Delhi District Court
Sh. Rohit Bhambari vs Sh. Jagdish on 19 February, 2013
:1:
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW: ROHINI: DELHI
Criminal Appeal No. 24/12
Sh. Rohit Bhambari
s/o Sh. Parmod Bhambari
rd
r/o R64, 3 Floor,
West Patel Nagar,
New Delhi110008 ..................Appellant
Versus
1. Sh. Jagdish
s/o Sh. Jai Narayan
r/o Flat no. 103,
Ekjot Apartment,
Pitampura, Delhi34
2. The State ..................Respondents
JUDGMENT
1. The appellant has filed this appeal u/s 374 Cr.P.C. 1973 challenging the judgement dated 30072012 and order of sentence dated 31072012 passed Ms. Shefali Barnala Tandon, Ld. MM, Rohini Courts, Delhi in CC no. 13519/1/10 titled Shri Jagdish Vs. Rohit Bhambri thereby convicting the appellant u/s 138 N. I. Act and sentencing him to undergo SI for a period of one Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :2: year and to pay Rs. 6 lacs u/s 357 (3) Cr.P.C. to respondent no. 1 towards compensation and in default of payment of compensation, to further undergo SI for a period of three months.
2. TCR has already been summoned. I have heard Ld. counsel for the appellant, Ld. Counsel for respondent no. 1 and Ld. APP for the State/respondent no. 2 and have perused the entire record.
3. The brief facts, as set out in the appeal, are that the complainant (hereinafter referred to as respondent no.1) gave a friendly loan of Rs. 3 lacs to the accused (hereinafter referred to as appellant) on 10112009 and appellant gave assurance to repay the alleged loan on or before 10022010. The appellant issued one cheque to respondent no. 1 bearing no. 029894 dated 15022010 for a sum of Rs. 3 lacs drawn on State Bank of Travancore, Karol Bagh, Delhi Branch which was dishonoured on 05032010 with the remarks "opening balance insufficient" vide memo dated 05032010. Respondent no. 1 sent a legal notice dated 09032010 under Registered AD and UPC but appellant Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :3: failed to pay the cheque amount to respondent no. 1. During the course of trial, respondent no. 1 examined himself as CW1 and exhibited the documents. Statement of appellant was recorded u/s 313 Cr.P.C. and after hearing final arguments, Ld. Trial Court convicted the appellant for the offence u/s 138 N.I. Act.
4. The appellant has taken the grounds among others that there is patent illegality and manifest error in the impugned judgement and order on sentence. It is admitted case of respondent no. 1 that appellant was known to him and there is probability that appellant might have given a blank signed cheque to respondent no. 1 under some degree of confidence. The respondent has not disputed the fact that cheque Ex. CW1/1 only bears the signatures of appellant and rest of the cheque was not filled up by the appellant and cheque was deposited with respondent no. 1 as a blank signed cheque only as security for repayment of the loan amount. The respondent has failed to produce any loan agreement or any account books or any ledger books to prove his allegation that he actually granted a loan to the appellant. The respondent no. 1 has also failed to file his ITR to Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :4: prove the allegation that he granted a loan of Rs. 3 lacs to appellant. The respondent no. 1 failed to file any document showing that he was having a cash amount of Rs. 3 lacs on 10112009. The respondent no. 1 has not given any explanation as to how he had granted a cash loan of Rs. 3 lacs to the appellant without obtaining any security from him as it has been alleged by respondent no. 1 that cheque Ex. CW1/1 was issued and handed over to him by the appellant after three months i.e. on 10022010. Since appellant was working under respondent no. 1, a small cash loan of Rs. 68,000/ was granted to the appellant which was recovered in instalments from the monthly salary of appellant. The Ld. Trial court has only looked into the one side of the case and ignored the other side completely. The cheque is manifestly a manipulated document and the same has been forged and manipulated by respondent no. 1. The Ld. Trial Court has wrongly observed in impugned judgement that since the appellant did not lead any defence evidence, his conviction is justified. The Ld. Trial Court has convicted the appellant only on the admission of appellant that he had signed the cheque Ex.CW1/1 and ignored the fact that appellant had not filled up and Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :5: signed other parts of the cheque.
5. The Ld. Counsel for the appellant argued that the amount of Rs. 3 lacs has not been shown in the ITR of the respondent no.1. The transaction of giving friendly loan to the appellant by the respondent no.1 allegedly made in cash but no document of source of the amount of Rs. 3 lacs has neither been produced nor proved on record by the respondent no.1 before the Ld. Trial Court. Even otherwise, no document of sale of car has been produced or proved by the respondent no.1. There is employer and employee relationship between the respondent no.1 and the appellant. However, a small cash loan of Rs. 68,000/ given by the respondent no.1 to the appellant, has been admitted by the appellant. There are different ink and hand writings over the cheque in question. The ld. Counsel for the appellant further argued that the finding fault in the accused for not leading any evidence in defence or the accused to come to the witness box to depose as a witness in his defence, is not permitted in the criminal legal system, therefore, the appellant cannot be compelled to come to the witness box in his defence. The Ld. Counsel for Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :6: appellant, in support of his arguments, relied upon the judgements reported in the case of K. Prakashan Vs. P. K. Surenderan (2008) 1 SC cases 258; Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 (1) RCR (Civil) 498; M/s Pine Product Industries & Anr. Vs. M/s. R. P. Gupta & Sons & Anr. 2007 (1) DCR 417; Vipul Kumar Gupta Vs. Vipin Gupta 2012 [4] JCC [NI] 248; Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki and Anr. 2009 CRI.L.J. 3777; P. Jayaraj Vs. R. Saroja 2007 (1) DCR 562; Binod Kumar Lall Vs. State of Jharkhand and Anr. 2009 (1) DCR 422; Sayeeda Iqbal Vakil Vs. Javed Abdul Latif Shaikh 2009 (1) DCR 622; Gopan Vs. Tonny Varghese 2009 (1) DCR 314, Ladayam Investments Vs. M. Ramasamy 2008 (2) DCR 462 and Kulvinder Singh vs. Kafeel Ahmed 2013 II AD (Delhi) 81.
6. The ld. Counsel for respondent no.1 and the Ld. APP for the State/respondent no.2 argued that the legal notice was received by the appellant which was not replied by him which means the appellant admitted the amount of Rs. 3 lacs mentioned in the legal notice dated 09032010. No complaint was filed by the appellant that the cheque was misused. Even no document Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :7: was filed by the appellant to prove that he was working with the respondent no.1. Further, the appellant neither called or examined any hand writing expert nor the cheque was requested to be sent to the FSL to prove that the different inks and hand writings over the cheque. However, the appellant has admitted the cash loan amount of Rs.68,000/ given to him by the respondent no.1 which shows that the appellant was in the habit of taking loans from the respondent no.1. The issuance of cheque has also been admitted by the appellant in his statement u/s 313 Cr.P.C. and also in the application u/s 145 (2) N.I. Act filed by him before the Ld. Trial Court. The Ld. Counsel for respondent no. 1 in support of his arguments, relied upon the judgements reported in the case of V.S. Yadav Vs. Reena 2010 LE (Del) 404; Rangappa Vs. Sri Mohan 2010 STPL (Web) 351 SC; Rajesh Agarwal Vs. State & Anr. Crl. M. C. no. 1996/2010 & Crl. M. A. No. 7672/2010 decided on 28072010 by the Hon'ble High Court of Delhi; Madhukar V. Desai Vs. Shaikh Abdul Riyaz, IV (2007) BC 475; Basheer Vs. T. N. Radhakrishnan, I (2007) BC 408; Bharat Barrel and Drum Manufacturing Co. Vs. Amin Chand Pyarelal decided on 18021999 by Hon'ble Supreme Court of India and Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :8: M/s M.M.T.C. Ltd. & Anr. Vs. M/s Medchl Chemicals & Pharma P. Ltd & Anr., Crl. A. no. 11731174 of 2001 and SLP (Crl.) no. 289290 of 2000 decided on 19112001.
7. I have carefully perused the records and found that the respondent no.1 Jagdish examined himself as CW1 and in his evidence by way of affidavit Ex.CW1/A he stated that the appellant and the respondent no.1 were known to each other for the last several years. In the month of November, 2009, when the appellant was facing financial crisis, he approached to the respondent no.1 for friendly loan of Rs. 3 lacs and due to friendly relationship with the appellant, the respondent no.1 gave a friendly loan of Rs. 3 lacs to the appellant in cash on 10.11.2009 and the appellant assured the respondent no.1 to repay the said loan amount on or before 10.02.2010. The respondent no.1 further stated in the affidavit Ex.CW1/A that after the expiry of three months i.e. 10.02.2010, the respondent no.1 demanded back the loan amount from the appellant, however, the appellant issued one cheque of Rs. 3 lacs vide cheque no. 029894 dated 15.02.2010 drawn on State Bank of Trauancore, Karol Bagh, Delhi Branch Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :9: with the assurance that the same will be honoured at the time of its presentation. The said cheque was proved by the respondent no.1 as Ex.CW1/1. As per instructions of the appellant, the respondent no.1 deposited the said cheque in his bank account but he shocked and surprised to know that the same has been dishonoured on 05.03.2010 with the remarks "Opening balance insufficient funds as per bank return memo dated 05.03.2010"
which has also been proved by respondent no.1 as Ex.CW1/2. The respondent no.1 further stated in his affidavit Ex.CW1/A that despite various repeated demands, requests and reminders made by the respondent no.1 the appellant did not make the payment of the said dishonoured cheque. The appellant issued the cheque to the respondent no.1 with the fraudulent and dishonest intention knowing it very well that the aforesaid cheque would not be encashed when the same will be presented in the bank of the appellant due to the opening balance insufficient. The respondent no.1 also stated in the affidavit Ex.CW1/A that he had got served a legal demand notice through his counsel dated 09.03.2010 which has been proved as Ex.CW1/3 through registered AD as well as UPC by receipt dated 09.03.2010 Ex.CW1/4 and Ex.CW1/5. The Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :10: respondent no.1 further stated in affidavit Ex.CW1/A that despite service of the legal notice dated 09.03.2010, the appellant failed to pay the amount of Rs. 3 lacs to the respondent no.1.
8. During cross examination CW1/respondent no.1 deposed that he is doing his business of sale and purchase of cars in the name and style of Shubham Motors at I313, Karampura, Moti Nagar, Delhi for the last seven years and he is the sole proprietor of the same. CW1 also deposed in his cross examination that he has maintained the bank account in his own name as well as in the name of his business concern i.e. M/s Shubham Motors. CW1 is also maintaining his personal account in the bank namely Bank of Nainital Bank and a separate account in the HDFC Bank in the name of his business concerns. CW1 also stated in his cross examination that he had not withdrawn the amount of Rs. 3 lacs from any of the abovesaid banks on 10.11.2009. However, CW1 volunteered that he had sold a car and he had cash in hand to give to the appellant. CW1 admitted that he has not filed any documents regarding sale and purchase of any car dated 10.11.2009 in the courts. CW1 volunteered that Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :11: he has in his possession a delivery note which he can file in the court since he was not aware that it must be filed in the court. CW1 further stated in his cross examination that he has been filing his income tax returns in his own individual name and not in the name of his business concern M/s Shubham Motors. CW1 also stated that he has been filing ITRs for the last 89 years and he has also filed his ITRs for the years 200809 and 200910. However, he has not shown the said amount of Rs. 3 lacs in his ITR papers. CW1 denied the suggestion that he was not having Rs. 3 lacs cash with him as on 10.11.2009. CW1 further denied the suggestion that the accused was working as Manager in M/s Shubham Motors during the period of year 2008 to February, 2010. CW1 also denied the suggestion that he was acquainted with the appellant for the only reason that he was an employee. CW1 further denied the suggestion that there was a relationship of employer and employee between him and the appellant. CW1 also denied the suggestion that he had granted a loan of Rs. 68,000/ only to the appellant as he used to be his employee. CW1 further denied the suggestion that he had taken the blank signed cheque Ex.CW1/1 from the appellant as security for the Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :12: repayment of loan amount of Rs. 68,000/. CW1 also denied the suggestion that the cheque Ex.CW1/1 only bears the signature of the appellant and rest of the body of the cheque has not been filled up by the appellant. CW1 volunteered in his cross examination that when the appellant came to him, the cheque was already filled up except the signature and the appellant signed the aforesaid cheque in his presence. CW1 also denied the suggestion that the appellant had taken only Rs. 68,000/ from him which he has repaid to him and on several demands he has not returned the security cheque to the appellant.
9. I have also perused the judgment passed by the Ld. Trial Court on 30.07.2012 and found that the Ld. Trial Court after perusing the materials placed on record and appreciating the evidence on record considered that the respondent no.1 proved on record the legal enforceable debt against the appellant. The cheque was drawn from the account of bank of the appellant for discharge of liability which presupposed the legal enforceable debt and also that the cheque issued by the appellant to the respondent no.1 had been returned due to insufficiency of funds. Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :13: The Ld. Trial Court also found that the respondent no.1 had initially discharged his burden of proof and the onus shifted to the appellant for rebutting his liability towards the respondent no.1. The relation between the appellant and the respondent no.1 is not disputed. Further, receipt of legal notice was also admitted by the appellant in his statement u/s 313 Cr.P.C. Moreover, the appellant also admitted his signatures on the cheque in question. Therefore, the respondent no.1 proved all the ingredients of section 138 of N.I. Act.
10. In view of the above facts and circumstances and the judgements relied upon by the appellant and the respondent no.1, I am of the considered opinion that there is no dispute regarding relationship of the appellant and the respondent no.1. The appellant has admitted the issuance of cheque, signature on the cheque and also the legal notice served upon him. Despite service of the legal notice, the appellant did not opt to reply to the legal notice. Even otherwise, the appellant also admitted the cash loan amount of Rs. 68,000/ advanced to him by the respondent no.1. Meaning thereby it establishes that there was a loan amount Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :14: given to the appellant by the respondent no.1 and due to which the cheque was issued by the appellant in favour of the respondent no.1. The plea has been taken by the appellant that no document of friendly loan amount of Rs. 3 lacs has been proved by the respondent no.1. Whereas, the appellant has also not proved on record any document to the effect that it was a cash loan amount of Rs. 68,000/ and not the friendly cash loan amount of Rs. 3 lacs. Mere statement under section 313 Cr.P.C. of the appellant without leading any cogent evidence would not give any amount to rebutting the presumption raised under section 139 of N.I. Act since the appellant has to prove the circumstance under which the cheque was issued. The appellant stated in his statement under section 313 Cr.P.C. that he wanted to lead defence evidence but he failed to lead any defence evidence, reasons are best known to him. The respondent no.1 has proved on record the debt which is legally recoverable from the appellant. The respondent no.1 has further proved on record that the cheque was issued for discharge of debt. The respondent no.1 in his complaint and in his examination in chief as CW1 categorically stated that on 10.11.2009, he advanced a friendly loan of Rs. 3 Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr :15: lacs to the appellant. The aforesaid judgements relied upon by the Ld. Counsel for the appellant are not applicable to the facts and circumstances of the present case. Therefore, I do not find any illegality or infirmity in the judgement dated 30072012 and order on sentence dated 31072012 passed by the Ld. Trial Court. Accordingly, this appeal is devoid of merits and the same is dismissed. The appellant is taken into custody and sent to J/C to serve the sentence of one year SI and also directed to pay a compensation of Rs. 6,00,000/ to the respondent no. 1 Jagdish under section 357(3) Cr.P.C. and in default, to undergo SI for a period of three months. Copy of this order be given to the appellant free of cost. TCR along with copy of this order be sent back and thereafter appeal file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT On 19.02.2013 Crl. A. No. 24/12; Rohit Bhambri Vs. Jagdish & Anr