Delhi District Court
Sagar Gupta vs Amit Saini on 26 November, 2018
IN THE COURT OF SH. RAJESH KUMAR SINGH ,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
CA 287/2018
CNR NO. DLST010048642018
Sagar Gupta .......... appellant
s/o Sh. Ganga Parshad
r/o H. No. 88, Masjid Moth, New Delhi
versus
Amit Saini .......... respondent
s/o Sh. Tek Chand Saini r/o H. No. 117A, Masjid Moth, New Delhi - 110049 Date of Institution : 25th July 2018 Date of arguments : 03rd November 2018 Date of Judgment : 26th November 2018 J U D G M E N T
1. Appeal is directed against the judgment dated 17.05.2018 and order on sentence dated 27.06.2018 passed by the Court of Ld. MM02 NI Act/South, Saket Courts in CC No. 2226/2017 titled Amit Saini vs Sagar Gupta u/s 138 NI Act. Appellant was the accused before Learned Trial Court and he faced the trial in respect of cheque Ex. CW1/B bearing no. 218401 dated 13.02.2017 drawn on Axis Bank Ltd., Hauz Khas branch for Rs. 2,00,000/ and cheque Ex. CW1/C bearing no. 153609 dated 15.02.2017 drawn on J & K Bank, South ExtensionII for Rs. 1,00,000/. cheque Ex. CW1/B was returned unpaid vide return memo Ex. CW1/D dated 16.02.2017 on the ground of "insufficient funds". The cheque Ex. CW1/C was returned unpaid vide return memo Ex. CW1/E dated 17.02.2017 Sagar Gupta vs Amit Saini page no. 1 of 7 CA No. 287/18 on the ground of "insufficient funds". The appellant was convicted in respect of both cheques. He has been sentenced to SI for 11 months and a fine of Rs. 3,50,000 lakhs out of which a sum of Rs. 3,45,000/ is to be paid to the complainant as compensation and Rs. 5,000/ is to be deposited with DLSA, South. In default of payment of the fine the appellant has to undergo SI for five months.
2. The case of the complainant/respondent in brief is that he had friendly relations with the accused. The accused approached him in February 2016 for a friendly loan of Rs. 3,00,000/. The accused promised to pay interest @ 10% per annum and also promised to return the amount within a year. The complainant gave a sum of Rs. 2,70,000/ to the accused after deducting sum of Rs. 30,000/ towards interest for one year. The accused issued the cheques Ex. CW1/B and Ex. CW1/C which were dishonoured on presentation. At the time of taking the loan, the accused had also executed promissory note Ex. CW1/A dated 13.02.2016 for Rs. 2,70,000/. The complainant issued legal notice Ex. CW1/F dated 20.02.2017. The legal notice was sent by speed post against receipts Ex. CW1/G and Ex. CW1/H. The tracking report shows that the legal notice sent against receipt Ex. CW1/G was delivered. The accused did not reply to the legal notice and also did not make the payment within the statutory period. Hence, the case was filed.
3. In the notice u/s 251 Cr. PC, which was framed against the accused by Learned Trial Court on 26.05.2017, he stated that the complainant had assured Sagar Gupta vs Amit Saini page no. 2 of 7 CA No. 287/18 to give him a loan on interest but on the very next day of receiving the cheques, he refused to give the loan. The complainant also refused to return the cheques. He claimed that he had no liability in respect of the cheques.
4. Vide order dated 26.05.2017, Learned Trial Court decided to try the matter as a summons case and on the oral prayer of the accused, liberty was granted to him u/s 145 (2) NI Act to crossexamine the complainant witnesses. In support of his case, complainant examined himself as CW1 and Sh. Ram Kirtan as CW2. The complainant deposed on the line of the averments made in the complaint. CW2 had filed his affidavit Ex. CW2/A towards his examination inchief. He deposed that he knew the complainant as well as the accused. He further stated that in February 2016, the complainant gave Rs. 2,70,000/ to the accused as loan and the accused executed the promissory note Ex. CW1/A in his presence. He also deposed that the accused had given a cheque for Rs. 2,00,000/ and a cheque for Rs. 1,00,000/ to the complainant. Later on, he came to know that the cheques have been dishonoured. CW1 as well CW2 were crossexamined by the accused.
5. Statement of the accused was recorded u/s 313 Cr. PC r/w 281 Cr. PC on 21.04.2018. In answer to question no. 1, he stated that the complainant got the pronote Ex. CW1/A signed from him and also to the cheques on the pretext that he would give the loan on the next day but he refused to give the loan and also did not return the cheques and the pronote. In answer to question no. 2, he stated that he had not issued the cheques in discharge of any legal liability. He Sagar Gupta vs Amit Saini page no. 3 of 7 CA No. 287/18 signed the cheques and the pronote in a hurry. On the next day, he approached the complainant but the complainant did not give the loan. He asked the complainant several times to return the documents but the complainant did not return the same. In answer to the question no. 3 regarding legal notice, he stated that he had not received the legal notice. He opted for defence evidence and examined himself as DW1. In his examinationinchief, he narrated the same facts as stated by him in his examination u/s 313 Cr PC. In the cross examination he admitted that he and the complainant were residing in the same locality and that he knew the complainant. He also admitted that he had approached the complainant for the loan. According to him, he was supposed to pay interest @ 5% per month. Regarding the reason for the loan, he stated that he required the same for his business but he did not take the loan from any other person. In respect of CW2 Sh. Ram Kirtan, he stated that he did not know him. On being asked about any complaints made against the complainant, he stated that he did not make any complaint when the complainant did not return his documents. He also did not issue any instruction to the bank to stop the payment of the cheques. In the crossexamination he admitted that he had received the legal notice though, he had denied this fact at the earlier stage.
6. In the grounds of appeal, it is stated that the complainant has failed to show that he had the source and the capacity to pay a sum of Rs. 2,70,000/ to the accused. There is difference in the handwriting on the cheques and there is possibility of forgery. The presumption cannot take place of proof.
Sagar Gupta vs Amit Saini page no. 4 of 7 CA No. 287/18
7. I have considered the arguments of Ld. Counsel for the complainant. Ld. Counsel for the appellant/accused was given opportunity to submit oral arguments for which he was not prepared on 03.11.2018. He agreed that he would file written submission but no written submission had been filed by him. I have perused the record including Trial Court record.
8. Even presuming that the cheques and the pronote were only signed by the accused, still the presumption u/s 139 r/w Section 118 NI Act arose against him which he was required to rebut by raising of plausible defence. In this regard reliance is placed on the judgment by Hon'ble Supreme Court in the matter of Rangappa vs Srimohan (2010) 11 SCC 441 and by our own Hon'ble High Court in the matter of Sanjay Arora vs Monika Singh 2017 SCC Online Del. 8897 as well as in the matter of M/s Jammu and Kashmir Bank vs Abhishek Mittal 2011 SCC Online Del. 2444. In Rangappa's case (supra) Hon'ble Supreme Court held that the accused has to disclose a probable defence which has to be more than a plausible explanation.
9. Accused has admitted that he approached the complainant for a loan. According to him he wanted a loan of Rs. 2,00,000/. According to the complainant, the amount actually paid by him was Rs. 2,70,000/ . There is no huge difference between these two amounts. Accused is questioning the capacity of the complainant to give the loan. If the complainant was not financially sound, why would the accused approach him for a loan of Rs. 2,00,000/? According to the accused, he approached the complainant for a loan Sagar Gupta vs Amit Saini page no. 5 of 7 CA No. 287/18 in August 2016. The accused did not issue any instruction to his banks to stop the payment of the cheques though, he claims that the complainant did not give the loan and also did not return the documents despite repeated demand. In ordinary course, he would have given the instruction to the bank to stop the payment and would have also taken legal action against the complainant. There is presumption of service of the legal notice u/s 27 of the General Clauses Act. The notice sent vide receipt Ex. CW1/G was delivered as per the tracking report Ex. CW1/I. Accused has also admitted in his crossexamination that he received the legal notice though, he had denied this fact in his statement u/s 313 Cr. PC. Adverse presumption is to be drawn against the accused for not sending the reply to the legal notice. There are no material discrepancies in the statement of CW1 and CW2 which may help the accused in rebutting the presumption against him. His own statement as DW1 is also not sufficient to rebut the presumption against him. Though the complainant had deducted Rs. 30,000/ towards interest while giving the loan in cash, he had not actually received this amount from the accused and the payment of the principle as well as the interest would have been complete only on clearance of both cheques for a total amount of Rs. 3,00,000/.
10. The accused completely failed to discharge the initial presumption against him so as to shift the burden on the complainant to prove his case beyond reasonable doubt. There is no merit in the grounds of appeal qua the judgment dated 17.05.2018. The compensation awarded by Learned Trial Court Sagar Gupta vs Amit Saini page no. 6 of 7 CA No. 287/18 is in consonance with the judgment by Hon'ble Supreme Court in the matter of R. Vijayan vs Baby (2012) 1 SCC 260. The direction given by Learned Trial Court to deposit amount of Rs. 5,000/ out of the fine to DLSA is not supported by the provisions of Cr. PC. Therefore, modification is required in this regard. The appellant/accused appeared before Learned Trial Court without delay. He also participated in the proceedings without making any attempt to delay the same. There is no allegation of previous conviction. The sentence of imprisonment for 11 months is on the higher side.
Order
11. In view of above discussion, the appeal is dismissed in respect of judgment dated 17.05.2018 whereby the appellant was convicted. The appeal is partially allowed in respect of order on sentence dated 27.06.2018. The appellant/convict is sentenced to SI for three months and fine of Rs. 3,50,000/ out of which Rs. 3,45,000/ be paid to the complainant as compensation and the balance amount of Rs. 5,000/ be retained by the State . In default of payment of fine, the convict shall undergo SI for five months.
12. Trial Court Record be returned to the Trial Court concerned alongwith copy of this judgment.
13. Appeal file be consigned to record room.
(announced in the Digitally signed by (Rajesh Kumar Singh ) RAJESH open Court on RAJESH KUMAR KUMAR SINGH Special Judge (NDPS) 26th November 2018) South District: Saket Date: SINGH 2018.11.26 15:31:23 +0530 Sagar Gupta vs Amit Saini page no. 7 of 7 CA No. 287/18