Delhi District Court
Sh. Abhishek Sharma vs Sh. Vipin Kumar on 19 September, 2015
IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. Old No. 61/12 & New No. 55/15.
ID No. 02401R0569742012
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 six months and to pay compensation of Rs. 4,25,000/ to the complainant within thirty days from the date of order. In default of payment of CA old No. 61/12 & New No. 55/15. Page No1/15 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 has absolutely ignored the weaknesses/ total lack of evidence in the complaint's evidence and cogent evidence produced by the accused. It is also averred that ld. Trial Court has failed to CA old No. 61/12 & New No. 55/15. Page No. 2/15 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 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 CA old No. 61/12 & New No. 55/15. Page No3/15 against the appellant before the ld. Trial Court with the averments that in discharge of the loan advanced by the complainant the accused/ respondent issued a cheque bering No. 848605 of ICICI Bank, Punjabi Bagh Branch, Central Market, Punjabi Bagh West, New Delhi dated 06.02.2008 amounting to Rs. 3,89,000/ towards full and final payment/ settlement with interest. On 07.02.2008 the complainant presented the cheque bearing No. 848605 amounting to Rs. 3,89,000/ 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 signed cheque to Shri Sunil Kumar, who is a property dealer in Uttam Nagar only in respect of some transaction with him. The said Shri Sunil Kumar gave the aforesaid cheque to the complainant. He also issued a legal notice to Sunil Kumar regarding handing over the aforesaid cheque to the complainant. CA old No. 61/12 & New No. 55/15. Page No. 4/15
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 receipt are proved as Ex. CW1/8 to Ex. CW1/10. The complainant has also examined CW2 Sh. Arvinder Kumar S/o Sh. Hans Raj, Officer, ICICI Bank, Punjabi Bagh Branch, Delhi. This wintess has proved the certified copy of account opening form of the accused as Ex. CW2/1, it bears the signatures of Abhishek Sharma alongwith photograph of Abhishek is proved as Ex. CW2/2. The said account was opened through ICICI Prudential Life Insurance is proved as Ex. CW2/3 and the certified copy of the statement of account is proved as Ex. CW2/4. Complainant has also examined CW3 Sh. Satish Kumar, Ahlmad in the Court of Sh. D.K. Jangala, the then Ld. ARC. This witness proved the certified copy of the promissory note dated 15.09.04 amounting to Rs. 1,47,000/ as Ex. CW3/1, another promissory note dated 15.09.04 amounting to Rs. 80,000/ as Ex. CW3/2 and another promissory note dated 15.04.2001 amounting to Rs. 50,000/ as Ex. CW3/3. The notice dated 07.09.2007 issued by accused is proved as Ex. CW3/4 and the telegrams issued to the accused on various dates are proved as Ex. CW3/5 to Ex. CW3/14.
On the other hand, accused examined himself as DW1 and CA old No. 61/12 & New No. 55/15. Page No5/15 proved the certified copy of conveyance deed as Ex. DW1/1. He has also proved the legal notice sent to Sunil Kumar as Ex. DW1/2 and registered A.D receipt as Ex. DW1/3.
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. Complainant deposed that in discharge of loan advanced by the complainant, respondent issued a cheque bearing No. 848605 amounting to Rs. 3,89,000/. In the cross examination this witness had deposed that loan was secured against promissory note dated 15.04.2001. In the cross examination this witness has stated that cheque bearing No. 848605 pertaining to the present complaint was handed over to him by the accused between 1820.01.2008. This witness stated that loan carried an interest @ 1.5% per month. The complainant has also examined Sh. Arvinder Kumar S/o Sh. Hans Raj, Officer, ICICI Bank, Punjabi Bagh Branch, Delhi. This witness has deposed that cheque bearing No. 848605 which is Ex. CW1/1 has been got dishonoured due to "insufficient funds" and Ex. CW1/2 has been issued by their bank stating the reason "insufficient funds". In the present case, complainant has also CA old No. 61/12 & New No. 55/15. Page No. 6/15 examined CW3 Sh. Satish Kumar, Ahlmad in the Court of Sh. D.K. Jangala, the then Ld. ARC. This witness has proved the promissory note dated 15.09.2004 amounting to Rs. 1,47,000/ as Ex. CW3/1. Ex. CW3/1 shows that this promissory note is in respect of amount of Rs. 1,47,000/ and this is for arrears of rent upto 14.07.2004 and the amount was settled on 15.09.2004. Similarly, Ex. CW3/2 is promissory note amounting to Rs. 80,000/ and this pronote is in respect of amount of 50,000/ + 30,000/ and this pronote was made on 15.09.2004. The promissory note Ex. CW3/3 is in respect of Rs. 50,000/.
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 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/ accused has appeared as DW1 and stated that he never executed the cheque No. 848605 of ICICI Bank, Punjabi Bagh Branch in favour of the complainant and reiterated that he had obtained loan of Rs. 50,000/ from Sunil Kumar and he had given the aforesaid cheque No. 848605 to Sunil Kumar in consideration of Rs. 50,000/. The accused proved the CA old No. 61/12 & New No. 55/15. Page No7/15 conveyance deed as Ex. DW1/1 and notice send to Sunil Kumar as Ex. DW1/2. During cross examination accused admitted that Ex. CW1/1 bears his signatures at point A. The accused admitted receipt of legal notice and also sent a reply. This witness/ accused admitted that there are documents in respect of Sunil Kumar but not document has been placed on record to show that there was loan transaction of Rs. 50,000/ with Sunil Kumar nor Sunil Kumar was produced in the witness box to prove his defence.
8. During arguments, it is contended by ld. Counsel for the appellant that Ex. CW3/1 and CW3/3 does not bear the signatures of the accused. The complainant has examined CW3 Sh. Satish Kumar, Ahlmad in the Court of Sh. D.K. Jangala, the then Ld. ARC and this witness has proved the certified copies of pronotes as Ex. CW3/1 to Ex. CW3/3. No handwriting expert has been examined by the accused to prove that Ex. CW3/1 to Ex. CW3/3 do not bear his signatures. Thus, this contention of ld. Counsel for the appellant carries no force.
9. 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.
CA old No. 61/12 & New No. 55/15. Page No. 8/15
I have perused both the judgments. In both the judgments, the accounts 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 on this basis the appellant was acquitted in CC No. 274/09/07 & CC No. 275/09/07. Thus, this contention carries no force.
10. In 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. 20 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 CA old No. 61/12 & New No. 55/15. Page No9/15 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 Parma" 2002 (1) SCC 234, "V. Munikrishnaiah Vs. C. Janakirama Naidu & Anr." 2005 (2) DCR 284 and "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. The ld. MM has rightly held that complainant has not been cross examined on the point that Sunil Kumar is known to him and in connivance with Sunil Kumar, he has hatched a conspiracy to falsely implicate the accused in the present case. The ld. Trial Court has also dealt the contention that cheque has not been filled by the accused. The ld. MM has rightly held 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.
11. 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 CA old No. 61/12 & New No. 55/15. Page No. 10/15 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 was not issued in discharge of any debt or liability.
12. 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 promissory notes CA old No. 61/12 & New No. 55/15. Page No11/15 Ex. CW3/1 to Ex. CW3/3 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 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. Satish Kumar, Ahlmad in the Court of Sh. D.K. Jangala, the then Ld. ARC appeared in the witness box as CW3 and this witness has proved the documents Ex. CW3/1 to Ex. CW3/3 i.e. promissory notes. The respondent has proved the documents by examining Ahlmad in the Court of Sh. D.K. Jangala, the then Ld. ARC where the original documents were pending. If, these documents were not signed by the CA old No. 61/12 & New No. 55/15. Page No. 12/15 appellant then he must have examined some handwriting expert that promissory notes Ex. CW3/1 to Ex. CW3/3 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 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 promissory notes.
13. In view of the above discussions, I do not find any infirmity or CA old No. 61/12 & New No. 55/15. Page No13/15 illegality in the impugned judgment dated 6.11.2012 passed by the trial court in CC No. 438/09/2008 and it is upheld. The appeal filed by the appellant is without any merits and same is hereby dismissed.
14. 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. 60/12 & New No. 49/15 be run 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 six month and to pay compensation of Rs. 4,25,000/ 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 CA old No. 61/12 & New No. 55/15. Page No. 14/15 simple imprisonment for a period of six month and to pay compensation of Rs. 4,25,000/ 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. 60/12 & New No. 49/15 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 this appeals is distinct from CA Old No. 60/12 & New No. 49/15. 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. 61/12 & New No. 55/15. Page No15/15