Delhi District Court
Brahm Prakash vs Bijender on 6 August, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Appeal No. 45/11
Unique case ID No. 02404R0329832011
Brahm Prakash
S/o Sh. Mool Chand
R/o House no. 2250, Gali No. 171
Ganeshpura, Tri Nagar
Delhi110035
...Appellant
Versus
Bijender
Sole Prop. Of M/s JMD Marketing Co.
R/o E31, Indra Enclave,
Loni, Ghaziabad
(U.P)
.....Respondent
Date of institution of the case: 25.11.11
Arguments heard on: 31/07/2012
Date of reservation of order: 18/05/2012
Date of Decision: 06/08/2012
JUDGMENT
This is a criminal appeal u/s 372 of Cr.PC against the judgment/ order of acquittal dated 24/10/11 passed by Ld Trial Court.
In brief, the appellant had filed a case u/s 138 N.I. Act against the respondent, which was dismissed vide order dated 24/10/11. The CR No. 45/11 1/8 impugned judgment has been challenged on various grounds by the appellant. It is contended that impugned order is bad in law and against the facts on record. It is further contended that Ld Trial Court dismissed the complaint without going into the merits of the case. It is further contended that Ld Trial Court, while deciding the complaint erroneously acquitted the respondent. It is further contended that Ld Trial Court failed to appreciate the facts and documents filed and proved by the appellant before the Court.
It is further contended that Ld Trial Court failed to appreciate and considered the evidence of complainant and his cross examination.
It is further contended that Ld Trial Court failed to appreciate the agreement cum promissory l.notes in its correct manner. It is further contended that Ld Trial court failed to appreciate the fact that respondent has not lead any defence evidence to prove his version, so the impugned judgment is not sustainable in the eyes of law, hence the same be set aside.
I have heard Ld counsel for appellant and Ld counsel for respondent and gone through the TCR.
According to the complaint, a case was filed u/s 138 of N.I. Act against the respondent. Respondent had taken a personal loan of Rs. 2,33,000/ and issued 16 cheques of Rs.15000/ each starting from 25/08/2007 to 25/09/2008 and the cheques were dishonoured. Four complaint case have been filed against the respondent having three cheques in each. The cheques were dishonoured with remarks " payment stopped". Legal demand notice was issued and thereafter complaint case was filed.
At the time of notice, respondent did not raise any defence. Affidavit was tendered in evidence and appellant was cross examined, CR No. 45/11 2/8 wherein appellant had explained that at the time of execution of agreement cum promissory note Ex. CW1/1, the respondent had forgotten to prove the cheques and told him to hand over the cheques within two days. So the serial number of the cheques could not be filled up in the said agreement. In the cross examination, appellant had further stated that the stamp paper has been obtained by respondent and he had signed in the register of stamp vendor in his presence and respondent had also signed in the register of notary Public, who had attested the agreement Ex. CW1/1. The appellant had further explained that 16 cheques were issued by the respondent against the loan amount and has further denied the suggestion that 16 cheques were issued by accused as security and in this respect, in the cross examination, appellant has further explained that he sold the Amul biscuits against the cash purchase receipt and no payment was due against the respondent in respect of billing against M/s JMD Marketing company.
Ld Trial Court while discussing the agreement cum promissory note relied upon various judgments and doubted the same. Ld Trial Court has further held that respondent has created a reasonable doubt in respect of accumulation of money, existence of liability and issuance of cheques for consideration, so the complaint case was dismissed.
According to TCR, the respondent did not reply to legal notice and hence there was no rebuttal to the contents of the notice. The appellant was confronted by the respondent with notice dated 12.11.07, whereas the appellant had denied the suggestion that cheques were given in security, then it was for the respondent to prove the same that cheques were given as a security. Ld Trial Court heavily relied upon the blank space in agreement CR No. 45/11 3/8 cum promissory note Ex. CW1/1 and further the contents, wherein it is mentioned that the first party i.e. respondent has decided to give 16 cheques to second party i.e. appellant and in next paragraph it is mentioned that first party agrees that 16 cheques given in repayment by aforesaid loan and in para 2 of the same, it is mentioned that 16 cheques given by first party to second party are starting from serial number, which is lying blank.
Ld Trial Court has further relied upon the fact that as serial number were not mentioned in the agreement, hence the same cannot be believed.
Ld Trial Court has further held that complainant had not mentioned in his complaint that he was having any business relation with the respondent. Ld Trial Court has further held that complaint has claimed to have no knowledge of business of accused, whereas he was knowing the accused for last several years and has also admitted some business dealings with the accused firm. Ld Trial court has further held that complainant has failed to dispute the letter of accused demanding blank cheques and other documents and further that complainant has failed to establish any reply to such letter of the accused, whereas he claimed to have sent a reply.
Ld Trial Court has furthr relied upon that there are several inconsistencies in the agreement cum promissory note, which are going against the complainant.
To my mind, all these facts were not required to be mentioned in the complaint because it was a matter of evidence as to how the complainant was knowing the respondent and it has been mentioned in the complaint that he was knowing the respondent for last several years and friendly loan of CR No. 45/11 4/8 Rs.2,33000/ with interest @ 7% was provided to the respondent spreading into 16 installments of Rs.15000/ each. These cheques were not have been disputed by the respondent instead he has stated that the cheques were issued as security to the business dealing, but in the cross examination also complainant has stated that whatever the business dealing was, it was in cash and no payment was due towards appellant and complainant has also denied that these cheques were issued as security, hence these findings of Ld Trial Court are not forceful, in any manner. More so, appellant/complainant has denied that these cheques were issued in security.
Most of these cheques are given of each month starting from August 2007 till November 2008 and if these were given as security then why all of sudden the respondent demanded back these cheques from the complainant vide noticed dated 12/11/2007 and not before that. Not only this, he also got stopped the payment in November 2007 and complaint was given in December 2007 and there is no explanation on the part of respondent as to why in November only he demanded back these cheques alleging therein that these were given as security and not prior to that. It seems to be highly improbable that for about four months, he waited for supply of goods, which were not delivered despite the repeated demand and requests and all of sudden he got issued the notice dated 12/11/07 and further got stopped the payment of the cheques vide letter dated 14/11/07. So, the conduct of respondent itself is suspicious. Merely a suggestion has been given that agreement cum promissory note Ex. CW1/1 was manipulated and prepared in the house of complainant. The language of Ex. CW1/1 is poorly drafted, which shows that either the same was drafted by a layman or by the typist and CR No. 45/11 5/8 because of this reason, different words have appeared regarding the fact of giving cheques. In the cross examination, complainant had clarified that at the time of execution of agreement, the respondent had not brought the cheques and told him that he will hand over the same within two days and thereafter he had issued the cheques and handed over the same to him. This fortifies the fact that because of this reason serial number of cheques are not appearing in this agreement. It is also proved that Ex. CW1/1 was signed by him and there is no counter reply or evidence to the cross examination of complainant, wherein he has stated that the respondent had signed in the register of stamp vendor at the time of purchase of stamp paper, in his presence and had also signed in the register of notary public, while Ex. CW1/1 was attested. This fact itself falsify the contention of respondent that agreement cum promissory note is false and fabricated. The language of the agreement cum promissory note Ex. CW1/1 has clearly and categorically proved that there was loan transaction and in discharge of the same, respondent issued 16 cheques of Rs.15,000/ and later on respondent took the somersault and denied the liability and after about four months of issuing the cheques, started taking the defence that these were issued as security.
Ld Trial Court has further held that complainant business was already closed and it is not explained as to why cheques were presented in lot of three and at one go. Ld Trial court has further held that cheques pertains to bank account of proprietorship firm and not of any individual whereas personal loan was taken. It is further held that complainant had never disclosed the resource of money though he claimed that the loan amount was arranged by him from his own resources.
CR No. 45/11 6/8
From the cross examination of complainant, it is clear that he was carrying business of Amul biscuits in the name of M/s Raj Agro, hence being the businessman, it seems to be improbable that he was not having even petty amount of Rs.2,33,000/ with him to provide as loan amount to the respondent. If the cheques were issued from by accused his proprietorship concern i.e. M/s JMD Marketing Company, then it was for the respondent to see from which account, he wanted to repay the loan amount and it was not for the complainant to see whether the cheques were given from the personal account or from the firm account. More so, M/s JMD marketing company is a proprietorship concern, so merely on this ground, the court cannot presume that these cheques were given as security by respondent. Three cheques were presented in one go, after the date of last cheque, so it cannot be said that complainant was having any ill will in his mind. The complainant could have presented the cheques each month but instead he presented three cheques after the date of last cheque at one go, which cannot be doubted in any manner.
To rebut the presumption, respondent/accused was having two ways. First is to cross examined the complainant, wherein the complainant has denied that the cheques were issued as security and other is to prove the same by leading an evidence on his behalf. Respondent/accused has not examined himself or has examined any other witness to rebut the presumption. So, merely by giving the suggestions to complainant in his cross examination about the fact that cheques were given as security, cannot be deemed to be sufficient to rebut the presumption as raised by law in favour of complainant.
CR No. 45/11 7/8
In view of the above, the findings of Ld Trial Court are erroneous and are illegal. Ld Trial Court also traveled beyond the basic concept of the complaint filed u/s 138 N.I. Act and conducted roaming inquiry without touching the core issue, so the judgment is not sustainable in the eyes of law and hence is set aside. The matter is remanded back to Ld Trial Court to hear and decide afresh on the material already brought on record.
Accordingly, impugned judgment dated is set aside.
Both the parties are directed to appear before Ld Trial Court on 09/08/2012.
TCR be sent back with the copy of the order.
Appeal file be consigned to record room.
Announced in Open Court on (Virender Kumar Goyal)
dated 6th of August , 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CR No. 45/11 8/8