Delhi District Court
Smt.Prakasho vs . Mukesh Kumar (Since Deceased) Through ... on 10 May, 2018
CA No.73/17
Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife
Smt.Promila
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 73/17
ID No. 337/17
CNR No. DLSW010120982017
In the matter of:
Smt.Prakasho
W/o Sh.Rohtash
R/o B100, Chhawla Village
New Delhi110071.
... Appellant
Versus
Mukesh Kumar (since deceased)
Through his wife
Smt.Promila
W/o Sh.Mukesh Kumar
R/o Pachhiya Mohalla
V & P.O. Chhawla
New Delhi110071.
... Respondent
Page: 1/37
CA No.73/17
Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife
Smt.Promila
Date of institution of appeal : 12.10.2017
Date on which judgment reserved : 03.05.2018
Date on which judgment pronounced : 10.05.2018
JUDGMENT
1. Vide the present appeal, the appellant has challenged the judgment dated 19.09.2017 (hereinafter referred to as impugned judgment) vide which appellant was convicted under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) and the sentence order dated 27.09.2017 (hereinafter referred to as impugned sentence order) vide which appellant/convict was sentenced to simple imprisonment for a period of one month alongwith compensation of Rs.11,00,000/ to the complainant within 30 days from the date of Page: 2/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila sentence order and in default of payment of compensation to the complainant, to undergo simple imprisonment for period of four months.
2. The brief facts which are relevant for deciding the present appeal are that complainant i.e. husband of respondent had filed a complaint before the ld.trial court under section 138 of the NI Act alleging therein that in the last week of November, 2014, appellant approached the complainant and demanded Rs.9 lac urgently for family purpose as friendly loan with assurance to return the same as early as possible within two months. The complainant i.e. husband of respondent considering long term family relationship between his family and appellant, advanced the said amount from all his resources to the appellant. It was alleged that after some time when complainant approached the appellant for Page: 3/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila repayment of his loan amount, appellant started to avoid any type of conversation in this regard with the complainant and on pressurizing the appellant, appellant gave two cheques to the complainant which on presentation were returned back dishonoured with the remarks " Fund Insufficient". Thereafter, complainant had issued the notice but despite service, no payment was made by the appellant. Accordingly, complainant had filed a complaint under section 138 of the NI Act against the appellant.
3. Thereafter, based upon the presummoning evidence, appellant was summoned for the offence under Section 138 NI Act and notice of accusation under Section 138 NI Act was served upon the appellant to which appellant pleaded not guilty and claimed trial.
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4. The defence of the appellant, at the stage of framing of notice, was that she had not taken loan of Rs.9 lac from the complainant and that the impugned cheques alongwith two other blank signed cheques were taken from her by the complainant on the pretext of facilitating loan from Punjab National Bank. Appellant admitted that the impugned cheques bear her signature but stated that other particulars therein were not filled up by her.
5. During the course of trial, complainant expired and in his place, his wife i.e. respondent was substituted being L.R. of complainant.
6. Thereafter, the matter was posted for evidence.
7. At trial, respondent examined herself as CW1. After closure of respondent's evidence, appellant Page: 5/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila was examined U/s 313 Cr.P.C. Thereafter, at the stage of defence evidence, appellant examined himself as DW1 and her daughter Seema as DW2.
8. The Ld. trial court after hearing both the parties, vide the impugned judgment, found appellant guilty of the offence under Section 138 of the NI Act and sentenced him accordingly, vide the impugned sentence order.
9. Aggrieved by the impugned judgment and impugned sentence order, appellant has preferred the present appeal.
10. Notice of the appeal was issued to respondent, who chose not to file any reply.
11. I have heard Sh. Anil Kumar Gupta, Ld.counsel for the appellant and Sh.J.S.Sangwan, Ld.counsel Page: 6/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila for the respondent. I have also summoned the trial court record and have carefully perused the same.
12. It was submitted by the Ld.counsel for the appellant that in the present case, Ld.trial court has committed a grave illegality by convicting the appellant for the offence under section 138 of the NI Act even though there was no incriminating evidence on record to show the existence of liability with regard to cheques in question.
13. It was submitted that appellant had not issued the cheques in question to the complainant/husband of respondent in discharge of any liability but was issued in blank alongwith two more blank signed cheques alongwith copy of Aadhar Card, Ration Card, Payslip to the complainant/husband of respondent for the purpose of facilitating loan from the bank for the Page: 7/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila purchase of property by the appellant.
14. It was submitted that appellant was employed as a class IV employee with the MCD and it was not believable that complainant/husband of respondent would have advanced a huge loan of Rs.9 lac to the appellant.
15. It was further submitted that even the complainant/husband of respondent was not having the financial capacity to advance such a huge loan to the appellant and as per evidence, which has come on record of the respondent, their monthly expenditure was Rs.10,000 - Rs.12,000/ and from such a low income, it was not possible to advance a huge loan of Rs.9 lac to the appellant.
16. It was further submitted that Ld.trial court wrongly raised the presumption under Section 118 Page: 8/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila and 139 of the NI Act against the appellant even though the factual basis for raising presumption was not proved on record by the respondent as financial capacity to advance such a huge loan was never established on record by the respondent . Therefore, initial burden put upon the respondent was never discharged and hence, respondent had failed to prove that cheques in question were issued for the legal liability of the appellant.
17. It was further submitted that appellant in order to establish her defence, on the basis of preponderance of probabilities, had also examined her daughter i.e. DW2 Seema, who has proved on record that in her presence, complainant had taken blank signed cheques, copy of Aadhar Card, Pan Card and Rs.20,000/ in cash for the purpose of arranging of loan. However, the Ld.trial court did not consider the defence led on record by the Page: 9/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila appellant and wrongly held that appellant had failed to rebut the presumption. Accordingly, it was concluded by saying that respondent had failed to prove that the cheques in question were issued in discharge of any legal liability.
18. In support of his submission, Ld.counsel for appellant has relied upon the following judgments: (1) Vipul Kumar Gupta Vs. Vipin Gupta, Crl.L.P.461/2011; (2) Amar Singh Mehta Vs. Sukh Ram Sharma and another, Cr.Appeal No. 49 of 2018; (3) K.Prakashan Vs. P.K.Surenderan, Appeal (Crl.) 1410 of 2007; (4) PL Vairavan Vs. Al Selvakumar, Crl.Appeal No. 461 & 474 of 2005; (5) K.Subramani Vs. K.Damodara Naidu, Crl.Appeal No. 2402 of 2014; (6) Sanjay Mishra Vs. Ms.Kanishka Kapoor @ Nikki and another, Criminal Application No. 4694 of 2008 and (7) Nikhil P.Gandhi Vs. State of Gujarat & 2, Crl.Misc.
Page: 10/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila Application No.968 of 2014.
19. It was further submitted that the Ld.trial court also did not take into account the fact that complainant was into the money lending business and without having a money lending license, he could not have advanced the alleged loan to the appellant. Therefore, the liability with regard to alleged cheques in question was not legally recoverable.
20. It was further submitted that in this regard, it has come in the cross examination of appellant that complainant had advanced monetary help to the appellant on various occasions which shows that complainant/ husband of respondent was into the business of money lending. Therefore, in the absence of any money lending license, the liability with regard to cheques in question was not legal Page: 11/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila liability and hence, it could not have been said that cheques in question were issued for legal liability. Accordingly, it was concluded by submitting that in the present case, since it was never proved on record by the respondent that the cheques in question were issued for discharge of legal liability, hence, Ld.trial court committed a grave illegality by convicting the appellant for the offence under Section 138 of the NI Act. Accordingly, it was prayed that impugned judgment and impugned sentence order be set aside and appellant be acquitted for the offence under Section 138 of the NI Act.
21. On the other hand, Ld.counsel for respondent had submitted that the impugned judgment of the Ld.trial court does not call for any interference as the same has been delivered after appreciating the evidence which has come on record.
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22. It was submitted that the Ld.trial court had rightly raised the presumption against the appellant with regard to cheques in question as the financial capacity of the respondent to advance loan of Rs.9 lac was never questioned by the appellant in the cross examination of respondent and appellant herself admitted in her cross examination regarding there being cordial relations between her family and respondent and on previous occasions also, monetary help being extended by the family of respondent to the appellant.
23. It was further submitted that the defence raised by the appellant in the present case was rightly disbelieved by the Ld.trial court. It was submitted that appellant had taken inconsistent defence at various stages of trial due to which her defence Page: 13/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila was rightly disbelieved by the Ld.trial court.
24. It was submitted that at the stage of framing of notice under Section 251 Cr.P.C., appellant never took up the defence that alongwith the cheques in question, complainant i.e. husband of respondent has also taken her Aadhar Card, Pan Card and Rs.20,000/ in cash. Thereafter, when appellant had filed an application under Section 145(2) of the NI Act, appellant had taken a new defence that alongwith cheques in question, various documents like Pan Card, Aadhar Card, Election voter card and Rs.20,000/ in cash were taken by complainant i.e. husband of respondent for the purpose of facilitation of loan.
25. It was further submitted that although appellant had examined her daughter Seema as DW2 to show that the aforementioned documents and Page: 14/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila Rs.20,000/ in cash were taken in presence of DW2 Seema but testimony of DW2 Seema could not have been relied upon, as at the previous stage of trial i.e. at the stage of framing of notice under Section 251 Cr.P.C. and at the time of cross examination of respondent and even while being examined under Section 313 Cr.P.C., appellant never stated on record that the cheques in question alongwith documents like Aadhar Card, Pan Card and Rs.20,000/ in cash were taken in presence of her daughter Seema. Therefore, examination of DW2 Seema, at the stage of defence evidence, was nothing but an after thought and her testimony was rightly, not relied upon by the Ld.trial court.
26. It was further submitted that Ld.trial court had rightly raised the presumption under Section 118 and 139 of the NI Act since appellant had admitted the execution of cheques in question and also Page: 15/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila admitted that on previous occasions, she had also taken monetary help from the family of respondent. It was further submitted that although presumption was rebuttable but no cogent evidence was led on record by the appellant to rebut the presumption. Hence, Ld.trial court rightly held that it was proved on record that the cheques in question were issued in discharge of legal liability.
27. It was further submitted that in the present case, there is no evidence on record to show that complainant was in the business of money lending. Therefore, there was no question of complainant to have a money lending license.
28. It was submitted that whatever financial help was provided by complainant to the appellant, was on account of family relations between them and Page: 16/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila there was no evidence led on record to show that complainant was in the habit of advancing loan to other persons also on interest. Therefore, extending of financial help by complainant to appellant on account of family relations cannot be termed as " act of money lending". Hence, on this ground also, impugned judgment requires no interference.
29. It was concluded by submitting that the financial capacity of the complainant was established on record by the respondent by deposing to the fact that loan was advanced to the appellant by selling land and even the name of the purchaser i.e. Ramesh was deposed in the cross examination by respondent and she had also volunteered to produce the said purchaser Ramesh before the Ld.trial court. However, appellant never made request to the Ld.trial court for the Page: 17/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila purpose of summoning of sale documents or purchaser i.e. Ramesh which means that fact of selling of land was in the knowledge of the appellant and that is why appellant chose not to summon the purchaser Ramesh even though respondent had volunteered to produce him before the Ld.trial court. Accordingly, it was submitted that the appeal filed by the appellant does not disclose any ground which calls for interference in the impugned judgment and the impugned sentence order. Accordingly, a prayer was made to dismiss the appeal.
30. I have considered the rival submissions and have carefully perused the trial court record and the evidence led on record.
31. Only two questions arises for consideration in the present appeal. Firstly, whether the cheques Page: 18/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila were issued in discharge of legal liability or not and secondly, whether complainant was into the business of money lending and hence, required license to do the business of money lending?
32. I shall first take up the issue as to whether cheques were issued for discharge of legal liability or not?
33. In the present case, the admitted facts which have come on record are as follows:
(a) The signing of cheques in question by the appellant is admitted.
(b) Appellant and family of respondent being in cordial relations and respondent/complainant providing monetary assistance to the family of appellant from time to time in the past also stood admitted.
(c) The fact of complainant having the financial Page: 19/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila capacity to advance loan of Rs.9 lac also stood admitted by the appellant. The reason for the same is that in the cross examination of respondent, a specific question was put by the appellant as to from where the loan amount was arranged. To the said question, respondent had answered that her husband i.e. complainant had arranged the amount by selling the land for Rs.10 lac to one Ramesh and she can also produce the purchaser i.e. Ramesh in the Ld.trial court.
34. Although respondent had volunteered to produce the purchaser Ramesh before the Ld.trial court but appellant never made any request for summoning of purchaser Ramesh or for summoning of relevant sale documents to rebut the presumption under Section 139 of the NI Act.
35. In the facts, since the witness to the sale Page: 20/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila transaction was available and had come into the knowledge of the appellant but still if he was not summoned, then an adverse inference has to be drawn against appellant under Section 114 of the Indian Evidence Act, 1872 that in case, purchaser Ramesh was summoned, then he would not have supported the defence of the appellant.
36. Hence, all these facts show that appellant admitted that complainant had the financial capacity to advance loan as he had sold his land to one Ramesh for Rs.10 lacs.
37. The handing over of blank signed cheques by appellant to the complainant also do not prove on record that the cheques were not issued in discharge of legal liability.
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38. The cheques in question Ex.CW1/B1 and Ex.CW1/B2 are of Rs.4,50,000/each. The signing of the cheques by the appellant and handing over the same to complainant is not in dispute as the said fact has been admitted by appellant in her statement under Section 313 Cr.P.C. Since signing of the cheque by the appellant is an admitted fact, therefore, it is presumed that the cheques were issued in discharge of the legal liability.
39. I am fortified in my reasoning by the judgment delivered by Hon'ble Delhi High Court in case re ported as M/s.The Jammu and Kashmir Bank Vs. Abhishek Mittal, 2012(1) DCR 189 wherein it was held that a person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque has been given by him. It was further held in Para 7 as follows: Page: 22/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila Para 7 "Once issuance of the cheque has been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the NI Act for the discharge in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the NI Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the NI Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque".
40. Accordingly, a presumption arises in favour of the respondent/complainant and against appellant Page: 23/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila that the cheque had been issued in discharge of legally enforceable debt or liability. It was for the appellant to rebut the presumption which she has miserably failed to do so.
41. In the present case, the defence of the appellant was that cheques in question were given to the re spondent/complainant for the purpose of arrang ing for a loan from bank for the purpose of pur chasing of property by appellant.
42. In the opinion of this court, the said defence was never established on record, even on preponderance of probabilities by the appellant. The reason for the same is that the defence taken up by the appellant, at various stages of trial, has been inconsistent and, therefore, cannot be believed.
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43. At the stage of framing of notice, appellant had never taken up the defence that apart from cheques in question, various identification documents like Aadhar Card, Pan Card, Election Voter Card and Rs.20,000/ in cash were given. However, during the course of cross examination of respondent and at the stage of statement under Section 313 Cr.P.C., the appellant made an improvement in her defence by suggesting to respondent that apart from four blank signed cheques, appellant has also given identification documents like Pan Card, Aadhar Card and Rs.20,000/ in cash for the purpose of facilitation of loan to respondent/complainant.
44. At the stage of cross examination of respondent and at the stage of examination of appellant under Section 313 Cr.P.C., no defence was taken up by the appellant that the above mentioned documents Page: 25/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila and Rs.20,000/ in cash were given in the presence of DW2 Seema, who happens to be the daughter of appellant.
45. It was only at the stage of defence evidence that it came on record for the first time that DW2 Seema was the witness to the handing over of four blank signed cheques, identification documents and Rs.20,000/ in cash to the complainant/respondent for the purpose of arranging of loan from the bank.
46. The examination of DW2 Seema to the effect that she was aware of the handing over of loan documents, is nothing but an after thought. Therefore, in the light of inconsistent defence taken up by the appellant at different stages of trial, her defence was never established on record on preponderance of probabilities and Ld.trial Page: 26/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila court rightly held that appellant had failed to rebut the presumption under Section 139 of the NI Act.
47. Therefore, respondent had proved on record that cheques in question were issued by the appellant in discharge of her legal liability towards the loan of Rs.9 lacs.
48. Now, I shall take up the various judgments relied upon by the Ld.counsel for appellant in support of his contention that the cheque was not issued in discharge of legally enforceable liability.
49. The judgments relied upon by the Ld.counsel for appellant delivered in Vipul Kumar Gupta's case (supra) and Sanjay Mishra's case (supra) are not applicable to the facts of the present case as in the cross examination of respondent, Ld.counsel for appellant had never suggested to Page: 27/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila her that deceased Mukesh Kumar, who is the complainant in this case, had not shown the loan amount in the income tax return or that he does not file any income tax return.
50. Since the fact of deceased Complainant Mukesh Kumar being an income tax payee and not showing the loan amount in question in his income tax return was never brought on record, therefore, it is difficult to hold that the loan amount was unaccounted cash.
51. Even assuming that deceased Complainant was an income tax payee and the loan amount was not reflected in the income tax return for the relevant year, then also liability will not become unenforceable. I am fortified in my reasoning by the judgment of the Hon'ble Bombay High Court delivered in Bipin Mathurdas Thakkar Vs. Samir Page: 28/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila @ Sameer Dessai, Crl.Revision Application No. 53 of 2014 decided on 05.02.2015, 2015 ALLMR (CRI) 4172.
52. In the said case, the Hon'ble Bombay High Court had disagreed with the findings of Sanjay Mishra's case (supra) and held that there is no provision of Income Tax Act which makes an amount not shown in the income tax return unrecoverable. The relevant paras of the aforementioned judgment are reproduced herein below.
"17: The observations in the case of "Sanjay Mishra" (supra) with regard to unaccounted cash, are based on the judgment of the Hon'ble Supreme Court in the case of "Krishna Janardhan Bhat Vs. Dattatraya G.Hegde" reported in 2008(4) SCC
54. In the case of "Krishna Janardhan Bhat" (supra), it was held that the existence of legally Page: 29/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila enforceable debt was not a matter of presumption under Section 139 of the NI Act. However, the above observation in the Judgment in the case of "Krishna Janardhan Bhat"
(supra) has been overruled by a three judge Bench of the Supreme Court in the case of "Rangappa" (supa). In the said case of "Krishna Janardhan Bhat" (supra), decided by two judge Bench of the Supreme court, it was further held that advance of more than Rs.20,000/ was to be made only by way of an account payee cheque. However, in the case of "Rangappa" (supra), decided by the three judge Bench of the Apex Court, an advance of Rs.45,000/ was made in cash in spite of which the Hon'ble Supreme Court proceeded to uphold the conviction. Thus, the judgment in the case of "Krishna Janardhan Bhat" (supra),with regard to the advance of cash amount of more than Rs.20,000/without 15 Cr.Rev. 53/14 showing the same in income tax returns, has been impliedly Page: 30/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila overruled. Therefore, it cannot be said that merely because the amount advanced was not shown in the income tax returns, Section 138 of the NI Act is not applicable.
19. The learned Single Judge in Criminal Appeal No. 6 of 2012 has observed that there is no provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. It has been observed that if some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. It is further observation that infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. It Page: 31/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila has been held that to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the NI Act. The learned Single Judge has respectfully disagreed with the observations made in the case of "Sanjay Mishra"
(supra). No doubt, the above judgment dated 19.07.2013, passed in Criminal Appeal No.6 of 2013, has been set aside by the Hon'ble Supreme Court, in Criminal Appeal No. 614615 of 2014. But the setting aside was because the appellant (accused) had already paid the sum of Rs.4,00,000/ in favour of the complainant. The findings of the learned Single Judge in said Criminal Appeal No. 6 of 2013 have not been set aside. I am in respectful agreement with the observations made by the learned Single Judge ( R.C.Chavan, J) in Criminal Appeal No. 6 of 2012. I am of the view that the provision of Section 138 of the NI Act does apply to the present Page: 32/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila transaction".
53. Further, the judgment relied upon by the Ld.counsel for appellant delivered in Amar Singh Mehta's case (supra) and K.Prakashan's case (supra) are also not applicable in the given facts as in the present case, respondent had proved on record that deceased complainant had the financial capacity to advance the loan.
54. The judgment relied upon by the Ld.counsel for the appellant delivered in PL Vairavan's case (supra) is also not applicable to the facts of the present case as in the said judgment, accused had proved on record the discharge of loan as he had proved return of the loan amount through various bank drafts.
55. The judgment relied upon by the Ld.counsel for Page: 33/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila appellant delivered in K.Subramani's case (supra) is also not applicable as in the said case, complainant being a government servant had not complied with the conduct rules by informing the Government Department regarding lending of loan to the accused.
56. Further, complainant also had claimed that he had advanced the loan by selling his land but the sale price was not mentioned. Further, the deposition of wife of complainant in some other case was also against complainant as she had deposed that accused had not taken any loan from the complainant.
57. The said judgment is not applicable as complainant in the present case is not a government servant and secondly, respondent / complainant had disclosed about the name of Page: 34/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila purchaser and the amount of sale transaction.
58. Now, I shall take up the issue as to whether any money lending license was required by the respondent/complainant or not?
59. For the purpose of establishing on record that complainant was in the business of money lending, it was imperative for the appellant to have brought something on record to show that apart from appellant, complainant had advanced loan on interest to other persons also.
60. The respondent had categorically denied that her deceased husband had advanced loan to any other person apart from the appellant. The respondent also denied that they had received any kind of interest from the appellant against the loan in question.
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61. No suggestion was given by the appellant that apart from appellant, deceased husband of respondent had also advanced loan to some other persons also nor any person was examined in this case, to show that husband of the respondent had advanced loan on interest to that person. Therefore, nothing has been brought on record in the cross examination of respondent to show that deceased husband of the respondent was in the business of money lending and hence, required the money lending license to advance loan. Therefore, it cannot be said that liability of the cheques was unenforceable as complainant was not having a money lending license.
62. In the light of above discussion, the grounds raised in the appeal do not call for any interference in the impugned judgment and impugned sentence Page: 36/37 CA No.73/17 Smt.Prakasho Vs. Mukesh Kumar (since deceased) through his wife Smt.Promila order of the Ld.trial court. The appeal is accordingly dismissed.
63. Appellant be taken into custody to serve the sentenced as awarded by the Ld.trial court.
64. A copy of judgment be given free of cost to the appellant.
65. Trial court record be sent back alongwith a copy of judgment.
66. Appeal file be consigned to record room.
Digitally signed by VIKAS VIKAS DHULL
DHULL Date:
2018.05.10
15:10:44 +0530
Announced in the open court (Vikas Dhull)
Dated : 10.05.2018 Spl. Judge (PC Act) CBI03
Dwarka/New Delhi
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