbhajan Wadhwa would not be liable for any acts of Pramod Kathuria. CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.17of 23
39. Further, to show that accused Harbhajan Wadhwa knew Pramod Kathuria very well, complainant in his examination recorded on 30.10.03 had deposed in the following terms," Accused Harbhajan Wadhwa stated to me that he is having his concern at Tughlakabad in the name of M/s. Konica Overseas and accused Pramod Kathuria is working there on his behalf and accused Harbhajan Wadhwa gave a letter to this effect......" The relevant extract of Mark 'X' , the document so produced, which is a letter written by Harbhajan Wadhwa to SHO, P.S Lahori Gate dated 03.04.95 is reproduced as follows: ' We had appointed Pramod Kathuria on contact for production of readymade garments on piece rate. This is to bring to your notice that he is not attending his duty since 20 days..' . Thus, Mark 'X' in addition to showing that accused Harbhajan Wadhwa knew accused Pramod Kathuria is also an important admission on behalf of accused Harbhajan Wadhwa showing that he had close business ties with accused Pramod Kathuria and, therefore, the defence version that Harbhajan Wadhwa had no relation with Pramod Kathuria is unworthy of credence and merits outright dismissal.
40. Ld. Defence Counsel has placed reliance on a recent Apex Court decision in Subodh Salaskar v. Jayaprakash M Shah, AIR 2008 SC 3086, stating that even assuming that account was closed subsequently the same would not mean that the appellant had an intention to cheat when post dated cheques were issued. However, the same decision also states that, for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.18of 23 promise or representation. In this case, it has been sufficiently proved on record that the dishonest intention existed from the very beginning. Thus, this argument is devoid of any substance.
41. The argument that accused Harbhajan Wadhwa was not a proprietor of any of the three firms or that he had not issued any postdated cheques or had not received any delivery of goods becomes irrelevant. The culpability of Harbhajan Wadhwa manifests itself in misusing his goodwill, which he had built since 1990's and duping merchants with whom he had become acquainted in his daytoday business dealings. Further, keeping in view the time at which the firms were floated by the accused Pramod Kathuria is also relevant in showing that the firms were opened only for a short time for duping honest merchants and closed soon thereafter. Thus, the argument that since accused Harbhajan Wadhwa had not issued cheques or taken delivery, he is innocent cannot be sustained in the eyes of law. There is no such law that an offence under Section 420, IPC can be made out only if the accused has actually signed cheques or taken deliveries. Persuading merchants in the course of business, making false assurances to them and misusing goodwill of a business is equally punishable and falls within the contours of Sec. 420, IPC.
42.Thus, though role of Harbhajan Wadhwa has been bit subdued in the entire play but nonetheless, he has played an active part in making false representations to the complainant and giving him assurances that payments shall be made.
CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.19of 23
43. In above view, there is sufficient evidence on record to show that accused Harbhajan Wadhwa has actively connived with accused Pramod Kathuria in the offence of cheating and, thus, this appeal against his conviction is also dismissed.
Criminal Revision Petition No. 72/07, Jawahar Lal Nagpal v. Harbhajan Wadhwa & ors.
44. Through his criminal revision petition, the complainant has sought enhancement of punishment given to Harbhajan Wadhwa at par with accused Pramod Kathuria arguing that both the accused persons have actively connived in the commission of offence.
45. A contention has been raised by Ld. Defence counsel, that enhancement of punishment is the sole prerogative of High Court and Sessions Court has no power to deal with the same. However, the said argument cannot stand in the light of observations made by Gujarat High Court in Mahendrabhai Ravjibhai Patel v. Ambalal Prabhudas Patel, 2005 Cri.L.J. 840 : 2005 (2) R.C.R.(Criminal) 732 to the effect that:
" the Revision Application preferred praying enhancement of punishment would be maintainable before the Court of Session having concurrent jurisdiction. Undisputedly, the Court of Session can exercise powers vested with it including powers of enhancement and, therefore, it would not be legally correct to say that only High Court can deal CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.20of 23 with such Revision Application, wherein enhancement of punishment is one of the prayers."
46. As regards the question of enhancement of sentence to the accused no fresh material justifying enhancement of punishment Harbhajan Wadhwa (relying on Jagdish Raj v.State of HP,2004(1) CLJ(HP) 463) has been brought on record. The only role attributed to Harbhajan Wadhwa is that of persuading the complainant to deliver goods to accused Pramod Kathuria and to make false assurances with respect to payment of money for the deliveries. However, no cheques were drawn by him, no orders were placed by him nor deliveries received by him/ This is also evident even from the statement of complainant PW 4. In these circumstances, I find the approach of the learned Magistrate was appropriate. The sentence awarded against Harbhajan Wadhwa is commensurate with his role in the crime.
47. Accordingly, no ground has been made out for enhancement of sentence of accused Harbhajan Wadhwa. It is, however, noticed that the order on sentence passed by the trial court does not specify the nature of imprisonment awarded as punishment to the appellant Harbhajan Wadhwa. In this view, it is to be assumed that the Ld. Trial Magistrate did not intend to award rigorous imprisonment. In appeal, it will not be proper at this stage to change the nature of imprisonment to rigorous imprisonment, therefore, it is clarified that the punishment to be undergone by the appellant Harbhajan Wadhwa shall be simple imprisonment only.
48. In the result, the conviction and order on sentence against both appellants are upheld. The criminal appeals and revision petition are, therefore, CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.21of 23 dismissed, with clarification respecting the nature of punishment qua Harbhajan Wadhwa as mentioned above.
49. As per report of the reader submitted today, on the basis of judicial record, appellant Pramod Kathuria was arrested on 22.4.1996 and released from custody on 21.5.1996 when his bail bonds were accepted. Record indicates that he was again produced from Judicial Custody on 23.7.2003 and appears to have remained in custody till 21.2.2007. There is report of Superintendent Jail available on record indicating that he was released from Jail on 6.4.2007. By these calculations, reader has computed the total period of custody undergone by appellant Parmod Kumar Kathuria as three years, nine months and fourteen days. By this reckoning, he has served the sentence awarded and also the period of custody in case of default of payment of compensation. It may be added it is not clear whether the amount of compensation was deposed/paid or not.
50. In these circumstances, appellant Parmod Kumar Kathuria need not be taken in custody. The bail bonds furnished by him for purposes of this appeal are discharged. However, Ld. Trial Court shall reconfirm these facts and if need be make report to this court and take requisite steps to ensure the appellant serves the sentence fully, if any remaining to be served.
51. As per report of Rader, appellant Harbhajan Wadhwa was released on anticipatory bail and faced trial on bail. After being convicted and sentenced, he was released on bail pending filing of appeal for one month, which was thereafter confirmed by this court. In these circumstances, he is yet to undergo the sentence. Trial Court record shows that the amount of CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.22of 23 compensation was paid to the complainant. He be taken into custody and sent to Jail under appropriate warrant to serve the sentence.
52.A copy of this judgment be given free of cost to the appellants.
53.Trial Court record be returned back along with copy of this judgment forthwith.
54.Criminal appeals file and criminal revision file be consigned to record room.
Announced in open court on
This 30th day of July, 2010 ( R.K. Gauba)
Addl. Sessions Judge 3
Central, Delhi.
CA No. 23/07, 24/07 & CR No. 72/07 Harbhajan Wadhwa Vs. State, Parmod Kumar Kathuria Vs. State and Jawahr Lal Nagpal Vs. Harbhajan Wadhwa & ors. Page No.23of 23