Delhi District Court
Pawan Aggarwal vs . Harish Chander @ Harish Sharma on 21 August, 2014
Pawan Aggarwal Vs. Harish Chander @ Harish Sharma
CA No. 03/14
IN THE COURT OF DR. VIJAY KUMAR DAHIYA, A.S.J.02,
DWARKA COURTS, NEW DELHI.
In the matter of :
Pawan Aggarwal
S/o Sh. Ram Kumar Aggarwal
R/o Flat No. 313, L&T Sri Awas Society,
Sector18B, Dwarka,
New Delhi.
Also at:
R/o Flat No. 166, LIG,
L&T, Sri Awas Society,
Sector18B, Dwarka,
New Delhi.
Also at:
L99, 1st Floor,
GL21, N. Mahavir Nagar,
New Delhi.
Also at:
342, Garage on Flat No. 342,
LIG, L&T Sri Awas Society,
Sector18B, Dwarka,
New Delhi.
..... Appellant/Convict
VERSUS
Harish Chander @ Harish Sharma
S/o Sh. Gulab Rai Sharma,
R/o Flat No. 266, Top Floor,
C.A. No.03/14 Page 1 of 10
Pawan Aggarwal Vs. Harish Chander @ Harish Sharma
CA No. 03/14
Rosewood Apartment,
Sector13, PocketA,
Dwarka, New Delhi.
..... Respondent
CA No. 03/14
Date of Institution: 04.01.2014
Reserved for orders on: 20.08.2014
Judgment announced on:21.08.2014
JUDGMENT
1. Vide this order I shall dispose off this appeal challenging the impugned judgment dated 27.11.13 and order on sentence dated 06.12.13.
2. Brief facts of the case of the complainant filed by the complainant/respondent are that the complainant had given a friendly loan of Rs. 4,60,000/ for a period of three months to the appellant/accused. The appellant/accused could not return the said amount and the complainant gave him time to make payment of the said friendly loan. Ultimately appellant/accused had C.A. No.03/14 Page 2 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 given him three cheques bearing no. 256231 dated 19.10.11 for Rs. 1,60,000/, 256232 dated 20.10.11 for Rs. 2,00,000/ and 256233 dated 21.10.11 for Rs. 1,00,000/. A cheque bearing no. 256233 for amount of Rs. 1,00,000/ was returned unpaid with the remarks "funds insufficient". Thereafter, complainant issued a legal demand notice for making the payment of cheque amount within 15 days but the appellant/accused failed to pay the amount. Complainant/respondent filed the present complaint after holding trial found the accused guilty and convicted him and sentenced accordingly.
3. Feeling aggrieved by the impugned judgment and order on sentence the present appeal has been filed.
4. It has been contended that before presentation of the cheque in question the appellant/accused has issued a legal notice dated 13.08.11 informing the complainant/respondent not to misuse the cheque in question, therefore from this legal notice it can be inferred that on the day of presentation of the cheques no legally recoverable debt was payable by the appellant/accused to the respondent/complainant. The C.A. No.03/14 Page 3 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 security cheques given by the appellant/accused has been misused by the accused/respondent. Otherwise also security cheque cannot be subject matter of 138 N.I proceedings. The counsel for the appellant/accused has cheated him and had sought withdrawal of the legal notice dated 13.08.11 without any valid reason. The appellant has paid the entire loan amount to the complainant/respondent. On the day of issuance and presentation of cheque not even a single penny was payable by the appellant/accused to the respondent. These facts have not been rightly appreciated by Ld. Trial Court and this appeal deserves to be allowed and impugned judgment and order on sentence be set aside. Appellant be acquitted of all the charges by giving benefit of doubt.
5. Per contra, Ld. Counsel for the complainant/respondent has contended that the appellant/accused has given cheques in question as security as he was unable to repay the loan amount and security cheques can be subject matter of criminal proceedings u/s. 138 of N.I. Act as those cheques were issued for liability payable in presenti but deferred to a future date. Therefore, cheque C.A. No.03/14 Page 4 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 in question was issued for consideration and appellant/accused is liable to pay the said amount and he has been rightly convicted by Ld. Trial Court. There is no substance in this appeal and this appeal deserves to be dismissed.
6. I have heard the parties and gone through the Trial Court record.
7. First contention of the counsel for the appellant is that he has issued a notice dated 13.08.11 (Mark A) that the security cheques be not presented for honour. Therefore, he has no obligation to make any payment. But this contention appears to be attracted but the same is fallacious and hereby rejected in as much as the said notice (Mark A) was withdrawn by the appellant/accused in terms of Ex. CW1/2. Therefore, it cannot be stated that the appellant had issued legal notice and had not withdrawn the same. It may be noted here that CW2, Dinesh Kumar Sharma, who was earlier the counsel for the applicant under whose instructions legal notice (Mark A) was returned and later on withdrawn in terms of Ex. CW1/2 has appeared as a C.A. No.03/14 Page 5 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 witness for complainant and admitted the withdrawal of the legal notice by the accused/appellant. The appellant/accused is also playing hot and cold in the same breath as in the notice framed u/s. 251 Cr.P.C he has taken the defence that the complainant has misused his signed cheques given by him as security but when appellant has been examined u/s. 313 Cr.P.C, he has taken a new defence that he has paid the loan amount to the complainant in cash in installments alongwith one Maruti Zen Car of Rs. 1,10,000/ and denied that he has issued the cheque as security cheques.
8. Therefore, the defence of the accused/appellant is contrary to each other at two stages of proceedings in the trial before the Ld. Trial Court. Therefore, the Trial Court has rightly observed that complainant has proved on record that the cheque in question were issued in consideration. The defences taken by the appellant are inherently irreconcilable. No evidence has been led by the accused/appellant that car in question was given to the complainant/respondent in lieu of the part payment of loan amount. Even the accused has not appeared as witness to prove that the said Maruti Zen C.A. No.03/14 Page 6 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 Car was given to the complainant as part payment of the liability owned by the accused/appellant to the complainant and the testimony of other defence witness did not inspire confidence and has rightly been ignored by the Ld. Trial Court.
9. So far as security cheque is concerned, in this regard, I would also like to reproduce observation made by Hon'ble High Court in Krish International P.Ltd & Ors vs. Manu/DE/0302/2013 while relying upon Shree Bhagwati Apparels India Ltd & Ors v. M/s Bibby Financial Services India Pvt. Ltd Crl. Misc. No. M31977/10 which is as under:
8. There is no dispute about the proposition of law as laid down in M/s. Collage Culture that a cheque issued not for an existing due but issued by way of security would not attract the provisions of section 138 of the Act. In M/s Collage Culture the Ld. Single Judge of this Court (Pradeep Nandrajog, J.) drew distinction between a cheque issued for a debt in present but payable in future and second for a debt C.A. No.03/14 Page 7 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 which may become payable in future upon the occurrence of a contingent event. Para 20 to 24 of the report in M/s. Collage Culture are extracted hereunder:
20. A post dated cheque may be issued under two circumstances. Under circumstance one, it may be issued for a debt in present but payable in future. Under second circumstance it may be issued for a debt which may become paybale in future upon the occurrence of a contingent event.
21. The difference in the two kinds of post dated cheques would be that the cheque issued under first circumstance would be for a debt due, only payment being postponed. The latter cheque would be by way of a security.
22. The word 'due means 'outstanding at the relevant date'. The debt has to be in existence as a crystallized demand akin to a liquidated damages and not a demand which C.A. No.03/14 Page 8 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 may or may not come into existence; coming into existence being contingent upon the happening of an event.
Therefore, security cheque can be subject matter of proceedings u/s 138 N.I Act if issued for consideration payable payable in presenti but deferred to a future date.
12. From the above discussion, I am of the opinion that this appeal is devoid of merits and is hereby dismissed.
13. Trial Court record be sent back with a copy of the order for information and necessary compliance.
Appeal file be consigned to record room.
Announced in open (Dr. Vijay Kumar Dahiya) Court on 21.08.2014 ASJ/Dwarka Courts/ Delhi 21/08/2014 C.A. No.03/14 Page 9 of 10 Pawan Aggarwal Vs. Harish Chander @ Harish Sharma CA No. 03/14 C.A. No.03/14 Page 10 of 10