Delhi District Court
Complainant vs . on 21 September, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
CC No. : 617/1/10
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0179622011
M/s Digs. Export & Travel Enterprises
.............. Complainant
Vs.
Sh. Sanjeev Aggarwal
Sole Proprietor, M/s Winfield Travels,
B25/G3, Bhopra Chowk, DLF, Dilshad Extension,
Sahibabad, U.P.
............. Accused
Date of Institution : 18.10.2002
Plea of accused : Pleaded not guilty
Date of pronouncement : 03.09.2012
Final Order : Convicted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the accused had purchased air tickets worth Rs.3,86,000/ from the complainant and for payment of the tickets charges, accused had issued a cheque bearing No. 103727 dated 17.04.02 drawn on Corporation Bank, Laxmi Nagar, Delhi of Rs.3,80,000/. The cheque bearing No. 103727 was dishonoured on its presentation because of "Insufficient Funds". Thereafter, on 03.09.02 a Legal Notice dated 02.09.02 Ex. CW1/E was sent by complainant through his counsel by Regd. Post vide registered postal receipts CC No. 617/1/10 Page No.: 1 / 20 are Ex. CW1/F and Original AD Cards are Ex. CW1/G. However, despite that the accused failed to make any payment within the statutory period, hence, this complaint.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 21.10.2002.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. Notice was framed against the accused u/s 138 N.I. Act on 14.11.2003.
4. After that on 15.01.2007 the accused was acquitted vide a judgment. The said judgment was challenged before Hon'ble High Court and Hon'ble High Court vide order dated 10.05.2010 set aside the said judgment and remanded back the matter to the trial court for the trial of the case and also granted an opportunity to complainant to lead complainant evidence.
5. In complainant evidence, CW1 Talwinder Singh appeared in the witness box before the court on 03.07.2010, however, as on that day the Original GPA in favour of this witness was not on record, hence, matter was adjourned for filing of the original GPA and after several dates on 09.04.2011, the original GPA was filed which was different from the one, which was filed at the stage of pre summoning evidence. Thus, objection was raised by accused as regards filing of new GPA and the said objection was recorded in the testimony of CW1 Talwinder Singh on 17.12.2011 and the court after deciding the objection took on record the GPA Ex. CW1/B1. On 17.12.2011 the witness also exhibited the other documents upon which he relied in his affidavit i.e., registration certificate Ex. CW1/A, cheque Ex. CW1/C, return memo Ex. CW1/D, legal notice Ex. CW1/E, postal receipts Ex. CW1/F and registered AD cards Ex. CW1/G. On 17.12.2011 the witness was subjected to crossexamine, however, his cross examination was deferred as Ld. counsel for accused stated that he would move CC No. 617/1/10 Page No.: 2 / 20 an application u/s 91 Cr.P.C for production of certain records relevant to the case which are in possession to the complainant. The said application was filed for production of cash receipt book but the complainant vide a reply stated that the said cash receipt book was not traceable, hence, could not be produced before the court. Thus, finally on 25.02.2012 CW1 was crossexamined and CE was finally closed after which statement of accused was recorded on 25.04.2012 and DE was closed on 17.05.2012 as accused declined to lead any Defence Evidence.
6. The questions before the court for the disposal of the complaint are:
(i) Whether the cheque in question was given by the accused to the complainant in discharge of legally enforceable debt?Disputed as the accused in his statement u/s 313 Cr.P.C stated that the cheque in question was issued as advance cheque against which he had also made payment with respect to which two receipts are Ex. CW1/DX and Ex. CW1/DX1, but the remaining receipts are not traceable.
(ii)Whether the cheque in question was dishonored on presentation? Undisputed, as the accused never disputed the fact that the cheque was dishonored and this fact also stands proved from the return memo Ex. CW1/D.
(iii)Whether the reason for dishonor of cheque was insufficiency of funds?Undisputed, as the accused never disputed that the cheque was dishonored because of insufficient funds and this fact also stands proved from the return memo Ex. CW1/D.
(iv)Whether the cheque was presented within the period of 6 months from the date when it was issued?Undisputed, as the accused CC No. 617/1/10 Page No.: 3 / 20 never disputed that the cheque presented in time and this fact also stands proved from Ex. CW1/C wherein date of cheque is 17.04.2002 and return memo is Ex. CW1/D where date of return is 20.08.2002.
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank?Undisputed, as the accused in reply to notice u/s 251 Cr.P.C stated "No outstanding payment was due against me. The cheque was already with the complainant and they had misused the cheque despite of my making the payment. The legal demand notice was received and I had replied the same. I plead not guilty and claim trial." Though, later the accused in statement u/s 313 Cr.P.C stated that no notice was ever served upon him and that the AD cards do not bear his signatures.
(vi)Whether the accused failed to make payment of cheque amount within 15 days of receipt of said notice?Undisputed, as the accused never took the defense that the payment was made by him, rather, the defense that he took was that the cheque was issued in advance with respect to which he had already made cash payment.
7. On the basis of the evidence on record, complainant sought conviction on the ground that the cheque in question was given by accused towards payment of the air tickets purchased by him which got dishonoured on presentation.
8. On the other hand, Ld. Defence Counsel sought acquittal on the ground that CC No. 617/1/10 Page No.: 4 / 20 accused is innocent and that the cheque was issued as advance cheque against which accused had already made payment and the two receipts have been admitted by complainant witness which are Ex. CW1/DX and Ex. CW1/DX1. The Ld. Defence Counsel also challenged the summoning order on the ground that the GPA on the basis of which complaint was filed is missing and could not be produced by complainant despite several opportunities. It was further argued that adverse inference should be drawn against complainant as despite notice u/s 91 Cr.P.C the complainant could not produce cash receipt book from April, 2002 to July, 2002 as the receipt book would have shown that the accused had already made entire payment to the complainant and that there was nothing due. It was also submitted that though initially complainant witness denied receiving of any payment by complainant company after 17.04.2002, later he admitted that two receipts Ex. CW1/DX and CW1/DX1 dated 21.06.02 and 22.06.2002. Lastly, it was submitted that the complainant witness in his crossexamination stated that the payment of Rs.3,50,000/ was towards balance payment against total due of approximately Rs. 9 lakhs which was not initially mentioned in the complaint.
9. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIONS:
In order to prove the allegations, CW1 Talwinder Singh appeared in the witness box as CW1 and filed his affidavit by way of evidence in which he reiterated the allegations made by him in the complaint. The documents produced by the complainant and exhibited are:
(a) Dishonored cheque bearing No. 103727 - Ex. CW1/C.
(b) Returning Memo - Ex. CW1/D.
(c) Legal Notice dated 02.09.02 - Ex. CW1/E. CC No. 617/1/10 Page No.: 5 / 20
(d) Receipts of Registered Post - Ex. CW1/F.
(e) AD Cards - Ex. CW1/G.
(f) Registration Certificate of complainant - Ex. CW1/A.
(g) General Power of Attorney in favour of AR Ex. CW1/B1.
10.PRESUMPTION : The complainant produced the original cheque, return memo, legal notice and postal receipts. He also appeared as witness to support his allegations with his testimony by way of affidavit.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheques are dishonored by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonored by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
An argument was raised as regards the extent of presumption which can be raised in favour of the complainant and against the accused. While the CC No. 617/1/10 Page No.: 6 / 20 complainant submitted that the presumption is as regards legally enforceable debt, the accused submitted that the presumption is as regards existence of debt only and not as regards legally enforceable debt.
However this issue now stands settled in the light of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 that "the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. ...............this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words : "The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of low, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It is further held that : CC No. 617/1/10 Page No.: 7 / 20 "The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted." Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheque in question was issued in discharge of a legally enforceable debt or liability.
11. DEFENCE OF THE ACCUSED : The accused has admitted that the cheque belongs to him and it is also not disputed that the cheque bears the signature of accused. The defence taken by the accused is that the said cheque was issued as advance cheque against which he had already made payment in cash to the complainant.
1. One of the first issue raised by the accused is that the GPA on the basis of which the present complaint was filed which is dated 18.10.2002 could not be produced by the complainant in post summoning evidence and therefore the very basis on which the present complaint was filed by Mr. Talwinder Singh could not be proved and for that reason the complaint is not properly filed and liable to be dismissed.
It is true that the complainant failed to produce GPA which was exhibited in pre CC No. 617/1/10 Page No.: 8 / 20 summoning evidence and fresh GPA was filed in the court which is dated 06.08.2010 and the same is exhibited in post summoning evidence. The said new GPA which is Ex. CW1/B1 is signed by the partners of the complainant firm and duly notorized and on page 2 it confirms and ratifies all the acts and deeds done by Sh. Talwinder Singh in pursuance of the earlier GPA dated 18.10.2002. The said power of attorney which is duly notorized stands proved as per section 85 of Indian Evidence Act and as the said GPA duly authorizes Talwinder Singh to represent the complainant firm in this case and also confirms and ratifies all the acts and deeds done by Sh. Talwinder Singh in pursuance of GPA dated 18.10.2002 (which was exhibited in presummoning evidence as Ex. CW1/B), hence the court is of the opinion that the present complaint has been properly filed by Talwinder Singh under the authority of the complainant firm. The present case is not a case where the earlier GPA has been challenged on the ground that it is not properly authorized or that it lacks some legal requirement, rather, in the present case the GPA filed in presummoning evidence is stated to be lost and the new GPA Ex. CW1/B1, in the opinion of the court, duly authorizes the attorney (Talwinder Singh) to institute and prosecute this case. Merely, because earlier GPA has not been produced, is no ground to come to conclusion that complaint is not filed by a competent person. In this regard the court relies upon judgments titled Citi Bank N.A., New Delhi Vs. J.K. Jute Mills, AIR 1982 Del 487, 488 and Yogesh Singh Sohta Vs. Niranjan Lal, AIR 1981 Del 222.
2. It was submitted by the accused that AR of complainant Talwinder Singh has not been authorized even by the fresh GPA Ex. CW1/B1 to give evidence in the court in the present case.
The crossexamination of CW1 Talwinder Singh in this regard is "I have been CC No. 617/1/10 Page No.: 9 / 20 authorized through Ex. CW1/B1 that I can appear as witness before this court in this case. Attention of the witness is drawn towards Ex. CW1/B1 where there is no mentioned of authorizing the witness to depose in this matter by case number or title before the court".
In this regard the relevant portion of the GPA is para 1 of page 3 and the same is reproduced :
"to consider taking legal action for the protection of firm's rights and /or to recover any debts or other dues of any kind whatsoever and to decide the course of action to be taken including filing of suits and to institute, file and prosecute any suit, application, complaint, criminal complaint or any other proceedings in any court of Tribunal of Authority in respect of or arising out of the firm's business and for such purpose to sign, execute and attest plaints, petitions, complaint, criminal complaint, appeals or other documents that may be necessary therefore and to verify the same; to issue and accept service of notices by or to the firm, to defend any suit or other proceedings that may be filed against the firm and to appoint Advocates, Counsels, Arbitrators, Solicitors or agents and to settle and pay their fee and incur other expenses (emphasis supplied)."
It is clear from this paragraph that AR of complainant Talwinder Singh is duly authorized to institute, file and prosecute any criminal complaint arising out of the business of the firm. Thus, in the opinion of the court he is duly authorized to file the present complaint as well as give evidence in the court, even if the case number of title is not specifically mentioned in GPA. The court would like to point out that GPA i.e., General Power of Attorney, refers to giving of powers in general to attorney, it is a SPA (Special Power of Attorney) where the powers are given/ delegated for a specific purpose (specific case). Thus, this argument of the Ld. Defence Counsel does not hold good in the opinion of the court.
3. The next argument of the accused is that the complainant has merely filed the CC No. 617/1/10 Page No.: 10 / 20 present complaint on the basis of the cheque and that neither any bill, nor, any statement of account has been filed by the complainant in the present case so as to establish liability behind the cheque in question and in absence of such documents the legal liability do not stands proved towards the complainant. As regards this argument, the court is of the opinion that for filing a complaint u/s 138 N.I. Act the complainant is only required to file original cheque alongwith returning memo and a legal demand notice and he is not under an obligation to file all the documents pertaining to legally enforceable debt in discharge of which the cheque was issued. It is the prerogative of the complainant to either prove such documents or not or to simply rely upon the presumption i.e., in his favour as per section 139 of N.I. Act. Merely the failure of the complainant to file bills, invoices and statement of account qua the accused in order to establish liability does not itself absolve the accused of his onus of rebutting the presumption u/s 139 of N.I. Act.
Moreover, it is not the defence of accused that the cheque is without consideration, the defence is that the cheque is an advance cheque which has been misused/ presented by complainant despite receiving the entire payment in cash. The defence of accused that he made cash payment of cheque amount makes it clear that the air tickets were purchased by accused from complainant, the only dispute that remains is whether accused gave the cheque in discharge of consideration of the air tickets or he gave it in advance as security and then paid entire consideration in cash. The fact that there were transactions between the parties has not been challenged by accused, and for that reason non filing of bills and invoices by complainant is immaterial in the present case.
4. Another defence which has been taken by the accused is that in reply to the notice u/s 91 Cr.P.C filed by the accused for production of cash receipt pertaining CC No. 617/1/10 Page No.: 11 / 20 to April, 2002 to July, 2002 it was submitted by complainant that the complainant firm was closed in the year 2005 and that the cash receipt for the year April, 2002 to July, 2002 are not available with the complainant. The accused submitted that an adverse inference should be drawn against the complainant for not producing those receipt which were exclusively in the possession of the complainant and which could have falsified the story of the complainant that the accused was under a liability to pay a sum of Rs.3,80,000/. Though, it is true that adverse inference could be drawn against the complainant for not producing the receipts pertaining to April, 2002 to July, 2002 as per section 114 illustration (g) of Indian Evidence Act, however, the said presumption which is discretionary in nature is not sufficient to rebut the presumption u/s 139 of N.I. Act which is mandatory in nature. Moreover, the fact that complainant firm was closed in 2005 i.e., about 7 years prior to notice u/s 91 Cr.P.C itself explain the reason for not producing the cash receipt books.
Moreover, the same argument can also be raised by complainant against the accused as he also failed to produce receipts of payment other than Ex. CW 1/DX and Ex. CW1/DX1 as admitted by him in this statement u/s 313 Cr.P.C in following words : "I made the payment to the complainant firm vide receipt Ex. CW1/DX and Ex. CW1/DX1 and other receipts which were not traceable with me".
5. The accused has strongly relied upon a piece of evidence which are the two receipts of payment dated 21.06.02 and 22.06.02 which are Ex. CW1/DX and CW1/DX1 and which the complainant witness admitted to be correct and also admitted his signatures on the same.
It was argued by the Ld. Defence Counsel that while CW1 initially stated that no payments were made by accused after 17.04.02, he subsequently admitted the CC No. 617/1/10 Page No.: 12 / 20 two receipts Ex. CW1/DX and CW1/DX1 which are of the month of June, 2002 and he also admitted that the accused had made other payments besides the payments mentioned in those receipts. Thus, it was submitted by the Ld. Defence Counsel that the payment of the cheque amount is partly admitted by the complainant witness in his crossexamination which is sufficient to demolish the case of complainant u/s 138 N.I. Act.
This raises an important question before the court i.e., whether the admission of receipts Ex. CW1/DX and CW1/DX1 by the complainant witness is in itself sufficient to rebut the presumption u/s 139 N.I. Act ? In the opinion of the court these receipts themselves are not sufficient to rebut the presumption u/s 139 N.I. Act as the receipts nowhere state that they were issued against the cheque in question. The receipts are merely acknowledgment of payment made by accused to complainant firm and by themselves are not sufficient to prove that the accused had made payment of the cheque amount to the complainant, as if the accused had actually paid the cheque amount to complainant firm, he would have asked for return of cheque Ex. CW1/C and upon the failure of the complainant to do so, he would have surety approached appropriate authority for redressel of his grievances. It may be noted here that the defence of accused in his statement u/s 313 Cr.P.C is that the cheque in question was an advance cheque which was misused by the complainant as he had already made payment of the cheque amount to the complainant. A perusal of the receipt Ex. CW1/DX reveals that the said payment has been made by cheque and it is not understood by the court that if the cheque in question was actually an advance cheque then why did not the accused simply honour the cheque in question, rather, then paying the same amount partly in cash and partly through other cheques to the complainant. CC No. 617/1/10 Page No.: 13 / 20 Besides this, the accused himself failed to produce other receipts to show entire payment, though, he alleges that he was issued receipts by the complainant firm with respect to all payments made. The non production of other receipts by the accused despite having knowledge of this case in 2003, weakness the defence of accused. The defence of the accused is further weakened by the fact that he was unable to state the dates and amounts in which the entire payment was allegedly made by him to the complainant firm.
Moreover, the complainant witness explained upon being shown the receipts that they were issued towards balance payment against total due of approximately Rs.9 lakhs.
The contradiction in testimony to the effect that firstly CW stated that no payments were made by accused after 17.04.2002 and latter admitted the two receipts of June, 2002, can be a lapse of memory as the crossexamination took place in 2012 i.e., 10 yeas after 2002 and it cannot be expected of a witness that he would know the exact months in which last payment was made by accused. The contradiction in the opinion of the court is well explained by the lapse of 10 long years, between the payment and testimony.
6. The accused also took the defence that legal notice was never received by him as those suggestions were given in cross of complainant witness and this defence was also raised in statement of accused u/s 313 of Cr.P.C. However, this defence has further weakened the defence raised by prosecution, as by raising this new defence at the stage of crossexamination of complainant witness and statement u/s 313 Cr.P.C, the accused contradicted his own previous admission as regards receiving of legal demand notice, made by accused in reply to notice u/s 251 of Cr.P.C.
In reply to legal notice u/s 251 Cr.P.C, the accused on 14.11.2003 stated : "The CC No. 617/1/10 Page No.: 14 / 20 legal demand notice was received and I had replied the same." The accused however turned turtle in 2012 and stated that in his statement u/s 313 of Cr.P.C : "No notice has ever been served upon me demanding the aforesaid amount and AD cards do not bear my signatures". Thus, two absolutely contradictory positions were taken by accused at two different stages of trial which seriously impeaches the credibility of the accused and the defence raised by him.
In this regard the court relies upon latest judgment of the Hon'ble Supreme Court titled Manu Kumar Upadhyaya Vs. State of Andhra Pradesh AIR 2012 SC 2470 wherein Hon'ble Supreme Court observed as under :
"49. Most importantly, the recovery of incriminating articles..................................... It is a settled law that the statement of Section 313 Cr.P.C is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. In this regard, we may refer to some recent judgments of this Court."
"51. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C, the Court can draw an adverse inference against him.
52. In the present case, we are of the considered opinion that the accused has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of the accused would also tilt the case in favour of the prosecution." (emphasis supplied) The Court also relies upon a judgment of Hon'ble Supreme Court titled Manu Sao Vs. State of Bihar (2010) 12 SCC 310 wherein Hon'ble Supreme Court observed as under :
"13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides CC No. 617/1/10 Page No.: 15 / 20 ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to crossexamine him. However, if the statements made are false, the Court is entitled to draw adverse inference and pass consequential orders, as may be called for, in accordance with law.............................."
The Court also relies upon a judgment of Hon'ble Supreme Court titled Ramnaresh & Ors. Vs. State of Chhattisgarh AIR 2012 SC 1357 wherein Hon'ble Supreme Court observed as under :
"21. In terms of Section 313, Cr.P.C, the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313, Cr.P.C is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law..........................."
"22. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313, Cr.P.C is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law." (emphasis supplied) In the present case the court is of the considered opinion that the accused has given incorrect and false answer to the question put to him under Section 313 Cr.P.C with respect to service of Notice upon him and in view of the aforesaid judgments, the court not only draws an adverse inference against the accused but such conduct of accused also tilts the case in favour of the complainant.
7. Lastly, the court would like to point out that a bare perusal of the cheque would show that all the details in the said cheque have been filed by the same pen with which the accused has signed the cheque. Had the cheque been a security cheque, the date on the cheque would not have been mentioned in the same ink, CC No. 617/1/10 Page No.: 16 / 20 and probably this is the reason that accused never alleged that some portion of cheque was blank which was later filed by complainant. The cheque is completely filled and prima facie does not seem to be a security cheque and if it was an advance cheque then there is no reason why the accused would not simply honour the cheque, rather then, making the same amount of payment through cash and other cheques.
12. CONCLUSION : In view of the above discussions and cited judgments, it is clear that the accused has not been able to prove the defence taken by him and also failed to rebut the presumption u/s 139 N.I. Act. Accordingly, all the necessary ingredients to make out the offence u/s 138 N.I. Act stands proved and accused Sanjeev Aggarwal is convicted for the offence u/s 138 N.I. Act.
Be heard separately on point of sentence on 12.09.2012. ANNOUNCED ON 03.09.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/03.09.2012 Certified that this judgment contains 20 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/03.09.2012 CC No. 617/1/10 Page No.: 17 / 20 IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI.
CC No. : 617/1/10 PS : Preet Vihar Offence complained of : 138 N.I. Act Unique Case ID No. : 02402R0179622011 M/s Digs. Export & Travel Enterprises .............. Complainant Vs. Sh. Sanjeev Aggarwal Sole Proprietor, M/s Winfield Travels, B25/G3, Bhopra Chowk, DLF, Dilshad Extension, Sahibabad, U.P. ............. Accused Date of Conviction : 03.09.2012 Date of Sentence : 21.09.2012 ORDER ON SENTENCE
Accused Sanjeev Aggarwal was convicted for offence under section 138 of the Negotiable Instruments Act on 03.09.2012.
Arguments on sentence were heard at length on behalf of both the parties.
Punishment prescribed by Law: As per section 138 of the Negotiable Instruments Act, the punishment prescribed is imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or both and in cases which are tried summarily, the punishment prescribed is imprisonment for a term which may CC No. 617/1/10 Page No.: 18 / 20 extend to one year or with fine which may extend to twice the amount of cheque or both.
The cheque amount in the present case is Rs.3,80,000/ hence as per section 138 of the N.I. Act and in view of judgment of Hon'ble Supreme Court titled R.Vijayan Vs. Baby AIR 2012 SC 528 (para 12), this court has the power to impose fine equivalent to twice the cheque amount which in the present is Rs.7,60,000/.
From the said fine, the court can compensate the complainant under section 357 (1) (b) of Cr.P.C for the loss or injury caused to him and can also apply a part of the fine in defraying the expenses incurred in the prosecution by the complainant u/s 357 (1) (a) Cr.P.C.
Arguments : Both the parties instead of arguments on point of sentence submitted that they have compromised the matter for a sum of Rs.4,80,000/ and that the accused has brought two drafts of total sum of Rs.3,80,000/ and Rs.1,00,000/ cash for payment today itself. AR of complainant has been exempted today on application through Ld. Counsel Sh. Satish Tamta and Ld. counsel states that he is ready to give statement on behalf of his client as regards the compromise. Thus, the statement of Ld. counsel for complainant is recorded in which he has received the amount of Rs.4,80,000/ and prayed for withdrawal of complaint. Order on Sentence: As the accused has already been convicted for offence under section 138 of N.I. Act in this case on 03.09.2012, therefore, withdrawal of complaint cannot be permitted by the court at this stage, however, in view of compromise between the parties, the court hereby sentences the accused to pay fine of Rs.4,80,000/ only, which shall be paid as compensation to the complainant u/s CC No. 617/1/10 Page No.: 19 / 20 357 Cr.P.C. Amount has been paid today itself by the accused to complainant by two drafts of total sum of Rs.3,80,000/ and Rs,1,00,000/ in cash.
Nothing remains to be adjudicated in the present case. Surety stands discharged. Original documents, if any, be returned.
File be consigned to record room.
(S.P.S. LALER) MM06(East)/KKD/21.09.2012 CC No. 617/1/10 Page No.: 20 / 20