Delhi District Court
Sh. Abhishek Sharma vs Sh. Vipin Kumar on 19 September, 2015
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS,
DELHI.
C.A. Old No. 60/12 & New No. 49/15.
ID No. 02401R0569732012
19.09.2015.
IN THE MATTER OF:
Sh. Abhishek Sharma,
S/o Late Sh. S.K. Sharma,
r/o DB13B, LIG FLATS,
Hari Nagar, Delhi.
....... Appellant.
Versus.
Sh. Vipin Kumar,
S/o Sh. R.D. Makhija,
r/o 11/29A, Tilak Nagar, New Delhi.
....... Respondent.
Date of Institution : 06.12.2012.
Date of arguments : 08.09.2015.
Date of Judgment : 19.09.2015.
JUDGEMENT
1. This is an appeal against the judgment 06.11.2012 passed by the Ld. Trial Court, vide which the appellant was convicted for offence u/s. 138 of N.I. Act and against the order on sentence dated 17.11.2012, whereby the Ld. Trial court has sentenced the appellant to undergo simple imprisonment of four months and to pay compensation of Rs. 3 lacs to the complainant within CA old No. 60/12 & New No. 49/15. Page No1/15 thirty days from the date of order. In default of payment of compensation, convict shall undergo SI for two months.
2. Aggrieved by the judgment and order on sentence, the appellant has filed the present appeal on the ground that the ld. Trial Court has committed an error of law in holding the appellant guilty under the offence in the case. Ld. Trial Court has committed a grave illegality and has not been able to appreciate the facts and law in the right perspective. The complainant has made false averments in the complaint that accused was his tenant in the premises bearing No. DB13B, LIG Flats, Hari Nagar, Delhi. The complainant did not adduce any evidence to prove the said averment. The accused has adduced strong positive evidence to show that the premises bearing No. DB13B, LIG Flats, Hari Nagar, Delhi is owned by her mother and complainant has nothing to do with the said flat. The appellant has exhibited the conveyance deed of the flat dated May, 2008 executed by DDA in favour of the mother of the appellant. The appellant has also proved the written statement of the DDA in Suit No. 179/12 where the DDA has clearly stated that the mother of the appellant is the owner of the said flat. Ld. Trial Court has simply ignored the above mentioned documents by simply stating that the said documents need not to be looked into as the complaint case pertains to the bounced cheque. Ld. Trial Court in para no. 13 of the judgment mentioned that defence taken by the appellant that he was not liable to pay the CA old No. 60/12 & New No. 49/15. Page No. 2/15 arrears of rent was not taken by the accused during the trial of the case. The appellant infact and instantly replied to the legal notice. It is also averred that ld. Trial Court has failed to note that in the matters under Section 138 of NI Act, the standard of proof on the part of the complainant is to prove the guilt of the accused beyond reasonable doubt like any other criminal trial. In the present case the appellant has succeeded in adducing positive evidence which is even more than the preponderance of probabilities. Ld. Trial court has failed to appreciate that once the initial onus cast on the accused is rebutted then the onus of proving the legally enforceable debt shifts upon the complainant. Ld. Trial Court has ignored that accused in the trial has questioned the existence of legally enforceable debt/ liability. It is also averred that ld. Trial court has failed to appreciate that existence of a legally recoverable debt is not a matter of presumption u/s. 139 of the NI Act. The appellant has also exhibited the notice which was sent to Sunil Kumar to whom the cheque was given but the ld. Trial Court has failed to appreciate this fact. Earlier complaint Case No. 274/08 and 275/08 had been dismissed because the cheques contained in those complaints had not been issued out of the account maintained by the accused. It is prayed that judgment dated 06.11.2012 and order on sentence dated 17.11.2012 be set aside and appellant be acquitted.
3. I have heard the ld. Counsel for the appellant and the respondent CA old No. 60/12 & New No. 49/15. Page No3/15 at length and perused the records of this Court as well as Trial Court carefully.
4. Perusal of the file reveals that respondent has filed the complaint against the appellant before the ld. Trial Court with the averments that appellant being his tenant in LIG Flats, bearing No. DB13B, G8 area, Hari Nagar, New Delhi in discharge of the arrear of rent has issued a cheque bearing No. 848606 of ICICI Bank, Punjabi Bagh Branch, Central Market, Punjabi Bagh West, New Delhi dated 06.02.2008 amounting to Rs. 2,46,000/ towards arrear of rent upto 15.12.2007 @ of Rs. 6000/ per month. On 07.02.2008 the complainant presented the cheque bearing No. 848606 amounting to Rs. 2,46,000/ to his banker but the cheque was returned back due to "insufficient funds". On 09.02.2008 the complainant sent a legal notice to the appellant by registered A.D/U.P.C which was duly served upon the appellant. The appellant sent reply to the notice. The complainant issued rejoinder to the reply by registered post. On the basis of these averments the present complainant has been filed.
5. The complainant tendered his presummoning evidence and appellant was summoned vide order dated 10.03.2008. Notice u/s. 251 Cr.P.C for the offence u/s. 138 NI Act is framed against the accused to which he pleaded not guilty and claimed trial. Perusal of the file reveals that in the statement u/s. 313 Cr.P.C accused submitted that he gave the aforesaid blank CA old No. 60/12 & New No. 49/15. Page No. 4/15 cheque to one Sunil Kumar C/o Sunil Property, A43, Mansa Ram Park, Uttam Nagar, Delhi in respect of loan taken from Sunil Kumar. Sunil Kumar gave the aforesaid cheque to the complainant as they both conspired against him. He also issued a legal notice to Sunil Kumar regarding his misdeed of handing over the aforesaid cheque to the complainant.
Thereafter, complainant led evidence and appeared as CW1 and proved the original cheque as Ex. CW1/1 and original memos as Ex. CW1/2 & Ex. CW1/3. The legal notice is proved as Ex. CW1/4, registered receipt and UPC receipt are proved as Ex. CW1/5 & Ex. CW1/6. The reply to the legal notice is proved as Ex. CW1/7. The rejoinder to the reply, registered receipt and UPC are proved as Ex. CW1/8 to Ex. CW1/10. The complainant has also examined CW2 Sh. Rajesh Kumar, Ahlmad in the Court of Sh. V.K. Bansal, the then Ld. ADJ. This witness proved the rent agreement as Ex. CW2/1, certified copies of rent receipts as Ex. CW2/2 to Ex. CW2/5. CW3 Sh. Abinash Jha, Officer from ICICI Bank, Punjabi Bagh Branch, New Delhi has proved the certified copy of account opening form of the accused as Ex. CW3/1, certified copy of Agent I Card as Ex. CW3/2.
On the other hand, accused examined himself as DW1 and proved the copy of conveyance deed as Ex. DW1/1. Certified copy of written statement filed by the DDA in suit filed by the wife of the complainant is proved as Ex. DW1/2. He has also proved the legal notice sent to Sunil Kumar as Ex. DW1/3 and reply to the legal notice issued by the CA old No. 60/12 & New No. 49/15. Page No5/15 complainant is proved as Ex. DW1/4 and its original acknowledgment is proved as Ex. DW1/5.
6. Now, I am dealing with the contentions of ld. Counsel for the appellant one by one.
It is contended by ld. Counsel for the appellant that the ld. Trial Court has failed to appreciate the facts properly on the record.
The complainant appeared in the witness box as CW1 and proved the documents Ex. CW1/1 to Ex. CW1/10. In the cross examination this witness had deposed that there is no document on the record of the court file which can prove that his wife was the owner and the landlady of the property. The complainant during cross examination answered voluntarily that all the documents are filed in the pending civil suit. The complainant has also examined Sh. Rajesh Kumar, Ahlmad in the court of Sh. V.K. Bansal, the then Ld. ADJ as CW2 and this witness has deposed that he has brought the summoned record i.e. original case file bearing suit No. 294/11 titled as "Jyoti Makhija Vs. Abhishek Sharma & Anr." This witness has deposed that the suit is for possession and recovery of arrears of rent and permanent injunction regarding property bearing no. LIG Flat, Flat No. DB13B, G8 area, Hari Nagar, New Delhi. This witness proved the certified copy of rent agreement as Ex. CW2/1. This witness deposed that in the suit there are four original CA old No. 60/12 & New No. 49/15. Page No. 6/15 rent receipts. The certified copy rent receipt dated 15.10.2000 is proved as Ex. CW2/2, the certified copy of rent receipt dated 15.11.2000 is proved as Ex. CW2/3, the certified copy of rent receipt dated 15.12.2000 is proved as Ex. CW2/4 and another rent receipt dated 15.01.2000 is proved as Ex. CW2/5. The complainant has also summoned Sh. Abinash Jha, Officer from ICICI Bank, Punjabi Bagh Branch, New Delhi as CW3 and this witness has proved the certified copy of account opening form of accused as Ex. CW3/1 and also proved the certified copy of Agent I Card as Ex. CW3/2. I am of the view that complainant has duly proved the documents Ex. CW2/1 to Ex. CW2/5 and the ld. Trial court has wrongly held in the judgment that the complainant has not proved the documents. I do not agree with the findings of ld. Trial Court that these documents are not proved as per provisions of law. The complainant had summoned CW2 to prove the rent agreement and rent receipts. Moreover, at no stage of trial the accused/ appellant has proved by bringing cogent evidence that rent agreement and receipts do not bear his signatures. At no point of time before the ld. Trial Court the appellant has filed application for examination of these documents by handwriting expert to prove that these documents do not bear his signatures.
7. Now, coming to the testimony of complainant. The appellant has given suggestion to the complainant that cheque in question was given to him by Sunil Kumar. Only suggestion was given to the complainant and it has not CA old No. 60/12 & New No. 49/15. Page No7/15 come on record that complainant ever knew Sunil Kumar. The appellant has not examined Sunil Kumar to prove that he had taken loan from Sunil Kumar. Moreover, the appellant has not placed on record any document to show that he has taken loan from Sunil Kumar and he has repaid the loan.
The appellant during cross examination has admitted his signatures on the cheque and he admitted that the said cheque was originally a blank signed cheque. I am of the view that the complainant is able to prove that the appellant has executed the rent agreement and he also issued the rent receipts in this regard and the cheque in question is in respect of arrears of rent.
8. During arguments, it is contended by ld. Counsel for the appellant that on the similar facts the complainant has filed CC No. 274/09/07 and CC No. 275/09/07. The complainant No. 274/09/07 was dismissed by the Court of Sh. D.K. Jangala vide judgment dated 16.12.2010 and CC No. 275/09/07 was dismissed by Ld. ARC on 06.11.2012.
I have perused both the judgments. In both the judgments, the account was not in the name of the appellant and rather the account was in the name of Harminder Singh and cheque in question was issued from that account and the basis of that the appellant was acquitted in CC No. 274/09/07 & CC No. 275/09/07. Thus, this contention carries no force. CA old No. 60/12 & New No. 49/15. Page No. 8/15
9. In the present case the appellant/accused has admitted his signatures on the cheque and he is not able to rebut the presumption under Sections 118 & 139 of the NI Act, as appellant failed to bring Sunil Kumar in the witness box before the ld. Trial Court. The accused also failed to place on record any document to show that he has taken loan from Sunil Kumar. The Ld. Trial Court in the judgment has rightly taken into consideration that it is for the accused to adduce evidence in this regard and to get the handwriting compared from an handwriting expert but no such initiative was taken by the accused and neither such evidence has been adduced by the accused in the Court. Ld. Trial Court has rightly held in para no. 14 of the judgment that as per the provisions of Section 139 of Negotiable Instruments Act, 1881, once the complainant has proved that a cheque has been issued by the accused in favour of complainant, then a presumption under Section 139 of Negotiable Instrument Act, 1881 can be drawn in favour of the complainant that the said cheque has been issued towards legally recoverable debt. Once the presumption has been drawn in favour of complainant then onus lies on the accused to rebut the said presumption. In order to rebut the said presumption, accused has to adduce cogent evidence and mere explanation will not rebut the said presumption. Ld. Trial Court has placed reliance on judgments titled as "Maruti Udyog Ltd. Vs. Narender" (1999) 1 SCC 113, "M.M.T.C. Vs. Medchl Chemicals and Pharma" 2002 (1) SCC 234, "V. Munikrishnaiah Vs. C. Janakirama Naidu & Anr." 2005 (2) DCR 284 and CA old No. 60/12 & New No. 49/15. Page No9/15 "K.P. Chinnasamy Vs. T.B. Kennedy" 2007 (2) DCR 359. I am of the view that ld. Trial Court has rightly held that in a case under Section 138 of the N.I. Act in which it is to be seen whether a cheque has been issued by the accused or not which was dishonoured on presentation. Once it is proved, a presumption under Section 139 of the N.I. Act is drawn and therefore, the documents like rent agreement and rent receipts etc. are not to be considered by the Court in this case. The Ld. Trial Court has also held that the written statement filed by the DDA is also not relevant in this case and the written statement filed by the DDA is only a submission made by the DDA and not a final finding given by any Court of law.
10. In the case of Habballapa Dungappa Katti & Ors. Vs. State of Karnataka 2001 (3) Crimes 218 (SC) and in the case of Y. Sreelatha @ Raja Vs. Mukundchand Bothra 2202 (1) All India Banking Law Judgments 87 at para 31, it was held that the words 'unless the contrary is proved' contained in Section 118 and 139 of the negotiable instrument Act would make it clear that the presumption has to be rebutted by proof and not by bare explanation, which is merely plausible. Unless the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to the rebutted. Hon'ble Supreme Court in Hiten P. Dalal Vs. Bratindra Nath Banerjee 2001 (Crime) 220 has already held that the onus is on the accused to prove by leading cogent evidence that cheque in question CA old No. 60/12 & New No. 49/15. Page No. 10/15 was not issued in discharge of any debt or liability.
11. Ld. Counsel for the appellant has placed reliance on judgment (2008) 4 Supreme Court Cases 54 titled as "Krishna Janardhan Bhat v. Dattatraya G Hegde", where it is held that "Section 139 merely raises a presumption in favour of the holder of cheque that the said cheque has been issued for discharge of any debt or other liability. Existence of legally recoverable debt is not a matter of presumption under Section 139". It is also held in the judgment that "whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof required on the part of an accused is Preponderance of probabilities".
In the present case, the accused has admitted his signatures on cheque. He had not adduced any evidence to show that the rent agreement Ex. CW2/1 and rent receipts Ex. CW2/2 to Ex. CW2/5 do not bear his signatures. Thus, this judgment is not helpful to the appellant.
Ld. Counsel for the appellant has also placed reliance on judgment AIR 2009 Supreme Court 1518 . I have perused this judgment with utmost regard. This judgment is also not helpful to the appellant as appellant at no point of time has produced Sunil Kumar before the ld. Trial Court to prove that he has taken loan from him nor Sunil Kumar has been examined as witness to prove this defence before the ld. Trial Court. There is no a single document placed before the ld. Trial Court by the accused that any loan was CA old No. 60/12 & New No. 49/15. Page No11/15 taken from Sunil Kumar. Thus, this judgment is also not applicable to the facts and circumstances of present case.
Ld. Counsel for the appellant has also placed reliance on judgment (2003) 8 Supreme Court Cases 745 titled as "Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr." to the effect that mere production and marking of a document as exhibit not enough and execution has to be proved by admissible evidence.
In the present case, Sh. Rajesh Kumar, Ahlmad in the Court of Sh. V.K. Bansal, the then Ld. ADJ appeared in the witness box as CW2 and this witness has proved the documents Ex. CW1/1 to Ex. CW1/5 i.e. rent agreement and rent receipts. The respondent has proved the documents by examining Ahlmad in the Court of Sh. V.K. Bansal, the then ld. ADJ where the original documents were pending. If, these documents were not signed by the appellant then he must have examined some handwriting expert that rent agreement Ex. CW2/1 and rent receipts Ex. CW2/2 to Ex. CW2/5 do not bears his signatures. Thus, this judgment is not helpful to the facts and circumstances of the cases.
Ld. Counsel for the appellant has also placed reliance on judgment IV (2012) BC 426 titled as "S.S. Chouhan Vs. State & Anr." but this judgment is not applicable to the facts and circumstances of this case. He has also placed reliance on judgment 2008 Crl. L. J. 434 titled as "John K. John Vs. Tom Varghese & Anr." , 2011(4) Crimes 158 (Ker.) titled as "Santhi CA old No. 60/12 & New No. 49/15. Page No. 12/15 Vs. Mary Sherly", 2012 (2) DCR 741 titled as "Baiju G. Nath, Laiju Nivas Vs. Girija Krishnakumar", AIR 1991 Orissa 25, 2009 (1) DCR 314 titled as "Gopan Vs. Tonny Varghese", 2012 (1) DCR 410 titled as "Shri Jose Pullan @ Joseph P. Vs. Smti Uma Jasrasaria", 2013 (3) DCR 120 titled as " M/s. Sekhon and Sekhon Finance And Vs. Rani" and 2008 Cri. L. J. 2955. I have perused all these judgments with utmost regard but these judgments are distinct from the facts in hand mainly on the point that appellant has failed to prove on record any document to show that he has taken loan from Sunil Kumar and Sunil Kumar did not appear before the ld. Trial Court to prove that appellant has taken loan from him. Moreover, the appellant has not adduced any positive evidence regarding rent agreement and rent receipts.
12. In view of the above discussions, I do not find any infirmity or illegality in the impugned judgment dated 6.11.2012 passed by the trial court in CC No. 437/09/2008 and it is upheld. The appeal filed by the appellant is without any merits and same is hereby dismissed.
13. It is submitted by ld. Counsel for the appellant that appellant is unmarried and age of the mother of the appellant is about 64 years. Mother of the appellant is dependent on appellant. Appellant is on young age. It is prayed that lenient view be taken against the appellant. It is also submitted that sentence in this appeal and CA Old No. 61/12 & New No. 55/15 be run CA old No. 60/12 & New No. 49/15. Page No13/15 concurrently.
On the other hand, respondent submits that order on sentence passed by ld. Trial Court is on the facts and circumstances of the case and he is satisfied by the order on sentence passed by the ld. Trial Court.
The ld. Trial Court has sentenced the appellant to undergo simple imprisonment for a period of four month and to pay compensation of Rs. 3,00,000/ to the complainant within thirty days from today. In default of payment of compensation, convict shall undergo SI for two months.
In the present case the cheque was given by the appellant on 06.02.2008 and not a single penny has been given by the appellant to the respondent till date. I am of the view that Ld. Trial Court has already taken lenient view against the appellant and the order on sentence dated 17.11.2012 passed by ld. Trial Court is affirmed and appellant is sentenced to undergo simple imprisonment for a period of four month and to pay compensation of Rs. 3,00,000/ to the complainant within thirty days from today. In default of payment of compensation, convict shall undergo SI for two months.
It is contended by ld. Counsel for the appellant that sentence in present case as well as CA Old No. 61/12 & New No. 55/15 be run concurrently. The cheque is dated 06.02.208 and the cases of dishonour of cheques are at high rise in the society. I am of the view that ld. Trial court has already taken lenient view. The appellant has not paid the compensation amount before the ld. Trial Court or before this Court. The cause of action in CA old No. 60/12 & New No. 49/15. Page No. 14/15 this appeals is distinct from CA Old No. 61/12 & New No. 55/15. I am of the view that both the sentences cannot run concurrently.
At this stage, it is contended by ld. Counsel for the appellant that appellant be released on probation.
This contention of ld. Counsel for the appellant carries no force as at no point of time the appellant has submitted that he is ready to make the payment of compensation amount to the respondent.
Trial Court record along with copy of the judgment be sent back. Attested copy of the judgment be supplied to the appellant free of cost. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA)
COURT ON : 19.09.2015. ASJ5 (West), THC, Delhi.
CA old No. 60/12 & New No. 49/15. Page No15/15