Delhi District Court
Mahinder Pal vs Sh.Ranjan Kumar on 21 December, 2015
IN THE COURT OF SH.ATUL KUMAR GARG, ASJ - 03,
CENTRAL, TIS HAZARI COURTS: DELHI
CA No. 61/15
Mahinder Pal
S/o Sh.Ram Singh
R/o C-253, Millenium Apartment
Sector-18, Rohini,
Delhi.
Also at :
C/o LIC of India
Internal Audit Department
Laxmi Insurance Building
2/2, Asaf Ali Road,
New Delhi-110002.
... Appellant
Versus
Sh.Ranjan Kumar
S/o Sh. Basudeo Prasad
R/o Q. No. 1196,
M.S. Flats, Timarpur,
Delhi-110054.
... Respondent
Date of institution : 05.11.2015
Date of arguments : 10.12.2015
Date of Decision : 21.12.2015
CA No. 61/15
Mahinder Pal Vs. Ranjan Kumar Page No.1
JUDGMENT
1. Appellant has preferred the present appeal assailing the judgment and order sentence dated 24.9.2015 and 5.10.2015 passed by the ld. Metropolitan Magistrate in complaint case No.CC-817/1 titled Ranjan Kumar Versus Mahinder Pal, whereby he was convicted for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter to be referred as the Act) and sentenced him to undergo rigorous imprisonment for one year and directing him to pay the compensation of Rs. Twenty lacs including the cheque amount. He has assailed the said order stating that ld. Magistrate has committed a grave jurisdictional error by failing to take into consideration the evidence on record led by the parties, particularly the evidence of the appellant/ accused, who appeared as DW1 has categorically stated that the cheque in question bearing No.028790 was given to the complainant way back in the year 2005 but the complainant represented CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.2 that the said cheque had got misplaced. Thereafter, believing the words of the complainant to be true and genuine, appellant issued another cheque as regard to which settlement had already been taken place in the court of Sh. Viplav Dabas, ld. MM. Ld. Magistrate while passing the order failed to take into consideration that the complainant could not elaborate as to how he disbursed the money to the appellant. Ld. Magistrate did not take into consideration the fact that the money transaction of Rs.Seventeen Lacs which allegedly took place between the parties was unaccounted one and as such, accused could not be fastened with any criminal liability. It was incumbent upon the complainant to prove its case beyond reasonable doubt as presumption under Section 118 of the Act are rebuttable. Ld. Magistrate has not taken into consideration that agreement cum undertaking dated 19.1.2009 allegedly executed between the parties is vague in itself and cannot be used to fasten the liability upon the accused. He made prayer CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.3 that the impugned judgment and order on sentence be set aside and recalled.
2. Upon filing of the revision petition, respondent was given notice to appear and trial court record was summoned. As per the trial court record, a complaint under Section 138 of Act was filed by the respondent herein claiming that accused had taken a friendly loan of Rs.Seventeen lacs from him and the accused in discharge of part liability, had issued, signed and handed over to the complainant a cheque bearing no. 028790 dated 5.12.2011 of Rs.14,50,000/- drawn on Allahabad Bank, Timarpur, Delhi with the assurance that the said cheque would be encashed on presentation. However, when the said cheque was presented for payment, the same was returned dishonoured vide returned memo dated 20.1.2012 with the remarks 'insufficient funds'. He had apprised the accused about the dishonour of the cheque, accused refused to pay the same. As such, after issuance of legal notice, he has filed the CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.4 present complaint. Trial court after finding a prima facie case in favour of the respondent had summoned the accused vide order dated 26.5.2012. Thereafter, notice was served upon the appellant of the offence punishable under Section 138 of the Act. Accused pleaded not guilty and claimed trial. He has stated that the complainant mis-utilized the cheque, which has been given as security to the complainant at the time of taking loan of Rs.2,50,000/-. Thereafter, complainant had examined himself. Thereafter accused Mahinder Pal was examined under Section 313 Cr.P.C. Accused had taken the same plea as claimed by him in the notice. Thereafter, he had examined himself in defence as DW1. After hearing the arguments, trial court vide order dated 24.9.2015 convicted the appellant.
3. Against the impugned judgment and order on sentence dated 24.9.2015 and 5.10.2015 respectively passed by the ld. Trial court, appellant has preferred the present appeal stating that order is based on surmise and conjectures and the ld. CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.5 Magistrate has not taken into consideration the various aspects including the fact that the complainant/ respondent has not given any iota of evidence regarding the period particularly when the loan of Rs.Seventeen lacs was disbursed to the appellant. Moreover, in the income tax return, the complainant has not shown the above said loan. He had also drawn attention of this court towards the agreement Ex.PW3/1,which has been executed in the year 2009 while the loan has been disbursed earlier.
4. On the other hand, ld. Counsel for the respondent has rebutted the arguments stating that each and every thing has been proved on record. There is a transaction between the complainant and the respondent. Even the complainant has admitted his signatures on the document Ex.CW1/A, where certain amount has been mentioned. He had also stated that the complainant has not questioned the handwriting on the above said document, which has been written by the appellant itself. CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.6
5. I have heard the appellant at bar and perused the record. The main grievance of the appellant's counsel is that it was unaccounted money and there was no sources disclosed by the respondent, how this amount has come into possession of the respondent and how this amount has been disbursed. Even the income tax return filed by the respondent does not show the above said transaction. Moreover, he has stated that the cheque has been given for security because of the fact that earlier transaction of Rs.2.5 lacs was settled in the court of Sh.Viplav Dabas, ld. Metropolitan Magistrate in respect of three cheques while this fourth one was misused by the complainant, which was taken on the pretext that the same was misplaced/not found.
6. For the sake of convenience, Section 138 of the Act is required to reproduced herein :
Section 138 of N.I. Act - Dishonour of cheque for insufficiency etc. of funds in the account, - where any cheque drawn by a person on an account maintained by him with a banker for CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.7 payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may extend to two year), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this Section shall apply unless:-
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier,
(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to th payee or, as the case may be, to the holder in due course of the cheque, within CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.8 fifteen days of the receipt of the said notice.
7. In order to prove the case under Section 138 of Act, the complainant is required to prove that the cheque in question was issued by the accused from his account maintained in the bank and the same was in discharge of liability of recovery of debt. Ld. Counsel for the appellant has not disputed the fact that the cheque in question was issued from his account maintained in the bank. He has not disputed his signatures on the cheque. He has denied that the cheque was not issued in discharge of legally recoverable debt. Respondent has not discharged his burden that cheque was issued in discharge of legally recoverable debt. He has stated in the year 2008, the respondent has been earning merely Rs.10,000/- per month and he was not in a position to give the huge amount as friendly loan to the appellant. His further argument is that it is unaccounted money if it is presumed that the respondent had taken the loan of Rs. 17 lacs then it is also unaccounted CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.9 money. Moreover, the both the witnesses of the agreement had not been examined.
8. So far so, his arguments is concerned i.e., unaccounted money that cannot be taken into consideration in the case under Section 138 of the Negotiable Instruments Act. Question herein is only that it is given in discharge in the legally recoverable debt. The appellant had admitted that earlier he had taken the loan of Rs. 2.50 lacs which has been paid by him. Respondent has explained that he has taken cash of Rs. 13,00,000/- from his father on several occasions. Appellant had also admitted the agreement dated 19.01.2009 executed between him and the accused. Ex. CW1/3 have been witnessed by one Vipin Sharma and Inder Singh. Both the appellant and the respondent are known to each other as they work in similar corporations. Agreement had also mentioned that first party approached the second party for the loan of Rs. 17 lacs. The respondent had also admitted the document Ex. CW 1/A CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.10 where the certain calculations have been maid by the appellant in his own handwriting. Therefore, trial court had rightly believed the testimony of CW1 that he had proved all the ingredients of Section 138 of the Negotiable Instruments Act and held the appellant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act.
9. In view of the above discussions, I do not find any merit in the appeal. Hence, appeal stands dismissed. Consequent thereto, judgment and order on sentence dated 24.09.2015 and 05.10.2015 respectively passed by the trial court are confirmed. Appellant is taken into custody and sent to Tihar Jail for undergoing the sentence passed by the trial court. Trial court record is sent back along with a copy of this order. Appeal file is consigned to record room.
Announced in the Open Court
on 21.12.2015 (Atul Kumar Garg)
Addl. Sessions Judge-03 (Central),
Tis Hazari Courts
CA No. 61/15
Mahinder Pal Vs. Ranjan Kumar Page No.11
CA No. 61/15
Mahinder Pal Vs. Ranjan Kumar
21.12.2015
Present : Both parties are present along with their respective
counsels.
Vide my separate order dictated and announced in the open court, appeal stands dismissed. Consequent thereto, judgment and order on sentence dated 24.09.2015 and 05.10.2015 respectively passed by the trial court are confirmed. Appellant is taken into custody and sent to Tihar Jail for undergoing the sentence passed by the trial court. Trial court record is sent back along with a copy of this order. Appeal file is consigned to record room.
(Atul Kumar Garg) ASJ-03 (Central)/21.12.2015 CA No. 61/15 Mahinder Pal Vs. Ranjan Kumar Page No.12