Delhi District Court
Smt. Charu Rohtagi vs Smt. Kiran Uppal on 6 April, 2015
IN THE COURT OF SH SANJAY BANSAL:
ADDL. SESSIONS JUDGE-03 (East):
KARKARDOOMA COURTS: Delhi.
Criminal Appeal No.: 103/14
(02402R0236422014)
Smt. Charu Rohtagi
W/o Late Sh. Neeraj Singh Rohtagi,
R/o J-89, UF-1, 3rd Floor,
Dilshad Colony Extension-1,
Shahdara, Delhi .......... Appellant.
Vs.
Smt. Kiran Uppal
W/o Sh. Kanwal Sen Uppal
R/o J-2/5, Krishna Nagar,
Delhi - 110051 ...........Respondent.
Date of Institution: 07.08.2014
Judgment Reserved on: 23.03.2015
Date of Judgment: 06.04.2015
CC No.: 294/11
PS: Krishna Nagar
U/S: 138 NI Act
JUDGMENT:
1. Appellant Charu Rohtagi has come up in appeal against judgment dated 30.06.2014 and order on sentence dated 07.07.2014, both passed by learned MM (NI Act) East in criminal case bearing CC No.294/11, whereby appellant was held guilty and convicted under Section 138 of Negotiable Instruments Act, 1881 ("NI Act"). She was sentenced to undergo TRC and fine of Rs. 7,50,000/- out of which Rs. 7,25,000/- was awarded as compensation to complainant and remaining amount of Rs. 25,000/- to be deposited with State. The amount was to be deposited within two months from 07.07.2014. Appellant Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 1 of 7 was further directed to undergo SI for three months in default of payment of the said amount.
2. Respondent Smt. Kiran Uppal had filed a complaint case against the appellant in which respondent alleged that she had lent out Rs. 6 lacs to the appellant on interest @ 3% per month. It was also alleged that appellant had executed a promissory note and a receipt in favour of the respondent in presence of two witnesses. Further case of respondent was that appellant had also issued a cheque of Rs. 6 lacs i.e. cheque no. 837451 dt. 11.05.2011 drawn on Punjab National Bank, Krishna Nagar, Delhi-51. The said cheque was dishonoured on presentation with remarks, "Account is inoperative/dormant" vide memo dt. 24.05.2011. Respondent sent legal notice dt. 27.05.2011 but despite receipt of the same, appellant did not make any payment.
3. On these allegations, appellant was summoned as an accused for offence u/s 138 NI Act. The notice of accusation was served upon her on 08.09.2011 in respect of the above noted cheque to which appellant pleaded not guilty and claimed trial. Appellant admitted her signature on the cheque but denied filling up the other details. She denied taking any loan from the respondent. She admitted receipt of legal notice.
4. Respondent led her evidence. She herself appeared as CW-1. She examined her husband as CW-2 and one Gurcharan Singh as CW-3.
5. Statement of the appellant was recorded under Sec. 313 CrPC. In the said statement appellant stated that she had handed over the cheque in question to husband of the respondent who was a property dealer and had Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 2 of 7 promised her for transaction of some plot/flat. She again denied receiving any loan from the respondent.
6. Appellant led defence evidence and herself appeared as DW-1. She examined one Smt. Payal as DW-2. She also examined the handwriting expert Sh. Kamal Kant Khandelwal as DW-3.
7. Learned MM after hearing the parties and evaluating the material on record, came to the conclusion that appellant had taken the loan from respondent and had issued the cheque in question in discharge of the said liability. The said cheque having been dishonoured, the appellant was guilty of commission of offence u/s 138 NI Act.
8. Appellant challenges her conviction and sentence on various grounds. I have heard Sh. Vivek Srivastava, learned counsel for appellant and Sh. Inderjeet Singh, learned counsel for respondent. I have also perused the record.
9. Learned counsel for the appellant vehemently contended that respondent could not show the source of the money which was allegedly paid to the appellant as loan. He further submitted that even if it is assumed that respondent had the money, then it is clear that it was unaccounted money as respondent had admittedly not shown the loan in her income tax return. Learned counsel relied upon Sanjay Mishra vs. Ms. Kanishka Kapoor @ Nikki & Anr., Cri. Appln. No. 4694/2008 decided on 24.02.2009 by Hon'ble Bombay High Court, in support of his contentions. He urged that the liability alleged by the respondent was not enforceable under the law and, therefore, no offence u/s 138 Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 3 of 7 NI Act was made out. He also questioned the rejection of evidence of the handwriting expert/DW-3 by the learned trial court.
10. On the other hand learned counsel for the respondent, while supporting the impugned judgment, submitted that the judgment is based on correct appreciation of facts and law. He relied upon Kiran Yugalkishore Bhattad vs. Sushila Ramcharan Kattamwar, 2011(2) RCR (Criminal) 10, and submitted that merely because of not showing the loan transaction in the ITR of the complainant, the appellant is not absolved of her liability.
11. Learned MM in the impugned judgment had considered these similar submissions. Learned MM had rejected these arguments. Regarding the aspect of not showing the loan transaction in the ITR, she observed that it was not enough to rebut the presumption u/s 139 of NI Act. Learned MM also rejected the evidence of handwriting expert on the ground that there were contradictions in the same. She came to the conclusion that appellant had failed to prove any forgery.
12. Reliance of learned counsel for the appellant on Sanjay Mishra's case (supra) is not fruitful. Hon'ble Bombay High Court had relied upon Krishan Janardhan Bhat's case [(2008) 4 SCC 54] and observed that presumption u/s 139 NI Act did not extend to existence of legally enforceable liability and thus observed that as the money was unaccounted, same could not be said to be legally enforceable debt. However the observations of Hon'ble Supreme Court in Krishana Janardan Bhatt's case have been overruled in Rangappa's case [(2010) 11 SCC 441] which says that the presumption u/s 139 NI Act even Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 4 of 7 extends to existence of legally enforceable liability. In this view of the matter, the judgment in Sanjay Mishra's case (supra) of Hon'ble Bombay High Court is not of any help to the appellant.
13. Evidence of the handwriting expert was rightly discarded. Perusal of his testimony shows that he though had given an opinion but had not given the reasons for holding such opinion. Appellant had examined this witness to show that the promissory note was not executed by her. But evidence of DW-3 is of no help to the appellant.
14. Learned counsel for appellant had also submitted that report of DW-3 was discarded without any basis. Learned counsel for respondent countered this submission and highlighted the cross-examination of DW-3 and submitted that DW-3 stood contradicted. It has come in the cross-examination that DW-3 had not formed definite opinion regarding every letter of signature of appellant and that he had found some similarities in disputed and admitted signatures of appellant but had not so mentioned either in the report or in the photographs. This part of the cross-examination was enough to show that opinion of DW-3 could not be relied upon. He ignored to mention the similarities in the said signatures which act of his makes his report doubtful.
15. Respondent was able to prove that she had given Rs.6 lacs as loan to the appellant. It is different matter that respondent had not shown the said transaction in her income tax return. For this lapse, the income tax department can take appropriate proceedings against the respondent. But this will not lead to acquittal of the appellant. The cheque given by the appellant was dishonoured. Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 5 of 7 Appellant failed to show that she had given the cheque to husband of respondent for purchasing some property. In my view, there was no sense of such a defence. Why the seller would give cheque to a broker?
16. Learned counsel for the appellant also contended that the cheque in question could not have been issued in 2011 as the same was having five digit account number which had been discontinued long back since 2006-07 by the banks. He thus submitted that the respondent/complainant had misused the cheque which was given to her husband.
17. I do not find any substance in this submission. Merely because five digit account number was written on the cheque, the bank would not have dishonoured it had the account been alive and running. It still would have been valid cheque. Because the account of appellant was dormant/inoperative, that was the only reason for dishonour of the cheque.
18. Another contention of the learned counsel for the appellant was that the original documents were not filed and thus case was not duly proved. This contention needs outright rejection because respondent/complainant had filed certified copies and originals thereof were seen and returned. Documents were proved validly.
19. Learned counsel for appellant could not show any other error in the impugned judgment. In my view, appellant was rightly convicted. Conviction is upheld.
20. As far as order on sentence is concerned, learned MM has already shown too much leniency by awarding just imprisonment till rising of the court Crl. Appeal No.103/2014 Smt. Charu Rohtagi Vs. Smt. Kiran Uppal Page 6 of 7 and fine. No interference is called for in the order on sentence as well. Same is also upheld.
21. Appeal is hereby dismissed. Appellant is directed to pay the fine amount within two months as already ordered by the trial court.
22. A copy of the judgment be placed in the TCR and same be sent to court concerned immediately.
23. Appeal file be consigned to Record Room.
Announced in open court on 6th day of April, 2015 (Sanjay Bansal) ASJ-03 (East) KKD Courts: Delhi.
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