Delhi District Court
M/S Union Bank Of India ... Complainant vs . on 24 August, 2011
IN THE COURT OF SH.SUSHIL ANUJ TYAGI
METROPOLITAN MAGISTRATE: DWARKA COURT:NEW DELHI
CC No. 3316/09
IN THE MATTER OF
M/s Union Bank of India ... Complainant
having its head Office at
Vidhan Bhawan Marg, Nariman Point,
Mumbai 400 021 and one of its branch at
52, Sunder Nagar, New Delhi
Vs.
Sh. Chander Prakash Srivastava ... Accused
Qr. No. 92/S8, R.K. Puram, New Delhi
Also at
Asstt. (Admn.),O/o CPWDIV,
MSO Building, PWD,New Delhi
Date of institution of case : 09.05.2003
Date of reserving Judgment : 08.08.2011
Date of pronouncement : 24.08.2011
JUDGMENT
1. Serial No. of the case : 3316/2009
2. Name of the complainant : Union Bank of India
3. Name of the accused : Chander Prakash Srivastava
4. Offence complained of : S.138 N. I. Act, 1881
5. Plea of accused : Pleaded not guilty
6. Final Order : Convicted
7. Date of such order : 24.08.2011 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. This is a complaint under section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. Succinctly, the facts of the case as per the complainant are that the accused availed loan of Rs. 70,000 from the complainant company under Union Comfort Loan Scheme and the accused has issued cheques bearing no. 299968 dated 07.12.2002, 299969 dated 07.01.2003, 299970 dated 07.02.2003 each drawn on Indian Overseas Bank for an amount of Rs.3400/ each to the complainant towards the partial discharge of liability which got dishonoured on presentation for the reason "Insufficient Funds"
vide return memo dated 28.02.2003. The complainant sent legal notice dt. 26.03.2003 to the accused vide speed post on 28.03.2003 and despite service the accused did not paid the cheque amount. Hence the present complaint was filed against the accused by the complainant through its authorized representative (hereinafter referred to as "AR") on 09.05.2003.
3. The AR was examined under section 200 Code of Criminal Procedure (hereinafter referred to as "CrPC") by way of tendering of presummoning affidavit on 01.08.2003. After being satisfied that prima facie ingredients of Section 138 NI Act are made out, cognizance was taken and accused was summoned under section 204 CrPC consequent to which the accused entered appearance and the notice under section 251 CrPC was served on the accused to which he pleaded not guilty and claimed trial. The accused took a defence that the details on the cheques were not filled by him and he had only signed the cheques and that blank signed cheques were given to the complainant at the time of grant of loan. Accused has admitted his signatures on the cheque but denied receipt of legal demand notice in the admission/ denial of the documents.
4. In Complainant's evidence, the AR (CW 1) tendered his post summoning evidence Ex CW 1/A and relied on documents:
Ex CW 1/A Copy of power of attorney in favour of Sh.A.K.
Gulati
Ex CW 1/A1 Copy of power of attorney in favour of
Sh.Subhash Chand
Ex CW 1/B1 to B3 Original cheques in question.
Ex CW1/C Certified copy of return memo.
Ex CW1/D Legal notice
Ex CW1/E Speed post receipt
Ex CW 1/F Complaint
5. The CW1 was examined, crossexamined and discharged. The Complainant evidence was closed.
6. The accused was examined under section 313 CrPC where all the incriminating evidence was put to the accused. It was stated by the accused that he had taken the loan of Rs. 70,000/from the complainant under Union Comfort Loan Scheme and the loan was for 24 months and not 36 months. He further stated that the complainant had taken 24 blank cheques from him which were signed by him before granting the loan to him. He admitted the dishonour of present cheques in question but submitted that complainant did not informed him before presentation of cheques in question and also he did not know when the impugned cheques were presented. The accused also denied receiving the legal demand notice. Accused also stated that at the time when the loan was sanctioned to him, it was also sanctioned to two other persons and at that time the Bank Manager was Mr. Sharma and that Bank Manager had taken Rs. 25,000/ in cash from him and also from same two other persons on the premise that EMI ("Equated Monthly installment") shall be paid in cash so that there is no default. The accused stated that he wants to lead defence evidenct however record reveals that that despite four adjournments no defence witness was produced by the accused and opportunity to lead defence evidence was closed on 04.07.2011 and the matter was fixed for final arguments.
7. During the final arguments, the learned counsel for the complainant submitted that the loan of Rs. 70,000/ was granted to the accused under Union Comfort Loan Scheme for 24 months with EMI of Rs.3400/ each. It is submitted that the impugned cheques were issued by the accused towards the payment of EMI, which were dishonoured on presentation, and therefore the accused had committed the offence under Section 138 N.I. Act. It is further submitted that all the ingredients of Section 138 NI Act are complied with. It is further contended that though the acknowledgment card for Registered AD has not received back still the presumption of service lies in law under Section 27 General Clauses Act and Section 114 of Evidence Act. It is further submitted that since the accused had not led any evidence the presumption of service of legal demand notice has not been rebutted. Reliance was placed on CC Alavi Haji Vs. Palapetty Muhammed & Anr. in 2007[2]JCC [NI] 225 and First Learning Quest Private Ltd. & Anr. Vs. Tera Construction Private Ltd. in 2008[3]JCC [NI] 274. Further it is contended that since the accused has not led any evidence the case of the complainant is completely proved as suggestions for statement of accused under Section 313 Cr PC are not evidence. It is contended that presumption under Section 139 and 118 NI Act is in favour of the complainant and the accused can rebut these presumptions by leading evidence to the contrary and not by leading no evidence. Reliance was placed on V.S. Yadav Vs. Reena in 172(2010) Delhi Law Times 561. It is further contended that the defence of the accused that PDCs including the impugned cheques were given for security and not for legally enforceable liability is not sustainable in the eyes of law. It is submitted that in the judgment passed by Hon'ble Mr. Justice S.N. Dhingra in Magnum Aviation (Pvt) Ltd v State & Ors 172 (2010) DLT 91, it was held that the cheque issued at the time of signing of contract are issued for liability. It is contended that the accused is liable to be convicted.
8. On the other hand, the ld. Counsel for the accused contended that there are serious inconsistency in the statement of CW 1 and therefore, the statement of CW 1 is not reliable. It is further contended that the mode of payment for the impugned loan account was "instructions to banker" and not through cheques which is evident from page 3 of Loan Agreement Ex CW 1/X1. It is further submitted that the CW 1 during the cross examination has admitted that the Postdated cheques (herein after referred to as PDCs) including the impugned cheques were taken before the disbursal of the loan and the said fact is corroborated by the loan application form which was signed on 28.11.2001 and the sanctioning of loan on 29.11.2001 where it was mentioned "PDCs obtained". It is further urged that even if for the sake of argument it is assumed that the cheques were issued towards the payment of loan, still these cheques do not attract the penal provisions of Section 138 NI Act as the cheques were admittedly given before the disbursal of the loan at which time there was no subsisting debt or liability. To support his contentions, the learned counsel for the defence relied upon Ramakrishna Urban Cooperative Credit Society Ltd. v. Rajendra Bhagchand Warma 2010 STPL(DC) 891 BOM : II (2010) BC 481 & M/S. Collage Culture & Ors. v. Apparel Export Promotion Council & Anr. 2008 STPL(DC) 532 DEL, M.S. Narayana Menon @ Mani vs. State of Kerala & Anr., 2006 (2) JCC [NI] 198 : 2006 (6) SCC 39 . It is further argued that the accused has not received the legal demand notice and the complainant had not proved the same. It is further argued that the CW 1 has himself deposed that he does not know whether the legal demand notice was served on the accused or not. It is submitted that accused is entitled to be acquitted in these facts and circumstances.
9. The first question that has levelled up before this court is whether the accused has received the legal demand notice as envisaged under section 138 N.I. Act. In the instant case, the legal demand notice Ex CW1/4 was sent to the accused vide speed post receipt Ex CW1/5. The internet generated report Ex CW 1/8 shows that the consignment has been delivered. The complainant has proved the delivery of legal demand notice by internet generated report CW1/8 of the speed post. The authenticity of the report is not disputed by the defence nor any postal witness is examined by the defence to disprove the service of legal demand notice. The only plea raised by the defence is that the report does not mention to whom the legal demand notice has been delivered. The burden lies on the accused to show that he has not received the legal demand notice which the accused has failed to discharge. In a celebrated judgment titled as K. Bhaskaran Versus Sankaran Vaidhyan Balan 1999 Cri LJ 4606, the Apex court observed:
"23. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
It is for the accused to show that he has not received the legal demand notice or that the non service of notice is not due to his fault. In the present case, the accused has done neither. The accused is residing at the same address at which the legal demand notice was sent. The address of the accused on the vakaltnama and the bail bonds is same as on the legal demand notice. Mere denial under section 313 CrPC, of the receipt of legal demand notice is no evidence. Moreover, the notice is deemed to have been served on the accused if the requirements of Section 27 General Clauses Act, 1867 are met. Section 27 reads:
"27. Meaning of service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression"
serve" or either of the expressions" give" or" send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
10. It is quite clear from the plain and lucid wordings of the provisions under section 27 General Clauses Act and Section 114 Indian Evidence Act, that any prepaid registered letter sent through post is deemed to be served in ordinary course. Thus the presumption in the present case stands against the accused. No evidence has been led by the accused to disprove the fact of service of legal demand notice and to rebut the presumption. In the light of these facts and circumstances, this court comes to the conclusion that the accused was served with the legal demand notice as envisaged u/s 138 N.I. Act.
11. The next main question in the present case revolves around as to whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act.
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
12. Undoubtedly, it is a sine qua non for constitution of the offence u/s 138 NI Act that the cheque must have been issued for the discharge in whole or in part of legally enforceable liability or debt. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI in favour of the payee or holder in due course. The said sections are reproduced below:
"139. Presumption in favour of holder It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) ............................................................................"
13. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. Thus, it is now well established that the accused can prove the nonexistence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in crossexamination of witness adduced by the complainant.
14. Now on the factual matrix of the case, indisputably, the accused was granted a loan of Rs. 70,000/ in November 2001 which was to be repaid in 24 EMIs of Rs.3400/ each. The first defence of the accused is that the PDCs were handed over to the complainant before the disbursal of loan for security. During the crossexamination, the CW1 deposed inconsistently relating to the handing over of the PDCs. On page 3 of Ex CW 1/X1 at point B it is written "Rs.70,000/ Union Comfort Loan to Sh. Chander Prakash Srivastava, Government Employee payable in 24 EMIs of Rs. 3400/ per month w.e.f. January 2002. PDCs obtained". The aforesaid endorsement is dated 29.11.2001. and the application of the accused is dated 28.11.2001 which is page 4 & 5 of Ex CW 1/X1. Thus, it cannot be ruled out that the PDCs may have been handed over prior to the disbursal of the present loan i.e. on 29.11.2001. But the question that still haunts is whether the cheques were for security or for liability. To my mind, the impugned cheques were for liability and not for security for the reasons as follows. The mere fact that the cheques were handed over prior to the disbursal of loan does not render them security cheques. The cheques may be classified as security only when they are given towards some contingent event which may or may not arise in future. In the present case, the loan was payable in 24 EMIs and the number of PDCs handed over were also 24 in number. It is conspicuous that the post dated cheques were issued by the accused towards the payment of EMI only. Moreover, no defence evidence has been led to prove that the cheques was handed over for security. It is also not disputed that the accused has paid only one EMI in cash only after the dishonour of a cheque. No objection is apparently on record, regarding the use/misuse of PDCs before the institution of present complaint. In these circumstances, the only possible inference that can be drawn is that the PDCs including the impugned cheques were issued by the accused for the payment of EMIs and not for security. Thus it can be safely said that the impugned cheques lies within the four corners of Section 138 NI Act. Since this court has concluded that the impugned cheques are not security cheques, therefore, the cases i.e. Ramakrishna Urban Cooperative Credit Society Ltd. v. Rajendra Bhagchand Warma (supra), M/S. Collage Culture & Ors. v. Apparel Export Promotion Council & Anr. (supra) & M.S. Narayana Menon @ Mani vs. State of Kerala & Anr., (supra) relied upon by the defence are not applicable to the present case.
15. The next defence of the accused is that the mode of repayment was "standing instructions to bank" and not "PDCs". The mode of repayment is mentioned as "standing instructions to the bank" at page 3 of Ex CW 1/X1. What is important to be observed at this juncture is that, the Page 3 of Ex CW1/X1 is the page of the application form filled by the accused. It was the option for the accused to fill any mode of repayment of loan in the application form which he did. Now the question that arises is whether "standing instructions to bank" was really the mode of payment of EMIs or not. The answer to this comes comes in negitive to my mind. If the mode of repayment was "standing instructions to bank" then the accused could have easily shown whether he has given any instructions to the banker for repayment of EMIs. No form or letter giving instructions to banker for payment of EMIs is proved on record. No questions were asked on behalf of the accused relating to the use of "standing instructions to banker" by the complaiant. Not a single instance of dishonour of "standing instructions to banker"
has been proved on record in the present case. Thus, the contention/defence that the mode of repayment was "standing instructions to banker" is without any cogent evidence and therefore is not reasonably acceptable. In these facts and circumstances, it can be logically inferred that the impugned cheques were given for repayment of EMIs only. The impugned cheques cannot be said to be security cheques merely on the fact that they were handed over prior to disbursal of loan as they were not issued towards some contingency but for repayment of EMIs of loan.
16. It is also important at this juncture to consider the allegation of the defence that the impugned cheque was issued in blank by the accused to the complainant. Section 20 of the N.I. Act reads:
"20. Inchoate stamped instruments -- Where one person signs and delivers a paper stamped in accordance with the law relating to negotiable instruments then in force (India) and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount.
Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
The bare perusal of Section 20 NI Act reveals that the holder of the cheque has implied authority to complete the blanks in the cheque. The filling of details in the blank cheque perse does not attract the provisions of section 87 NI Act. In other words, the completing of blank cheque by the holder cannot be said to be material alteration in the cheuque. It is no law that for a cheque to be valid the contents must be filled by the drawer. Moreover, nothing contrary has been proved to show that the complainant does not have the implied authority to fill the blank cheques. Thus, the defence of the accused that he has not filled the contents in the impugned cheques is not tenable in the eyes of law. Reliance is placed by this court upon the following judgments.
17. In Ravi Chopra v.. State and another(Delhi) (Cri.M.C. Of 2006 And Cri M.A. NO8961 of 2006) the Hon'ble Delhi High Court, after reviewing the case law on the subject, held in para 20:
"a collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provisions in the NI Act which either defines the differences in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a materialteration for the purpose of section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore, as long as the cheque has been signed by the drawer, the fact that the ink in which the name and different from the ink of the signature is not a material alteration for the purpose of section 87 NI Act."
18. In MOJJ Engineering Systems Ltd. And Ors. v. A.B. Sugars Ltd. 154 (2008) DLT 579, it was observed:
"7. Even otherwise, prime facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In Young v. Grote , (1827)4 Bing. 253. it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in Scholfield v. Lord Londesborough, (18951899) All. ER Rep. 282. it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he has left. This common law doctrine was also affirmed by Justice Macnaghten in Griffiths v. Dalton, (1940) 2 KB 264, where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in Section 20 of the Negotiable Instruments Act, which deals with Inchoate Stamped Instruments. The Supreme Court in T. Nagappa v. Y.R. Murlidhar, (2008) 5 SCC 633. while discussing the scope of Section 20 held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the older thereof is authorized to complete the incomplete negotiable instrument. In that vicircew of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial."
19. Before parting with this judgment, it is pertinent to mention that the CW1 has given false evidence on oath, knowingly and willingly, with the ulterior motive to gain the conviction of the accused. The detailed reasons for such observation are given in the separate order of even date disposing the application u/s 340 CrPC. FINAL ORDER
20. In the light of above discussions and observations, this court concludes that the complainant has proved his case against the accused beyond reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. The accused has miserably failed to rebut the legal presumptions or to prove his defence on preponderance of probabilities. The accused Chander Prakash Srivastava is hereby convicted for the offence under Section 138 NI Act.
21. Put up for hearing on quantum of sentence.
Announced in the open Court on 24rd day of August, 2011 (Sushil Anuj Tyagi) Metropolitan Magistrate Dwarka, New Delhi 24.08.2011 IN THE COURT OF SH.SUSHIL ANUJ TYAGI METROPOLITAN MAGISTRATE: DWARKA COURT:NEW DELHI CC No. 3316/09 IN THE MATTER OF M/s Union Bank of India ... Complainant Vs. Sh. Chander Prakash Srivastava ... Accused ORDER
1. Vide this order I shall dispose off the application filed by the applicant/accused under section 340 read with Section 195 (1)(b) Cr PC.
2. In the application it is alleged that the Authorised Representative (AR)/CW1 Sh. Subhash Chand has falsely deposed before the court which is evident from the post summoning evidence and his crossexamination. It is urged on behalf of the applicant that there are several contracdictions and insconsistencies in the deposition of CW1 and therefore it is a fit case for intiating enquiry u/s 340 CrPC.
3. A reply to the application has been filed by the repondent/complainant mainly on the grounds that the application is false, frivolous and is filed only to prolong and delay the trial. It is submitted that they are minor contradictions in the deposition of CW1 however they are due to the fact that the deposition is made after a span of 8 years. It is further submitted that the any contradiction is without any malafide intention. It is further submitted that another reason for contradiction may be where the CW1 has not seen the documents.
4. I have heard both the parties and perused the material on record.
5. In the present case, the bare glance at the crossexamination of CW1 reveals a number of contradictions. The main contradictions relates to the point of time of giving taking of the cheques and number of EMIs.
6. To deal with the first contradiction, the post summoning affidavit Ex.CW1/A sworn by CW1 mentions in para 2 that the loan was payable in 36 EMIs however during the cross examination of CW1, the endorsement on application form was put to CW1 which showed that the loan was payable in 24 EMIs. To my mind, the fact that the loan was repayable in 24 EMIs is apparently clear from the endorsement on application form and such discrepancy in the number of EMIs hardly effects the merits of trial. Moreover, such discrepancy is abundantly clarified in the reply filed to the present application by the respondent. The Annexure A to the reply shows the application form and the terms and conditions of the Union Comfort loan. It provides that the repayment of loan was to be in 36 EMIs. It is also clarified that the number of EMIs were reduced at the request of the accused. Thus, the mistake by CW1 in his deposition relating to the number of EMIs may not be said to be intentional and is thereby not appropriate subject matter of S.340 CrPC.
7. Now, coming to the second contradiction in the deposition of CW1, on 22.02.11 the CW1 during crossexamination deposed that the cheques in question were given at the time of sanctioning of loan however in the later part of the crossexamination, CW1 deposed that the cheques were taken from the accused after sanctioning and disbursal of the loan. It is important to reproduce the relevant extract here:
".................The cheques in question were given to the bank at the time of sanctioning of loan....................................................The cheques were taken from the accused after sanctioning and disbursal of loan. ................ The cheques were taken from the accused in the first week of January 2002."
8. Even after the production of the loan application form and the other documents, the CW1 deposed during crossexamination on 15.04.11 that the post dated cheques were handed over by the accused after the disbursal of loan, however later during the same crossexamination, CW1 deposed that the cheques were taken before the disbursal of the loan. It again becomes important to reproduce the relevant extract from the cross examination of CW1 on 15.04.11:
"........................................It is correct that the post dated cheques were handed over by the accused after disbursal of the loan................................................................It is correct that the cheques in question were taken at the time of sanctioning of loan for repayment of loan and the cheques were taken before the disbursal of the loan to the accused in his account.............."
9. The CW1 has changed his stand only when the attention of CW1 was drawn to the endorsement of sanction on the application form Ex. CW1/X1 (page 3) which is reproduced below:
"Rs.70,000/ Union Comfort Loan to Sh. Chander Prakash Srivastava, Government Employee payable in 24 EMIs of Rs. 3400/ per month w.e.f. January 2002. PDCs obtained".
From the aforesaid endorsement which is dated 29.11.2001, it is abundantly clear that the PDCs were obtained from the accused on or before 29.11.2001 i.e. on or before the disbursal of loan. Moreover, CW1 admitted that he was not present when the cheques were handed over to the complainant. In these circumstances, it is apparent that CW1 has deposed without any cogent basis and with sole intention to tilt the case in complainant's favour. If CW1 did not have personal knowledge or if CW1 has not seen the documents, he may have refused to answer the questions or suggestions put by the defence, he was not supposed to give false statements on oath. CW 1 has specifically deposed that the cheques in question were taken in January 2002 after the disbursal of loan. Conspicuously it shows the ulterior objective to strengthen complainant case and to given conviction of accused. Thus, this court comes to the finding that the CW1 has knowingly and willingly given false evidence before this court.
10. The witness deposes before the court on Oath and on his deposition the liberty of the accused may come at stake. Thus it becomes absolutely necessary for the court to curb these like instances of perjury.
11. Now, in Manila Vinod Kumari v. State of M.P. 2008 CRI. L. J. 3867, it has been observed by the Apex court that:
6..............The purpose of enacting Section 344, Cr.P.C. corresponding to Section 479A of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Old Code') appears to be further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury, and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they are failed to take action under Section 344 Cr.P.C.
7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479A which did not have the desired effect to eradicate the evils of perjury...............
"8. For exercising the powers under the section the Court at the time of delivery of judgment on final order must at the first instance express art opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. [See Narayanswamy v. State of Maharashtra, (1971) 2 SCC 182]. AIR 1971 SC 1789
9. The object of the provision is to deal with the evil perjury in a summary way.
10. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done."
12. In the present facts and circumstances, this court is of the view that it would not expedient in the interest of justice to pursue the present complaint under Section 340 CrPC. However, this court has concluded that the CW1 has given false evidence knowingly and willing before this court and, therefore, this court is of the view that the offender Subhash Chand be tried summarily. This court deems it fit to proceed under section 344 CrPC against AR/Sh.Subhash Chand. Accordingly, I take cognizance u/s 344 CrPC.
13. The AR/ Sh.Subhash Chand is hereby directed to show cause why he should not be punished for giving false evidence before this court.
14. Copy of this order be given dasti to the offender/ Sh. Subhash Chand. Announced in the open Court on 24rd day of August, 2011 (Sushil Anuj Tyagi) Metropolitan Magistrate Dwarka, New Delhi 24.08.2011