Delhi District Court
Cc No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 1/ 23 on 15 January, 2016
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.2459/1
Simran Pal Singh Suri,
S/o Late Sh. G.S. Suri,
R/o Flat no.77, Pocket Block JG-1,
Vikas Puri, New Delhi. .....Complainant
Versus
Ms. Urvashi Parashar,
W/o Sh. Pradeep Parashar,
R/o C-8/8283, Vasant Kunj,
New Delhi. .........Accused
Date of Institution : 16.07.2011
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 14.12.2015
Date of Decision : 21.12.2015
Final Order : Convicted / Held
guilty
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 1/ 23
Judgment
1.The complainant herein is aggrieved by the dishonor of cheque bearing no. 592502 dated 15.05.2011 drawn on Vijaya Bank R. K. Puram Delhi (hereinafter referred to as the cheque in question/impugned cheque) and hence the present complaint under section 138 of the NI Act.
2. It is the case of the complainant that he had friendly relations with the accused and upon request of financial assistance, he advanced a sum of 25 lacs to the accused in the last week of December 2010. Towards repayment of the said loan amount, the accused issued the cheque in question with the assurance that the same would be encashed upon presentation. However upon presentation, the cheque was dishonored on account of insufficient funds. Consequently, the complainant took recourse to the procedure envisaged under section 138 read with section 142 of the Negotiable Instruments Act 1881 (hereinafter referred to as the NI Act) and sent a legal notice to the accused dated 14.6.2011 demanding payment of the cheque amount. However as the cheque amount was not paid by the accused within the prescribed period of 15 days, the present complaint was filed.
3. The complainant examined himself alone in support of his case by means of affidavit in evidence Ex.CW1/A wherein he reiterated the averments of his complaint and relied upon the following documents namely cheque in question Ex. CW1/1, returning memo Ex. CW1/2, Demand notice and postal receipts Ex. CW1/3, Ex. CW1/4 (colly) and Ex. CW1/5 (colly) respectively. After notice was framed upon the CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 2/ 23 accused under section 251 CrPC, the accused filed an application under section 145 (2) of the NI Act seeking permission to cross examine the complainant. At this stage, a fresh affidavit in evidence Ex.CW1/A was tendered by the complainant wherein he produced and relied upon certain additional documents numbered from Ex. CW1/9 to Ex. CW1/18. Ex. CW1/9 is purportedly a letter of guarantee executed by the husband of the accused in favour of the complainant, Ex. CW1/10 (colly) is the Income Tax Return of the complainant for the period April 2010 to March 2011, Ex. CW1/12 (colly) is the marriage and reception card of one Sh. Sandeep. Ex. CW1/13 to Ex. CW1/17 are photographs of the marriage of the abovementioned Sh. Sandeep. Ex. CW1/18 (colly) is a record reflecting other cases filed against the husband of the accused Sh. Pradeep Parashar.
4. Substance of the accusation was put to the accused in compliance with section 251 CrPC to which she pleaded 'not guilty'. Per contra, she pleaded defence that she did not know the complainant and had not taken the alleged loan amount from him or issued the cheque in question to him. On the contrary, the cheque in question was issued by her husband Sh. Pradeep Parashar to one Sh. Prabhjeet Singh Dimpy alongwith her Skoda car and certain papers as security as he had obtained a loan of 4.5 lacs from him in January 2010. This loan amount had been repaid by her husband but the cheque in question, the car and the papers were not returned by Sh. Dimpy and they have now been misused by the complainant after obtaining them from Sh. Dimpy. In order to prove her defence, the accused stepped into the witness box as DW1 and also examined her husband Sh. Pradeep Parashar and her brother in law Sh. Satyadeep Parashar as CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 3/ 23 DW2 and DW3 respectively. The accused also filed an application under section 145 (2) NI Act and cross examined the complainant.
5. Culpability for the offence of dishonor of cheque under section 138 of the NI Act requires that the accused should have drawn the cheque on a bank account maintained by him and issued the same to the complainant in discharge of a debt or other legal liability. It further enjoins the payee to send a notice to the drawer demanding payment of the cheque amount within 30 days of the dishonor of the cheque. It is only upon non payment of the cheque amount within 15 days of the receipt of demand notice that the complainant is at liberty to file a criminal complaint against the drawer for dishonor of the cheque.
6. In the present case, all the statutory time limits stand complied with. In so far as the receipt of demand notice is concerned, the accused stated during her examination under section 313 CrPC that the same was received by her staff. In other words, there was no absolute denial on part of the accused that the demand notice was not received by her or was not in her knowledge. Therefore there also is a valid service of demand notice upon the accused.
7. Having therefore established that the technical parameters of the offence constituted by section 138 of the NI Act are met by the present complaint, it is opportune to now proceed to the decisive issue i.e. whether the cheque in question was issued by the accused to the complainant in discharge of any legal liability owed to him. The entrenched principle of criminal law requires the complainant to prove his case beyond reasonable doubt. However in so far as the burden of proof in regard to the existence of legal liability is concerned, there is a CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 4/ 23 significant deviation as section 139 and section 118 of the NI Act create a presumption in favour of the complainant. Section 118 enjoins the court to draw a presumption that every negotiable instrument has been drawn for consideration while section 139 enjoins the court to presume that the holder of a cheque has received the same in discharge of liability. This burden can be however discharged by the accused by creating a reasonable doubt in the case of the complainant. Various judicial pronouncements on this aspect have thrown light on how the same can be accomplished by the accused. In one of the more recent judgments namely M/S Kumar Exports v. M/S Sharma Carpets [Criminal Appeal No. 2045 OF 2008, dated 16 December, 2008], the court has articulated the position thus:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.... At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. .......Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant.....The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 5/ 23 by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial."
It was also held in this case that it is not necessary for the accused to step into the witness box in every case.
8. In the context of the specific defence taken by the accused to the effect that the impugned cheque was issued by her husband to Sh. Dimpy and not to the complainant, it is also pertinent to take note of Section 118 (g) which mandates the court to presume that the holder of negotiable instrument is a holder in due course.
9. Therefore let us see if the accused has been able to rebut the presumptions stacked against him.
10. The accused stepped into the witness box as DW1 and reiterated the defence taken by her as abovementioned in her deposition. According to her, the cheque in question alongwith her skoda car and certain papers were given by her husband to Sh. Dimpy.
11. The testimony of the husband of the accused Sh. Pradeep Parashar is crucial in the present case. He led his evidence by way of affidavit Ex. DW2/A wherein he stated that the complainant had no acquaintance with the accused and therefore the question of the accused obtaining any loan from the complainant was out of question. He further stated that he had taken a loan of 4.5 lacs from Sh. Dimpy on 28.1.2010 and against the said loan amount, he had issued the impugned cheque to him, the cheque being blank and bearing the signatures of the accused along with the Skoda car as security on the CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 6/ 23 same day. He placed on record the delivery receipt of the car as Ex. PW2/1. He further stated that Sh. Dimpy had also taken few blank papers signed by him. The abovestated loan amount was repaid to Sh. Dimpy but as he did not return the car and the documents, a police complaint was made against him in PS Vasant Kunj and PS Vasant Vihar which were placed on record as Mark PW2/2 (colly).
12. The brother in law of the accused Sh. Sataydeep Parashar led his evidence by way of affidavit Ex. DW3/1 wherein he stated that to his knowledge the accused had not taken any loan from the complainant. However he reiterated that his brother DW2 had taken a loan of 4.5 lacs from the complainant on 28.1.2010 and on the same day the cheque in question alongwith the skoda car of the accused as well as blank papers signed by DW2 were given to Sh. Dimpy as security. He also stated that delivery receipt for the skoda car was also executed by Sh. Dimpy in his presence on the same day.
13. The Ld. counsel for the accused also cross examined the complainant. The relevant portion of his testimony is reproduced below:
"I did not obtain any receipt in writing from the accused when I advanced the said loan. The loan was advanced in cash on Tuesday. The cash was lying with me at that time. I had disclosed the loan transaction in my Income Tax Returns for the relevant financial year. Q. Can you tell why receipt in writing was not obtained by you while advancing the amount of Rs.25,00,000/- in cash?
Ans. I was having good terms with the accused and therefore, I I did not obtain any receipt in writing.
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 7/ 23 I did not tell my counsel the exact date when I had advanced the loan. (Vol I had mentioned that it was int he last week of December)..........I do not know whether the mode of payment of loan has been mentioned in the complaint or not. (Vol. I had informed my counsel about it).....I know Mr. Prabhjeet Singh @ Dimpy for the last 8 years....I earn approximately around Rs.30,000/- to Rs.35,000/- per month as per my disclosure in the Income Tax Returns. It is also correct that the loan was advanced from the individual funds of mine......".
14. On the strength of the evidence led by the defence witnesses and the cross examination of the complainant, it was vehemently contended by the Ld. counsel for the accused that a reasonable doubt had been created in the case of the complainant. He submitted that the deposition of the defence witnesses clearly shows that the cheque in question had in fact been given to Sh. Dimpy for the repayment of a loan taken from him who was also in possession of the skoda car of the accused. Further, the claim of the complainant could not be believed as a huge sum of money had been advanced by the complainant without executing any written document.
15. It was further contended that the testimony of the complainant itself also showed that the alleged claim was not a legally recoverable liability as the loan amount in question had been advanced in cash which clearly violates the mandate of section 269 SS of the Income tax Act. It was painstakingly pointed out by the Ld. counsel that this provision requires that all transactions in the sum of 20,000/- and above must be carried out by way of cheque or demand draft. It was CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 8/ 23 therefore contended that as the alleged loan transaction had not been carried out as per law, the same was itself rendered illegal and consequently a complaint under section 138 would not be maintainable. It was also contended by the Ld. counsel that the alleged loan amount was not reflected in the ITR of the complainant and was therefore unaccounted money which could be not classified as legal consideration. Reliance was specifically placed upon the judgment of the Bombay High Court in Sanjay Mishra v. Kanishka Kapoor [dated 24.2.2009 in CRIMINAL APPLICATION NO.4694 OF 2008] and Pankajakshmi Amma & Ors. V. Mathai Mathew (dead) Through LRs and Anr. 2004 12 SCC 83 and judgment dated 26.8.2014 of the Punjab and Haryana High Court in Devinder Singh v. Raj Kumar Mittal. It was further contended by the Ld. counsel that the factum of advancement of the alleged loan amount also becomes unbelievable as the complainant has not disclosed the source of funds out of which the loan amount has been advanced nor has the existence of such a huge cash amount with the complainant been explained. It was pointed out that as per monthly income disclosed by the complainant himself his annual income did not exceed 3.6-4 lacs which in turn creates a strong suspicion about his claim of having advanced a huge sum of 25 lacs to the accused. On this aspect, the counsel referred to the judgment of the Supreme Court in K. Prakashan v. P.K. Surendran [judgment dated 10.10.2007 in Appeal (crl.) 1410 of 2007] wherein the court found that a reasonable doubt was created in the case of the complainant as the financial means of the complainant to advance the loan amount had been impeached. Lastly the Ld. counsel also sought to contend that as the cheque in question had been issued to the CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 9/ 23 complainant on the day of the advancement of the alleged loan amount itself, it was essentially a cheque given by way of security and as such it could not be said to have been issued for a legally recoverable debt or liability. In support of this submission, the Ld. counsel placed reliance upon Ms Collage Culture and Ors. v. Apparel Export Promotion Council and Anr. judgment of the Delhi High Court dated 11.10.2007 in Crl. M.C. no. 3011/2004 and Ms Balaji Seafoods Exports v. Mac Industries Ltd. 1999 (1) CTC 6.
16. In response to the arguments put forth by the Ld. counsel for the accused, the Ld. counsel for the complainant invited the attention of the court to Ex. CW1/10 (colly) and Ex. CW1/11 i.e. the ITR and cash book of the complainant for the financial year 2010 -2011 wherein the alleged loan amount given to the accused is reflected. Thereafter the Ld. counsel placed strong reliance upon Ex. CW1/9 i.e. a letter of guarantee purportedly issued by DW2 in favour of the complainant recording the factum of advancement of the loan amount as well as the issuance of the cheque in question by the accused. The complainant also referred to Ex. CW1/13 to Ex. CW1/17 to counter the allegation of the accused that there was no acquaintance between them. Lastly, it was contended by the Ld. counsel that the accused were habitual defaulters who had defrauded many other persons of their hard earned money by making false promises and Ex. CW1/18 (colly) buttressed this fact.
17. Therefore, the Ld. counsel made a strong pitch for the conviction of the accused placing reliance upon various judgments of the various High Courts and Supreme Court.
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 10/ 23
18. Having given thoughtful consideration to the relevant testimonies of the witnesses and the contentions of the Ld. counsels, upon due appreciation, I find that the defence pleaded by the accused is not credible for the following reasons.
19. To begin with, let us revisit the deposition of DW2. As already pointed out in the preceding paragraphs, his testimony is material as the defence taken by the accused is that it is DW2 who had issued the cheque in question to Sh. Dimpy to secure a loan of 4.5 lacs taken from him. The relevant portion of his testimony is reproduced below:
"I do not know the complainant i.e. Simran Pal Singh. I have never met the complainant in any manner.....I do not remember in which mode the loan amount was given to me, whether it was cash or cheque.....I know the complainant since the time he has been appearing in this case. I never had any transaction with the complainant. It is incorrect that I had borrowed a sum of Rs.10 Lacs from the complainant in November, 2009.
Q. I put to you that a promissory note in respect of the above said loan was also executed?
Ans. It is incorrect.
Q. I put to you that a financial settlement cum cancellation agreement was also executed with respect to the above said loan?
Ans. It is incorrect.
Now the witness has been confronted with the original cheque bearing no.656039 in favour of Simran Pal Singh dated 30.11.2009 CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 11/ 23 drawn on ICICI Bank, Promissory note purchased by Simran Pal Singh Suri on 30.11.2009 and financial settlement cum cancellation agreement which are Ex.DW2/A, B, C and D respectively. The witness has denied to have executed the above said documents and has stated that his signatures were obtained on a blank paper.......I do not remember how the loan was given, whether it was in cash or by way of cheque.....I have returned the same within a year but I do not remember the exact date. I remember that the same were returned in cash....".
20. The deposition of DW1 clearly exposes the falsity of the claim of the accused that he had no acquaintance with the complainant. On the contrary, it is evident that the accused has not only deposed falsely in this regard but a previous loan transaction has also taken place between the parties which is evidenced by Ex. DW2/A to D. Albeit DW2 refuted these documents stating that the same had been fabricated by the complainant, what is important to note is that the issuance of these documents to the complainant is not denied by the witness.
21. Further although it is the case of the accused and DW2 that loan was taken from Sh. Dimpy and also repaid to him, they were unable to tell the date on which the said loan was repaid and in which mode the said loan was advanced as well as repaid.
22. It is also the case of the defence witnesses that for the loan amount of 4.5 lacs obtained from Sh. Dimpy, the cheque in question alongwith Skoda car of the accused as well as blank papers signed by DW2 were given. Further with respect to the Skoda car, a delivery receipt was also got executed. I find it strange that to secure a loan of CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 12/ 23 merely 4.5 lacs, DW2 went to the extent of keeping so many valuables in the possession of the accused. Further if DW2 was cautious enough to get a delivery receipt executed at the time of giving his car to Sh. Dimpy why did the said delivery receipt not also record the factum of advancement of cheque in question and blank signed papers to him and why was the same executed only for the car.
23. Let us also examine the police complaint filed by DW2 i.e. Ex.
PW2/2 (colly) and the testimony of DW2 regarding this document. The same is reproduced below:
"I have made a complaint regarding my Skoda car bearing no.DL2FGK0081 on 01.06.2011. The cheque no. and description of the other documents is not mentioned in the complaint dated 01.06.2011. Police made a call to Dimpy and his friend Sandeep but the phone was switched of. Except this, I am not aware about any progress of the case. I have not made any other complaint regarding the same against Prabhjeet Singh and Sandeep Singh. Police officials never called me or visited my place regarding the inquiry / investigation of my complaint. I have not pursued the complaint further. Vol.: Dimpy and Sandeep assured me that they will return the papers, blank cheques and Skoda car and that is why I did not pursue my complaint in both the police stations. But till today, they have not returned my Skoda car, blank cheques and other documents.....".
24. This complaint is dated 1.6.2011 and states that Sh. Dimpy and one Sh. Sandeep have threatened him and not returned his car, cheques and other documents. Ex. PW2/2 is in the nature of secondary evidence and has been relied upon without accounting for the original.
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 13/ 23 As it has not been proved in accordance with section 65 and 66 of the Indian Evidence Act, it is not admissible and cannot be relied upon. This complaint also does not mention the number of the cheque in question and hence it cannot be correlated with the cheque in question. There is further reason to doubt the genuineness of this complaint. During deposition, DW2 himself stated that he did not pursue the said police complaints. In fact, the deposition reflects that beyond filing the said complaints, nothing further was done by DW2.
25. I now come to the other contentions raised by the Ld. counsel for the accused. I am unable to agree with the submission of the Ld. Counsel for the accused that the loan amount in question is unaccounted money of the complainant and hence does not constitute a legally recoverable debt. To begin with, this submission is factually incorrect and flies in the face of the record i.e. Ex. CW1/10 (colly) produced by the complainant. Ex. CW1/10 clearly reflects the loan amount under the head 'Loans and advances' on page 3 as well as page 25 of this record. Therefore the judgment cited at bar namely Sanjay Mishra v. Kanishka Kapoor does not come to the aid of the accused.
26. The contention of the Ld. counsel for the accused to the effect that the complainant could not disclose sufficient source of income so as to able to advance the loan amount in question also gets dispelled for the same reason. The fact that the accused is in the business of construction of filling stations is not disputed and the same is a lucrative source of income which is a justified explanation for the possession of the loan amount by the accused. Further the fact that the CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 14/ 23 accused has reflected the loan amount of 10 lacs in his ITR also creates a strong presumption that the said loan amount was in fact advanced. The previous transaction between the complainant and the accused in the sum of 10 lacs also lends further credence to the financial standing of the complainant. For the same reason, the fact that a written document was not executed in respect of the loan transaction in question ceases to have much relevance.
27. In so far as Ex. CW1/9 is concerned, it was refuted by the accused stating that DW1 had given blank signed papers to Sh. Dimpy which were misused by the complainant to fabricate Ex. CW1/9. The onus was clearly the accused and DW1 to prove so. Where signatures on papers are admitted by the accused, a presumption can be drawn under section 114 of the Indian Evidence Act that it was filled before it was signed especially when it is not the case that the accused was an illiterate person who did not have sufficient understanding of the consequences of his act. Reliance is placed upon the abovementioned judgment of the Delhi High Court in Mukesh Gupta v. P. K. Bajaj and Anr. wherein a similar contention was raised by the defendant in a recovery suit under Order 37 CPC in regard to the promissory note in question. This aspect was also eloquently dealt with by the Karnataka High Court in Lakshmamma And Ors. vs M. Jayaram AIR 1952 Kant 114 wherein it was held that:
"From the fact that an admitted thumb-impression or signature of a person is found to be affixed to evidence the execution of the document it is open to the court to presume that the person could have affixed the signature or thumb-impression for executing the document CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 15/ 23 If he says that his thumb-impression or signature found in the document was taken for attesting the document for instance though it purports to have been put in for executing the j document it is for him to prove that it is so. If it is his case that he affixed his signature or thumb-impression on a blank paper on which the document must have been written later he has to prove that fact. If he fails to do so, the presumption is against him."
28. The accused or DW2 have not led any evidence to challenge the genuineness of Ex. CW1/9. In fact the backside of Ex. CW1/9 reveals that it was purchased by DW2 himself on 20.12.2010 i.e. one day before the loan transaction in question took place (albeit during his cross examination, DW2 deposed that he had not purchased it). Having remained unimpeached, this document is a strong proof of the alleged transaction in question.
29. I am also unable to agree with the contention that as the loan transaction was effected in cash, it is not a legally recoverable debt and in my opinion the reliance placed upon Section 269 SS of the Income tax Act is misconceived. It is pertinent to note that section section 269 SS as well as section 269 T create an obligation upon the borrower to accept or repay the loan as the case may be by way of cheque or demand draft. There is no corresponding obligation upon the lender. Furthermore, the provisions of the income tax Act do not render a transaction carried out in violation of the said provisions null and void. Section 271 D and 271 E carve out a specific penalty where transactions are carried out in violation of the mandate of section 269 SS and 269 T i.e. the errant assessee is required to pay a penalty CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 16/ 23 equivalent to the amount of the loan. However this provision does not render the transaction per se invalid and void. In this context, I find it pertinent to refer to the judgment of the Delhi High Court in Mukesh Gupta v. P. K. Bajaj and Anr. dated 20.11.2006 in CS (OS) No. 1615/2003 wherein this contention was rejected for the reason that there was no statutory provision under the Income Tax Act 1961 or any other law which stipulated that a loan transaction not recorded in the Income Tax Return or a loan transaction which is in violation of Section 69-A, 69-B or Section 269SS of the Income Tax Act would be void. Reliance is also placed upon the judgment of the Supreme Court in Nutan Kumar And Ors vs IInd Additional District Judge dated 27.9.2002 wherein it has been held that:
"Unless a statute specifically provides that a contract contrary to its provisions would be void contract would remain binding between the parties and can be enforced between parties themselves. Consequences if any other would follow."
30. I have also perused the other judgments cited by the Ld. counsel for the accused in support of his submissions and I find that they do not come to the aid of the accused in any manner and are distinguishable on facts. The judgment cited in Veena Ahuja v. Central Excise [judgment dated 23.3.2011 of the Delhi High Court in Crl. M.C. no. 1430/2010] was given in an entirely different set of facts and in that case a finding of acquittal was returned as the court came to the conclusion that on the date on which cheque in question had been issued, the extent of the liability of the accused towards the Excise Department for payment of duty had not attained any finality CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 17/ 23 and this conclusion was reached on the basis of the contents of the show cause cum demand notice sent to the accused. The judgments in the case of Ms Collage Culture and Ors. v. Apparel Export Promotion Council and Anr [judgment of the Delhi High Court dated 11.10.2007 in Crl. M.C. no. 3011/2004] and Ms Balaji Seafoods Exports v. Mac Industries Ltd. 1999 (1) CTC 6 deal with the issue of security cheque. The reliance on these judgments is also now misplaced in view of the recent judgments of the Delhi High Court in the case of Suresh Chandra Goyal Vs. Amit Singhal [Crl. Appeal Nos.601/2015 decided on 14.05.2015] and Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. [dated 29 June, 2015 in Crl. L.P. no. 558/2014],which clearly hold that in a complaint case filed under section 138 of the NI Act the accused cannot escape merely on the bald plea that the cheque in question was issued by way of security as section 138 does not carve out any such exception. It was held that:
"the scope of Section 138 NI Act would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period."
31. In light of these recent judgments of the Delhi High Court the contention of the Ld. counsel that the cheque in question having been issued post dated on the date of alleged advancement of loan by the complainant was a security cheque and hence without consideration, is stale.
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 18/ 23
32. In the case of John K Abraham v. Simon C Abraham [judgment of the Supreme Court dated 5.12.2013 in Crl. Appeal no. 2043 of 2013], order of acquittal was returned on account of material defects in the testimony of the complainant i.e. the complainant did not remember the date on which the loan in question had been given, prevaricating statement of the complainant regarding who had filled up the particulars in the cheque in question and the source of funds out of which the complainant had advanced the loan amount had not been disclosed. Similarly in Vijay v. Laxman [judgment of the Supreme Court dated 7.2.2013 in Crl. Appeal no. 261 of 2013], court upheld the order of acquittal for the reason that complainant had been unable to furnish the details of the date on which the loan in question had been advanced and there was also no documentary proof with the complainant for the advancement of the loan. Further in that case the parties were in a commercial relationship and it came on record that the complainant used to take security cheques in the ordinary course of business from his customers. In S. K. Jain v. Vijay Kalra [judgment of the Delhi High Court dated 6.3.2014 in Crl. Appeal no. 1011 of 2013] a sum of 31 lacs had been advanced by the complainant and his wife to the accused and the same had not been shown in the income tax returns which led the court to cast serious doubts on the alleged claim. In John K John v. Tom Varghese and Anr. JT 2007 (13) SC 222, the court found favour with the accused on account of the conduct of the complainant in as much as it found it difficult to believe that a person would advance loan to a person whose even previous dues remained outstanding as well as the fact that no written document had been executed regarding the transaction in question. The judgments cited in CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 19/ 23 Pawan Singhal v. Gauri Shankar Deora and Anr. [judgment of the Delhi High Court dated 26.3.2012 in Crl. L.P. No. 228/2011] and M.A. Rashid v. Gopal Chandra and Anr. [judgment of the Delhi High Court dated 23.3.2012 in Crl.M.C. No. 3866 of 2008] can also be similarly distinguished having been given in different set of facts and circumstances.
Conclusion:
33. Therefore, in light of the foregoing discussion, I find that the accused has been unable to raise a reasonable doubt in the case of the complainant. Accused is accordingly convicted for the commission of the offence under section 138 of the NI Act.
Announced today in the (AAKANKSHA VYAS)
open court on 21.12.2015 MM NI ACT (WEST)/DELHI/21.12.2015
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 20/ 23
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.2459/1
Simran Pal Singh Suri,
S/o Late Sh. G.S. Suri,
R/o Flat no.77, Pocket Block JG-1,
Vikas Puri, New Delhi. .....Complainant
Versus
Ms. Urvashi Parashar,
W/o Sh. Pradeep Parashar,
R/o C-8/8283, Vasant Kunj,
New Delhi. .........Accused
15.01.2016
Order on Sentence:-
Ld. counsel for the accused has submitted that the accused is a female having the responsibility of two children both of whom are studying. It is further submitted that she is not engaged in any employment other than participation in the family business. It is further submitted that there is no previous Civil / criminal case pending against the accused. Thus, the accused has prayed for a lenient view.
CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 21/ 23 On the other hand ld. counsel for the complainant has argued that the accused and her husband are persons with malafide intentions. In support of his submission, complainant has placed on record documents obtained from the ICICI Bank which purportedly reflect that an amount of Rs. 14,67,000/- is outstanding upon the accused towards a car loan. The counsel has also submitted that various other civil and criminal cases have been filed against the husband of the accused Sh. Pradeep Parashar. In support of his submission, the counsel has placed on record copy of the orders passed by Ld. Civil Judge Ms. Prabhdeep Kaur in case titled as Omkar Pandey vs Pradeep Parashar in CC no.512/2013 and the order of dismissal of appeal filed against order of conviction, passed by Ld. ASJ Sh. Ritesh Singh, Patiala House Court, Delhi in the same case. It is further submitted that during cross examination of Sh. Pradeep Parashar i.e. the husband of the accused in the present case, it was admitted by him that 8-10 cases are pending against him. Lastly it was also submitted by the Ld. Counsel that the accused and her husband have been disowned by their family. Even the addresses furnished by the accused are fake and there is an apprehension that she will evade the process of the court. The complainant has thus prayed for award of maximum sentence and compensation.
In rebuttal, the Ld. Counsel for the accused has pleaded that the conspectus of cases which have been cited by the Ld. Counsel for the complainant are pending against the husband of the accused and the same cannot be a factor to be taken into consideration for the purpose of deciding the sentence to be imposed upon the accused. It is not the case that any civil or criminal case is pending against the accused herself. It was also pointed out that during the court proceedings in the present case, the accused has CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 22/ 23 appeared in the court on each and every date of hearing and conducted herself in a bonafide manner.
It is necessary to be mentioned here that the offences u/s 138 of N.I. Act are on high rise and in order to keep the spirit of the legislation, the accused cannot be released on probation as these offences have massive effect on the economic condition of the persons.
I have heard the arguments led by both the counsels on behalf of the parties. I have also perused the court record. The accused has been more or less regular in appearing in the court. The accused is a female having the responsibility of two children. However, I cannot loose sight of the fact that the cheque in question has been drawn in a huge amount of Rs.25 Lacs and the case has been pending in the court for almost five years. Therefore, keeping in view, the points put forth by both the parties and considering the submissions of the accused and sufferings of the complainant, I feel the ends of justice will meet if the accused is sentenced to undergo simple imprisonment of six months and is ordered to pay the compensation of Rs.35 Lacs to the complainant and in case of failure to pay the amount, the accused shall undergo further simple imprisonment of two months. Accordingly, sentence stands passed.
AAKANKSHA VYAS MM NI ACT (WEST),DELHI 15.01.2016 CC No.2459/1 Simran Pal Singh Suri vs Urvashi Parashar 23/ 23