Delhi District Court
Dr. Ravi Prakash vs Sh. Rama Kant Sharma on 25 September, 2017
1
IN THE COURT OF SH. NARINDER KUM AR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Appeal No. 176/2017
In the matter of:
DR. RAVI PRAKASH
S/o L. Shivalingaiah,
R/o Kala Farm, Rajarajeswari Nagar, PO,
Bangalore 560098 .....Appellant
Versus
SH. RAMA KANT SHARMA
S/o Late Sh. Niranjan Lal Sharma,
R/o E1, Vishnu Garden, Railway Station,
Near Chrag Hospital,
Gurgaon (Haryana) .....Respondent
Date of Institution: 28.08.2017
Date of Judgment: 25.09.2017
JUDGMENT
Appellant herein has been convicted and sentenced. for an offence U/s 138 of Negotiable Instrument Act, by Ld. Metropolitan Magistrate, in complaint case no. 526/1 of 2009 (CIS No. 532745/16) vide impugned judgment dated 08.08.2017 and order on sentence dated 10.08.2017. The convict has been sentenced by Ld. Trial Court to undergo SI for two years and also to pay compensation of Rs. 26,50,000/ to the complainant (respondent herein) U/s 357(3) Cr.P.C. and that in default of payment of amount of 2 compensation, he shall have to undergo further SI for six months.
2. In brief, case of the complainant, as per substance of accusation available in the notice U/s 251 Cr.P.C., is that the appellant issued cheque no. 453876 dated 14.01.2009 for a sum of Rs. 15,00,000/ drawn on City Bank in discharge of his liability, but when the said cheque was presented for encashment, it was received back as dishonoured vide cheque return memo dated 13.02.2009 with remarks "Accounts closed" and the appellant failed to discharge his liability within the stipulated period, despite service of legal notice dated 27.02.2009.
3. Record reveals that on service of notice U/s 251 Cr.P.C. , accused pleaded not guilty and claimed trial. He further pleaded that the complainant was a stranger to him and that he neither borrowed any loan from the complainant nor issued him any cheque.
4. In order to prove his case, complainant tendered his evidence in affidavit as Ex. CW1 and documents as Ex. CW 1/A to CW1/5 and Ex. CW1/X and CW1/Y. Complainant also examined CW2 Neeraj Thukral who tendered in evidence his affidavit Ex. CW2/A. 3
5. When examined U/s 313 Cr.P.C., accused denied all the incriminating circumstances appearing in evidence. However, he did not lead any evidence in defence despite opportunity.
6. Conclusion of trial ended with conviction of accused/appellant and order on sentence in the manner indicated above.
7. Hence this appeal.
8. Learned Senior Advocate for appellant has argued that there could not be good relations between the parties in view of the what has appeared in evidence. In this regard reference has been made to the crossexamination of the complainant.
Another submission put forth by learned Sr. Advocate is that complainant failed to prove before the Trial Court the source of money which he stated to have paid to the appellant by way of loan. Reference has been made to the cross examination of the complainant recorded on 07.07.2012 wherein he stated that he was in the business of solar films and that he did not file any income tax return.
Learned Senior Advocate has submitted that as per well settled law Court has to presume a negotiable instrument to be for consideration unless the existence of consideration is disproved that is the Court either believes that consideration 4 did not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the case, act upon the supposition that consideration did not exist. The contention is that in this case no presumption of passing of consideration could be drawn.
In support of his submission, learned Senior Advocate has referred to decision in:
1. M. S. Nayarana Menon @ Mani v. State of Kerala & Anr. (2006) 6 Supreme Court Cases 39.
2. Devender Kumar v. Khem Chand 233 (2015) Delhi Law Times 419
3. G. Pankjakshi Amma & Ors. v. Mathai Mathew & Anr. (2004) 12 Supreme Court Cases 83.
4. Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 Supreme Court Cases 1325.
9. On the other hand, learned counsel for respondent complainant submitted that learned Trial Court has held the accused guilty of the offence under Section 138 of the Act for the reasons recorded in the judgment and that from the material on record, it cannot be said that parties were ot having good relations with each other so as to rule out possibility of lending of money to the accused by the complainant at the relevant time.
5As regards the source of money, learned counsel for the respondent - complainant submitted that even in this regard, complainant categorically explained that the money which he lent was paid to him by his father on sale of his property, and that there is nothing on record to disbelieve the testimony of the complainant in this regard.
Another submission put forth by learned counsel for respondent - complainant is that even if no sale deed was produced on record, the complainant examined before the Trial Court CW2 Neeraj in proof of what conversation took place between the complainant and the accused followed by execution of document.
About payment of money, learned counsel further submitted that onus to prove the defence plea was on the accused but he failed to prove his defence plea. Further it has been pointed out that accused was given opportunity to summon one Chamman Lal to rebut evidence the point of sale but he did not examine him for the reasons best known to him and as such defence plea put forth by the accused has been rightly rejected by the Trial Court.
In support of his submissions, learned counsel for respondent has referred to decisions in:
1. L. Mohan v. Mohan Naidu, 2004 Crl. L. J. 3177.
2. Rangappa v. Sri Mohan, (2010) 11 Supreme Court Cases 441.
63. Laxmi Dyechem v. State of Gujarat, 195 (2012) Delhi Law times 111 (SC)
4. K. N. Beena v. Muniyappan & Anr., 2002 (1) Civil L. J. (SC)
5. Dr. Sampathkumar B. V. v. Ms. Dr. K. G. V. Lakshmi 2006 Cril. L. J. 2267 and
6. Kulvinder Singh v. Kafeel Ahmed 2013 II AD (DELHI)
81.
10. Cheque Ex.CW1/1 is dated 14.1.2009, issued in favour of Ramakant Sharma, for a sum of Rs.15 lac. It was crossed with words A/c Payee only and drawn on Citibank. On its reverse side, it bears stamp of Clearing dated 29.1.2009 affixed by Bank of Baroda, Service Branch, New Delhi.
Ex.CW1/2 is cheque return memo dated 13.2.2009, which depicts reason for return of the cheque, as dishonoured. The reason given is Account Closed.
Ex.CW1/3 is copy of demand notice dated 27.2.2009 purported to have been sent by the complainantrespondent, through his Advocate, to the appellant, apprising him of the cause of action on the basis of dishonour of the cheque issued by him in favour of complainant, when presented for encashment, and calling upon him once again to make payment of the cheque amount within 15 days from the receipt of the notice, or to face prosecution in the criminal complaint 7 which he shall be compelled to file on his failure to make payment.
Ex.CW1/4 and Ex.CW1/5 are the postal receipts dated 28.2.2009 in proof of despatch of the legal notice by the complainant to the accusedappellant at the given addresses, by speed post and under postal certificate.
Ex.CW1/B is consideration receipt dated 7.7.2008 purported to have been issued by the accused in favour of the complainant to have received Rs. 15 lacs, being the consideration amount of the pronote executed by him on the same day in favour of the complainant, in presence of two witnesses namely Neeraj Thukral and Vijay.
Ex.CW1/A is demand promissory note dated 7.7.2008. Vide this document, accused promised to pay to the complainant a sum of Rs.15 lacs.
Ex.CW1 is the affidavit of the complainant tendered in Court by way of evidence.
11. From the very beginning, it is case of the complainant that the parties herein were acquainted with each other and knew each other since long. As per his testimony, in the month of July, 2008, the accused approached him with request for loan of Rs. 15 lacs as he was in urgent financial crisis. Looking into good relation, he advanced Rs. 15 lacs to the accused. It was advanced for a short period and the accused executed 8 promissory note and receipt dated 7.7.2008 at the time he received this amount from him. Witnesses also signed in his presence on these documents.
As further testified by the complainant, to dischasrge the liability, accused issued in his favour, the aforesaid cheque for Rs.15 lacs, but when the same was presented for encashment, it was received back as dishonoured, vide aforesaid cheque return memo, whereupon he approached the accused and demanded the cheque amount, but he refused to pay and misbehaved with him, which led to issuance of aforesaid legal notice dt.27.2.2009.
12. During the days, the loan was advanced, according to the complainant, he was working with a private organization at Azadpur, Delhi and as such he got executed the promissory note and the receipt from him. In crossexamination, he explained that his job was to fix solor films on cards and he used to earn Rs.10,500/per month.
It is in his crossexamination that he came to know the accused through his owner Ramesh Gupta of Azadpur, who is close friend of the accusedappellant and that Ramesh Gupta is in the business of UPVC of doors and windows and has factory at Sonepat.
Notably, accused did not examine said Ramesh Gupta to rebut the testimony of the complainant on the point of 9 employment of complainant and his own friendship with said Ramesh Gupta.
As regards the two witnesses to the receiving of consideration from the complainant, in his cross examination the complainant stated that Neeraj Thukral worked as a Salesman and Vijay Rawat as Accountant.
Admittedly, he did not file any income tax returns. But, simply non filing of any income tax returns does not create any doubt in the version of a person, like the complainant, when there is nothing on record to suggest that he was required to file any return, as rightly argued by learned counsel for the complainantrespondent herein. In Devender Kumar's case, the petitioner was an Income Tax Assessee, but he had not shown advance of loan to the respondent in his ITRs. He could not produce his ITRS for the relevant years and as such adverse inference was drawn against the petitioner. The case being distinguishable on facts, decision in Devender Kumar's case does not come to the aid of the accusedappellant.
13. As regards source of money paid by him to the accused, in his crossexamination the complainant stated that his father had sold his land situated in village Harsoli, District Alwar, Rajasthan and this amount was from the sale proceeds which he got from his father.
1014. CW2 Neeraj Thukral supported the version of the complainant, when he stated that he worked as a Salesman with Ramesh Gupta of Sun Control Systems, Anupam Bhawan, Azadpur, Delhi and Kundli, Sonepat; that complainant also worked with Ramesh Gupta; that the accusedappellant herein was known to him, being highly educated, rich person and fast friend of Ramesh Gupta; that the accusedappellant was having good relations with him, complainant and other employees at the offices of Sun Control System of Ramesh Gupta, because he usually visited their office.
He further supported the complainant about the present transaction, payment of Rs.15 lacs by the complainant to the accusedappellant by way of loan, repayable as and when the complainant demanded it back, assuring that he shall issue cheque for this amount payable after 6 months from the date of advancement of loan.
He further supported the case by deposing about execution of the two documents and his having signed as attesting witness in addition to Sh.Vijay Rawat, Accountant, the other witness on receipt Ex.CW1/B, executed at the office of Ramesh Gupta.
He also proved execution of Demand promissory note Ex.CW1/A and identified the signatures of the accused on the promissory note and the receipt. He also identified signatures of the other attesting witness on the receipt, stating 11 that he has been seeing him signing at their office. Further, he deposed about forwarding of the cheque by the accused for Rs.15 lacs while assuring the complainant of its encashment.
In his crossexamination, CW2 denied that no loan was advanced by the complainant to the accused or that the cheque is a forged document. Rather, the witness volunteered that the cheque was signed by the drawer in his presence. He further denied that promissory note was neither filled in or signed or handed over to the complainant. He further denied that receipt Ex.CW1/B was not signed by him on 7.7.2008 or that the accused never handed over the same to the complainant.
As held in Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, in view of Section 138 and 139 of the Act it is obligatory on the court to raise presumption of liability of the drawer of the cheque for the amount for which the same is drawn, where the factual basis for raising of presumption is established.
In Laxmi Dyechem's case (supra), Hon'ble Apex Court clearly held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
In this regard, reference may also be made to decision in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35, wherein it was observed that bare denial of the passing of the consideration apparently does not appear to 12 be any defence and that something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the other party.
In Laxmi Dyechem's case, it was held that if the accused neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the Act regarding commission of the offence under Section 138 comes into play, if the same is not rebutted with regard to the material submitted by the complainant.
Herein, Court does not find any fault with the finding recorded by Learned Trial Judge that the complainant successfully established his case and that burden was upon the accused to rebut the statutory presumptions under Section 118 and 139 of the Act, but he miserably failed to rebut the same.
15. As regards source of money paid, CW2 stated in his crossexamination that father of the complainant had considerable amount of immovable property and that he had learnt from the complainant having to Rs.20 lacs from his father and that he wanted to purchase land in Delhi.
CW2 denied that he filed affidavit by way of evidence at the instance of Ramesh Gupta, his employer or that Ramesh Gupta was pursuing this proxy litigation through the complainant.
13Same suggestion was put to CW1complainant in his crossexamination, but he denied the same.
Reference may be made to decision in Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm, (2008) 7 SCC 655, wherein the emphasize is that initial burden to prove non existence of consideration is on the accused. This is in consonance with the decision in M.S.Narayana Menon's case (supra) cited by learned Senior Advocate for the appellant.
In M.S.Narayana Menon's case (supra), cheque issued by the appellant in favour of the sharebroker was received back due to insufficiency of funds and the defence put forth was that said cheque was given to the sharebroker byway of loan to tide over his financial difficulties, and the evidence showed that the appellant had succeeded in dischasrging his initial burden, which then shifted to the complainant, but the complainant failed to discharge the same and adverse inference was drawn against the complainant due to non production of his statutotry books of accounts in relation to the transaction.
The case of M.S.Narayana Manon is distinguishable on facts. Here, there is nothing on record to suggest that the accusedappellant succeeded in discharging his initial burden, what to say of the same having shifted to the complainant. Rather, this is a case, where the appellant failed in discharging his initial burden.
14In G.Pankajakshi Amma's case (supra), suit for recovery was based on illegal transactions, respondent having entered into chit fund transactions with the appellants, but having not produced any books of accounts, Court found that there was material to rebut the presumption under Section 118 of the Act. Here is a case under Section 138 of the Act, not based on any illegal transaction. Therefore, decision referred to also does not come to the help of the appellant.
16. In this case, had the two witnesses stepped into the witness box to depose against the accused at the instance of Ramesh Gupta, their employer, it was for the accused to put forth some material to suggest as to why they had so stepped into the witness box and as to why Ramesh Gupta would fight this proxy litigation with him. But, there is not even a whisper in this regard, what to say of any evidence from the side of the accused.
17. As regards signatures of the accused on the promissory note and receipt, in his statement under Section 313 Cr.PC, the plea of the accused is " my signatures are matter of record". In his statement under Section 313 cr.PC, the accused nowhere specifically pleaded that the cheque does not bear his signatures.
Had the receipt been forged by the complainant in 15 connivance with the two attesting witnesses, accused would not have spared anyone of them of the criminal prosecution. Admittedly, accusedappellant never lodged any complaint against the complainant or the two attesting witnesses to the receipt that they had forged the same. There is no explanation in this regard from the accused. Therefore, it cannot be said that the observations made by the learned Trial Court were uncalled for.
18. Admittedly, the accused did not reply the demand notice. There is no explanation in this regard. Had he not entered into any such transaction with the complainant, he would have at once replied the same denying all the material allegations levelled by the complainant against him. In view of decision in Rangappa V. Sri Mohan, (2010) 11 SCC 441, an inference can safely be drawn against the accused that there is merit in the case of the complainant.
19. Accused could step into the witness box before the Trial Court as his own witness, but despite ample opportunity in this regard, he did not care and dare to do so. It is true that as observed in Krishna Nanardhan Bhat's case, accused is not required to step into witness box and he may discharge his burden on the basis of masterial already brought on record, but here in the given facts and circumstances, non appearance of 16 the accused as own witness is one of the circumstances which has rightly been taken into consideration by the Learned Trial Judge.
20. The appellant having not led any evidence or brought on record any material to rebut the presumption under Section 118 and 139 of the Act, it can be said he did not bring on record any material which would have made a reasonable and prudent person believe that the explanation put forth by him was the most probable outcome.
21. In the given facts and circumstances, simply from non production of any document by the complainant about sale of land by his father cannot be said to have adversely affected the case of the complainant so as to create any doubt in the version of the complainant about lending of money to the accused on the given date, time and place and about execution of the documents in presence of the two attesting witnesses.
In view of the above discussion, court does not find any merit in the contentions raised on behalf of the appellant that there was no relationship between the accused and the complainant or that the complainant had no source of money for being lent to the accused.
1722. In the given facts and circumstances, simply from non production of any document by the complainant about sale of land by his father cannot be said to have adversely affected the case of the complainant so as to create any doubt in the version of the complainant about lending of money to the accused on the given date, time and place and about execution of the documents in presence of the two attesting witnesses.
23. One of the contentions raised on behalf of the appellant is that summary procedure is to be adopted in suchlike complaint cases, but herein summons case procedure was initiated by the Trial Judge, without hearing the accused on this point.
Here, since the accused pleaded not guilty to the substance of accusation read over and explained to him, Learned Trial Judge proceeded with the case as a summons case strictly in view of the directions contained in Crl. MC No.1996 of 2010, Rajesh Agarwal v. State and Another, decided by our own Hon'ble High Court on 28.7.2010 and no illegality can be said to have been committed by Learned Metropolitan Magistrate in conducting the proceedings.
24. So far as sentence is concerned the cheque is dated 14.01.2009 and it was received back as dishonoured on 13.02.2009 but the accused appellant failed to discharge legal 18 liability under the cheque, despite service of legal notice. As a result of which complainant had to file criminal complaint on 25.03.2009. Keeping in view all this and amount of the legal liability which accusedappellant failed to discharge eversince February / March 2009, Court does not find any ground to interfere in the order on sentence.
25. In view of the above discussion, finding no merit in the appeal, same is hereby dismissed.
26. Trial Court record be returned. Appeal file be consigned to Record room.
Announced in the open Court on 25th day of September, 2017 (NARINDER KUMAR) SPECIAL JUDGE, NDPS-02 (CENTRAL) TIS HAZARI COURTS, DELHI